The opinion of the court was delivered by: Urbina, District Judge.
GRANTING THE DEFENDANT'S MOTION TO DISMISS
This matter is before the court on the defendant's motion to dismiss
for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil
The plaintiff Ms. Terree Battle (the "plaintiff" or "Ms. Battle"),
brought this suit for declaratory and injunctive and damages under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq. The plaintiff claims that her employer, the U.S. Department of the
Treasury, discriminated against her on the basis of her race.
Specifically, the plaintiff alleges that her employer removed her from her
position at the Bureau of Engraving and Printing, a subdivision of the
Department of the Treasury, for improper conduct, whereas white employees
who had engaged in the same misconduct had not been fired. See Compl. at
1. The defendant, Robert Rubin, is the former Secretary of the Treasury
(the "defendant" or "Secretary"), who is being sued in his official
The defendant moves to dismiss this action under Rule 12(b)(1) on the
ground that the court lacks subject-matter jurisdiction because the
plaintiff failed to exhaust her administrative remedies. See Mot. to Dis.
at 1. The plaintiff counters that the doctrine of equitable tolling
should allow her claim to proceed. See Pl's Opp'n to Mot. to Dis. ("Pl.'s
Opp'n") at 1. For the reasons that follow, the court holds that because
the plaintiff cannot rely on equitable tolling, she has failed to exhaust
her administrative remedies. Accordingly, the defendant's motion to
dismiss will be granted.
The plaintiff, an African-American woman, was employed by the Bureau of
Engraving and Printing (the "Bureau"), a division of the U.S. Department
of the Treasury. See Compl. at 2. She worked at the Bureau as a sheet
examiner/counter for six years before her March 2, 1998 removal. During
the entire period of her employment, the plaintiff had no disciplinary
actions taken against her except for the incident at issue. See id.; see
also Mot. to Dis. at 1. On September 24, 1997, relief the plaintiff
submitted false documentation to her supervisor to explain her absence
from work the previous day. See Mot. to Dis., Ex. 1. Ms. Battle concedes
that she gave her supervisor an "altered" document to explain her
absence. See Compl. at 3.
On January 6, 1998, after investigating this incident, the plaintiff's
foreman, Wayne W. Landry, notified her of his proposal to remove her from
her job because of her "improper conduct." Id.; see also Mot. to Dis.,
Ex. 1. Specifically, the Bureau charged Ms. Battle with violating Item 19
of the Bureau's Table of Offenses and Penalties, which provides that
employees committing misrepresentation, falsification or concealment of
material facts regarding their application, employment record, or
investigation may receive discipline ranging from an official reprimand
to removal. See Compl. at 3. The plaintiff's attorney responded to this
notification with a letter dated January 24, 1998. See Mot. to Dis., Ex.
5. On February 13, 1998, the plaintiff, who was represented by counsel,
met in person with George L. Shue, Chief of the Office of Facilities
Management.*fn1 See Mot. to Dis., Exs. 2, 6. In a letter dated February
26, 1998, Mr. Shue informed the plaintiff of his decision to fire her
effective March 2, 1998. See id.
After receiving this news, the plaintiff contacted a Bureau Equal
Employment Opportunity ("EEO") counselor on March 9, 1998. See Mot. to
Dis., Ex. 3. On March 16, 1998, Bureau EEO Specialist Arthur Hicks met
informally with the plaintiff. See Mot. to Dis. at 1. At this meeting,
Mr. Hicks reviewed the "EEO Counselor Checklist" with the plaintiff. See
id. The checklist informs people who contact EEO counselors of their
rights and responsibilities under Section 1614.105(b) of the EEOC
regulations. As part of the review
of the checklist, Mr. Hicks explained the various time limits that
applied, including paragraph #9, which states that a complainant has "the
right to file a formal complaint within 15 calendar days of receipt of
the notice . . . ." Id. As she did with every other paragraph, the
plaintiff initialed the blank line next to paragraph #9 to indicate she
had discussed the item with Mr. Hicks. Id.
On March 17, 1998, Mr. Hicks sent the plaintiff a notice of her "right
to file" a discrimination complaint under 29 C.F.R. § 1614.105 See
Mot. to Dis., Ex. 4. This notice informed the plaintiff of the
requirement that she file a formal complaint within 15 days of the date
of her receipt of the notification.*fn2 See id. at 2. She received the
notification on March 28, 1998. See id.; Compl. at 3. A week before the
deadline, Mr. Hicks telephoned the plaintiff to remind her of the 15-day
limit. See Mot. to Dis., Ex. 4. In response, the plaintiff indicated that
she would "take care of it." See id.
The plaintiff, however, did not file her formal complaint until April
16, 1998, three days after the 15-day deadline. See Compl. at 3. In her
EEO complaint, she listed attorney Karl Carter as her representative.
See Mot. to Dis., Ex. 6. The Director of the Regional Complaints Center
of the Department of the Treasury, Michael Morgan-Garde, responded to the
plaintiff's administrative complaint in a letter dated May 14, 1998. See
Mot. to Dis. at 2. In this letter, Mr. Morgan-Garde asked why the
plaintiff had filed her administrative complaint late. See id. In Mr.
Carter's May 19 response to this letter, he said the plaintiff had
mistakenly believed she had 45 days in which to file her formal
complaint. See id. In her complaint filed with this court, the plaintiff
listed as a second explanation for missing the deadline that her
grandmother was dying of cancer. See Compl. at 3.
On June 4, 1998, the Regional Complaints Center of the Department of
the Treasury dismissed the plaintiff's complaint as untimely. See Mot. to
Dis. at 3. On March 5, 1999, the Equal Employment Opportunity
Commission's Office of Federal Operations affirmed the decision. See
Compl. at 3. The plaintiff filed her complaint in this court on June 7,