The opinion of the court was delivered by: Robertson, District Judge.
Defendants have moved to dismiss plaintiff's complaint under
Fed.R.Civ.P. 12(b)(1) asserting that the Court lacks subject
matter jurisdiction. Plaintiff sues under Title VII of the 1964
Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and
the Rehabilitation Act of 1973. Because only the "head of the
department" may be sued in a Title VII or Rehabilitation Act suit
against the government, 42 U.S.C. § 2000e-16(c);
29 U.S.C. § 794a(a)(1), the claims against all defendants except Secretary
Daley must be dismissed. The claims against Secretary Dale must
also be dismissed because plaintiff's resort to her
administrative remedy was untimely.
It is undisputed that, on February 11, 1997, plaintiff was
issued, and acknowledged receipt of, a "Notice of Right to File A
Discrimination Complaint Within 15 Calendar Days," pursuant to
the regulations of the Equal Employment Opportunity Commission at
29 C.F.R. § 1614.105(d). More than fifteen days later, on March
3, 1997, plaintiff filed an employment discrimination complaint
with the agency's Office of Civil Rights (Def.Ex.2). In a Final
Agency Ruling on April 1, 1997, the agency dismissed the
complaint as untimely on the grounds that plaintiff's complaint
was filed five days beyond the fifteen-day limit set by the
EEOC's regulations. (Def.Ex.3). Plaintiff filed a timely appeal
of the Final Agency Decision, but on February 19, 1998, the EEOC
affirmed the Agency's final decision. The EEOC found that
plaintiff failed to "submit adequate justification, pursuant to
29 C.F.R. § 1614.604(c), for extending the filing period beyond the
fifteen days." (Def.Ex.4).
Plaintiff sued the Secretary of Commerce, naming several other
defendants in their official capacities, on May 13, 1998.
Defendants moved to dismiss or in the alternative for summary
judgment on July 27, 1998. Plaintiff then filed a response on
August 5, 1998. Defendants filed a reply, to which plaintiff
filed an "Answer to Defendants' Motion to Dismiss, Or in the
Alternative for Summary Judgment," on August 31, 1998.*fn1
An EEOC complainant must file a formal complaint within fifteen
days of receiving notice of her right to do so.
29 C.F.R. § 1614.106(b). Failure to do so constitutes a failure to exhaust
administrative remedies and is grounds for dismissal. Singleton
v. Harbin, 1996 U.S.Dist. LEXIS 4865. The fifteen-day, filing
requirement is subject to equitable tolling, Saltz v. Lehman,
672 F.2d 207, 208-09 (D.C.Cir. 1982), but, in order to invoke
equitable tolling, a complainant must establish that she acted
diligently to preserve her claim. Baldwin County Welcome Center
v. Brown, 466 U.S. 147, 151, 104 S.Ct. 1723, 80 L.Ed.2d 196
The record offers no evidence that plaintiff acted diligently
to preserve her claim. The sign-in/sign-out log at plaintiff's
office indicates that she was at work for every business day of
the fifteen-day period except the last. (Declaration of Harvey
Philips at 1.) Employment records indicate that plaintiff
requested no sick leave during the fifteen-day period. Id.
Plaintiff's supervisor "do[es] not recall Ms. Wilkins complaining
of painful medical treatments or transportation problems during
that period." Id. Because the record offers no evidence of a
legitimate reason why plaintiff did not file on time, or evidence
that plaintiff acted diligently to preserve her claim, she may
equitable tolling. The suit against Secretary Daley must
accordingly be dismissed.
In a suit against the federal government under either Title VII
or the Rehabilitation Act, only the "head of the department" may
be sued, 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(1). The
claims against all other defendants will be dismissed for failure
to name a proper party defendant.
An appropriate order accompanies this memorandum.
Upon consideration of defendants' motion to dismiss, or in the
alternative for summary judgment, it ...