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April 25, 2003

Randolph S. KOCH, Plaintiff,
William H. DONALDSON, in his capacity as Chairman, U.S. Securities and Exchange Commission,[fn1] Defendant.

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

*fn1 President George W. Bush appointed William H. Donaldson Chairman of the United States Securities and Exchange Commission on February 18, 2003. He is hereby substituted as the named defendant, as this action is brought against the Chairman in his official capacity. See Fed.R.Civ.P. 25(d).

[260 F. Supp.2d 87]



  Defendant in this action has filed a motion to dismiss or, in the alternative, for summary judgment, contending that the case should be dismissed because plaintiff has failed to exhaust his administrative remedies at two different junctures in the complaint process.*fn2 Plaintiff counters that his failure to file a timely EEO complaint should be excused under the doctrine of equitable tolling and that the SEC's failure to inform him of his right to appeal excuses his failure to file a timely appeal. Plaintiff has filed a Rule 56(f) motion for a continuance to complete discovery on issues relating to the filing of his administrative complaint. Upon consideration of the arguments of the parties, the Court grants defendant's motion for summary judgment, and denies plaintiff's motion for a continuance in order to conduct discovery.


  Plaintiff Randolph S. Koch, originally filed his complaint pro se, subsequently retained counsel, but now is proceeding again pro se. Mr. Koch is employed by the United States Securities and Exchange Commission in the Office of Disclosure and Review in the SEC's Division of Investment Management in Washington, D.C. See Complaint ¶¶ 4, 8. Defendant asserts that although Mr. Koch is an attorney, he has worked as a financial analyst and not as an attorney for the last ten years. See Memorandum of Points and Authorities in Support of Motion to Dismiss or, in the Alternative, Motion for Summary Judgment ("Def.'s Mot") at 1 n. 1. In May 1998, Mr. Koch sought EEO counseling, claiming that the SEC discriminated against him based on age, sex, race and disability. See Def.'s Mot., Ex. 9, EEO Counselor's Report at 1-2. He also contends that the SEC retaliated against him for engaging in protected activity when he received a lower than deserved annual performance evaluation, when he was harassed and taunted by his supervisor, when his workload increased, and when the SEC ignored his

[260 F. Supp.2d 89]

      request for accommodation. See Complaint ¶¶ 8-13. Plaintiff filed this action on August 31, 2000. After the Court issued on order to show cause why the complaint should not be dismissed for failure to serve the SEC, plaintiff served defendant on February 13, 2001.

  It is undisputed that on October 2, 1998, plaintiff received a Notice of Final Interview from his EEO counselor. See Def.'s Mot., Ex. 3, October 2, 1998, Notice of Final Interview and Right to File EEO Complaint ("Notice of Final Interview"). On October 20, 1998 plaintiff faxed and mailed an administrative complaint to the SEC's EEO Office. See Def.'s Mot, Ex. 4, October 20, 1998, Fax from Randolph S. Koch to Deborah Balducchi, Director of Office of Equal Employment Opportunity, SEC with Attached Amendment to Complaint of Discrimination ("Administrative Complaint"). On October 26, 1998, the SEC's EEO Office issued its final agency decision dismissing plaintiff's complaint as untimely on the ground that the 15-day period for filing a formal complaint had expired prior to Mr. Koch's October 20, 1998 fax. See Def.'s Mot, Ex. 10, October 26, 1998, Letter from Deborah K. Balducchi to Randolph S. Koch ("Final Agency Decision").

  On December 1, 1998, plaintiff filed an administrative Notice of Appeal. See Def.'s Mot., Ex. 5, November 30, 1998, Letter from Randolph S. Koch to the Office of Federal Operations, EEOC ("Notice of Appeal"). On October 28, 1999, the EEOC dismissed Mr. Koch's appeal because it was not timely filed. See Def.'s Mot., Ex. 7, October 28, 1999, Dismissal of Appeal. The EEOC explained that the failure of the SEC to attach a notice of appeal right to the Final Agency Decision did not excuse plaintiff's failure to exhaust because plaintiff had constructive notice of his right to an appeal. See id. at 1. The agency also concluded that plaintiff did not present evidence sufficient to warrant equitable tolling. See id. at 1-2.


  A. Failure to File Timely Administrative Complaint

  Prior to instituting suit under Title VII, an employee alleging discrimination in federal employment must proceed before the agency charged with discrimination. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614, et seq. The first step in the process is for the federal employee to contact an Equal Employment Opportunity Counselor at his or her employing agency within 45 calendar days after the date of the alleged discriminatory event. See 29 C.F.R. § 1614.105(a)(1). The EEO Counselor has a short period of time within which to informally resolve the matter or, if the matter is not resolved, to conduct a final interview with the employee. See 29 ...

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