seeking relief from federal courts." McCarthy v. Madigan, 503 U.S. 140,
144-45, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992). Thus, a party must timely
file all applicable administrative complaints and appeals in order to
bring a claim in federal court. See Bowden v. United States, 106 F.3d 433,
437 (D.C.Cir. 1997). Moreover, "[b]ecause untimely exhaustion of
administrative remedies is an affirmative defense, the defendant bears
the burden of pleading and proving it." Id.
In this case, the plaintiff admits that she filed her administrative
complaint three days after the 15-day time frame had elapsed. See Compl.
at 3; see also Mot. to Dis. at 2; see also 29 C.F.R. § 1614.105 (d)
(stating 15-day requirement). Accordingly, the defendant has met its
initial burden of proving the plaintiff filed late.
The plaintiff, though, can overcome the defense of untimely exhaustion
by pleading facts that support an equitable exception to this rule. See
Bowden, 106 F.3d at 437; Childs v. Runyon, 1996 WL 1186995, *6 (D.D.C.
1996). The plaintiff contends that this court should deny the defendant's
motion to dismiss because of the doctrine of equitable tolling. See Pl.'s
Mem. of P. & A. in Opp'n to Def.'s Mot. to Dis. ("Pl.'s Opp'n.") at 1.
Specifically, the plaintiff argues that the court should not bar her claim
because: (1) she could not file a timely appeal because she was tending
to her dying grandmother; and (2) she thought she had 45 days to file,
not 15.*fn3 See Compl. at 3; Pl.'s Mf. in Supp. of Opp'n of Def.'s Mot.
to Dis. ("Pl.'s Aff.") at 2. For the reasons discussed below, the court
holds that the plaintiff has not met her burden of establishing that the
doctrine of equitable tolling should apply. Thus, she has failed to
exhaust her administrative remedies. Accordingly, the court lacks
subject-matter jurisdiction and will dismiss the case.
2. Equitable Tolling
a. Legal Standard
The requirement for filing a timely administrative complaint is "not a
jurisdictional prerequisite to suit in federal court, but a requirement
that, like a statute of limitations, is subject to waiver, estoppel, and
equitable tolling."*fn4 Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
392, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); see also Bowden, 106 F.3d at
437. The court's power to toll the statute of limitations,
however, "will be exercised only in extraordinary and carefully
circumscribed instances." Mondy v. Secretary of the Army, 845 F.2d 1051,
1057 (D.C.Cir. 1988). Thus, the plaintiff will not be afforded extra time
to file without exercising due diligence, and the plaintiff's excuse must
be more than a "garden variety claim of excusable neglect." Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112
L.Ed.2d 435 (1990).
b. Application of Legal Standard
Unfortunately for the plaintiff, this case does not even rise to the
level of excusable neglect. Quite simply, there was no good reason for
the plaintiff to have missed the 15-day filing deadline.
The plaintiff contends that because of her grandmother's illness and
her own mistaken understanding that she had 45 days to file instead of
15, she was unable to timely file her formal administrative complaint
with Treasury's Regional Complaints Center. See Compl. at 3; see also
Mot. to Dis., Ex. 7. In support of her position, the plaintiff relies on
several cases in which courts in this circuit have applied the doctrine
of equitable tolling. These cases, however, have marked factual
differences from the case at bar.
For example, the plaintiff cites extensively to Jarrell v. United
States Postal Service, 753 F.2d 1088 (D.C.Cir. 1985). Although the court
tolled the deadline for an administrative complaint in Jarrell, the
plaintiff there was proceeding pro se. Moreover, the Jarrell plaintiff
alleged that he did not contact an EEO counselor in a timely manner since
he had relied on the assurances of a different EEO officer that the
officer would attempt to have certain information expunged from the
plaintiff's employment records. "The failure to contact an EEO Counselor
within thirty days of the alleged discriminatory event may be excused if
it is the result of justifiable reliance on the advice of another
government officer." Id. at 1092.
In addition, the plaintiff inappropriately relies on Brooks v.
Derwinski, 741 F. Supp. 963 (D.D.C. 1990). In that case, the plaintiff
was proceeding pro se and in forma pauperis, and filed only one day after
the 30-day deadline.*fn5 Id. Finally, Ms. Battle cites to Bethel v.
