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).
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
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
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