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BATTLE v. RUBIN

September 11, 2000

TERREE BATTLE, PLAINTIFF,
V.
ROBERT E. RUBIN, SECRETARY, U.S. DEPARTMENT OF THE TREASURY, DEFENDANT.



The opinion of the court was delivered by: Urbina, District Judge.

MEMORANDUM OPINION

GRANTING THE DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

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.

II. BACKGROUND

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, 1999.

III. ANALYSIS

A. Legal ...


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