Jefferson for the proposition that Congress, in enacting the 1972
amendments to Title VII, "expressed its displeasure with strict adherence
to exhaustion requirements when the employee is forced to act with `no
certainty of the steps required to exhaust such remedies.'" 589 F.2d 631,
641-42 (D.C.Cir. 1978) (emphasis added).
In stark contrast, the plaintiff at bar was not proceeding pro se, but
was represented from the beginning of the administrative process by
counsel, Mr. Carter. On January 24, 1998, Mr. Carter sent a letter to the
plaintiff's supervisor, George Shue, to argue against the "Notice of
Proposed Removal." See Mot. to Dis., Ex. 5. Mr. Carter also attended the
February 13 meeting with Mr. Shue in a further effort to dissuade him
from recommending the plaintiff's removal from her position. See Compl.
at 3. As noted supra in footnote 1, the plaintiff also had a second
representative, Dennis Phelps, at the February 13, 1998 meeting. See
Mot. to Dis., Ex. 2. Moreover, the plaintiff's formal administrative
complaint listed Mr. Carter as her representative, and, in fact, he
signed the administrative complaint and presumably helped prepare it.
See Mot. to Dis., Ex. 6.
It follows, then, that because the plaintiff had legal representation
from the start of this administrative proceeding, the fact that the
plaintiff, her sister and her mother had to tend to the plaintiff's sick
grandmother during this period should have little or no bearing on her
lateness. See Pl.'s
Aff. at 1. At a minimum, the plaintiff's counsel should have known about
the appropriate time requirements for this administrative action,
particularly since he began representing the plaintiff months before late
March, when she received the "Right to File" notice.
Moreover, the plaintiff's claim that she thought she had 45 days to
file her formal complaint rings hollow. On at least three separate
occasions, the plaintiff was informed of the 15-day time period. First,
during her March 16, 1998 meeting with EEO Specialist Arthur Hicks, the
plaintiff initialed every paragraph on the "EEO Counselor Checklist",
including paragraph #9, which talks about the 15-day requirement, to
indicate that she had discussed that paragraph with Mr. Hicks. See Mot.
to Dis., Ex. 3. Second, on March 28, the plaintiff received the "Notice
of Right to File a Discrimination Complaint Under 29 C.F.R. Part 1614"
from Mr. Hicks. This Notice included the 15-day requirement, which was
printed in bold and in all-capital letters. See Mot. to Dis., Ex. 4.
Third, about one week before the 15-day limit had elapsed, Mr. Hicks
called the plaintiff to remind her of the deadline, and she said that she
would "take care of it." See Mot. to Dis., Ex. 5. Thus, the record is
clear that unlike in Bethel, the plaintiff and her attorney knew or
should have known about the 15-day time limit.
In sum, the plaintiff's justifications for missing the administrative
deadline do not rise to the level required by this circuit for
application of the equitable tolling doctrine. See, e.g., Mondy, 845 F.2d
at 1057; Hosey v. Slater, 1999 WL 1215953, *1 (D.C.Cir. 1999); Wilkins
v. Daley, 49 F. Supp.2d 1, 2 (D.D.C. 1999). The plaintiff, who was
represented by counsel for the duration of the administrative
proceeding, has failed to show that she acted with sufficient dingence to
seek refuge in an equitable toll. See Wilkins, 49 F. Supp.2d at 2.
Furthermore, the plaintiff has demonstrated no affirmative misconduct or
imparting of misinformation on the government's part that would justify a
toll in this situation. See Washington v. Washington Metropolitan Area
Transit Authority, 160 F.3d 750, 753 (D.C.Cir. 1998).
For all of these reasons, the court will not equitably toll the
administrative deadline. Accordingly, the plaintiff has failed to exhaust
her administrative remedies, and the court lacks subject-matter
jurisdiction over this case. Therefore, the court will grant the
defendant's motion to dismiss. An Order directing the parties in a
fashion consistent with this Memorandum Opinion is separately and
contemporaneously issued this ___ day of September 2000.
GRANTING THE DEFENDANT'S MOTION TO DISMISS
For the reasons stated in the court's Memorandum Opinion issued
separately and contemporaneously this ___ day of September, 2000, it is
ORDERED that the defendant's motion to dismiss shall be and hereby is