The opinion of the court was delivered by: Paul Friedman, District Judge.
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 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 C.F.R. § 1614.105(d). The EEO Counselor also must inform the employee in writing of his or her right to file a discrimination complaint with the agency's EEO Office. See id.
An employee must file the EEO complaint within 15 days after receiving notice of his or her right to do so. See 29 C.F.R. § 1614.106(b). The failure to file a timely complaint within the 15-day period constitutes a failure to exhaust administrative remedies and is grounds for dismissal of the case by the agency, subject to equitable tolling. See Wilkins v. Daley, 49 F. Supp.2d 1, 2 (D.D.C.1999) (citing Saltz v. Lehman, 672 F.2d 207, 208-09 (D.C. Cir. 1982)); 29 C.F.R. § 1614.604(c) ("the time limits in this part are subject to waiver, estoppel and equitable tolling"). If the employee files a formal administrative complaint and is not satisfied with the agency's resolution of that complaint, he or she may either appeal to the Equal Employment Opportunity Commission or file a civil action in federal court. See Johnson v. Peterson, 996 F.2d 397, 399 (D.C. Cir. 1993). Again, there is a specified time period within which the employee must take these steps. See 29 C.F.R. § 1614.110.
The Court's power to equitably toll these filing periods may be exercised "only in extraordinary and carefully circumscribed instances." Mondy v. Sec'y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988); see also Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998). In order to gain the benefit of equitable tolling, the plaintiff "bears the burden of pleading and proving facts supporting equitable avoidance of the defense." Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Bayer v. United States Dep't of the Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992) and Jarrell v. United States Postal Service, 753 F.2d 1088, 1091-92 (D.C. Cir. 1985)). In addition, a plaintiff must establish that he or she "acted diligently to preserve [the] claim." Wilkins v. Daley, 49 F. Supp.2d at 2.
Mr. Koch does not dispute the fact that the 15-day period within which he was required to file his administrative complaint expired on October 19, 1998 and that he did not file the complaint until October 20, 1998.*fn3 Nor does plaintiff deny that he was aware of the 15-day filing requirement and that he knew that his administrative complaint was due on October 19, 1998. Instead, plaintiff asserts that the time period should be equitably tolled because he acted diligently in attempting to file his administrative complaint on October 19, 1998, but was unable to do so as a result of the malfunction of the fax machine at the SEC's EEO Office. See Plaintiff's Memorandum in Support of Plaintiff's Opposition to Motion to Dismiss or, in the Alternative, Plaintiff's Rule 56(f) Motion for Continuance to Complete Discover ("Pl.'s Opp.") at 6. Specifically, Mr. Koch avers that on the evening of October 19, 1998 beginning at 10:51 p.m., he attempted to fax his administrative complaint to the SEC's EEO Office from his home fax machine. See Plaintiff's Statement of Material Facts as to Which He Contends There Exists Genuine Issues to be Litigated ¶ 21. Mr. Koch received no response from the EEO Office's fax machine and tried an additional five times to fax his complaint without success, the last attempt occurring at 11:05 p.m. See id. The next day, October 20, 1998, plaintiff mailed the complaint and ultimately successfully faxed it at 11:47 p.m. to the EEO Office. See id. ¶ 22. The SEC's EEO Office treated the complaint as having been filed on October 21, 1998. See Def.'s Mot. at 2.
Defendant's reliance on Wilkins v. Daley in support of its argument is misplaced. See Def.'s Mot. at 9. In Wilkins, plaintiff filed her complaint five days after the close of the 15-day period. See Wilkins v. Daley, 49 F. Supp.2d at 1. The court first found that during the relevant time period the plaintiff worked every business day of the 15-day period, did not complain to her supervisor of any health-related problems, did not request sick leave and still failed to file her complaint in a timely manner. See id. at 2. The court then concluded that plaintiff had failed to provide any "legitimate reason why plaintiff did not file on time, or evidence that plaintiff acted diligently to preserve her claim." See id. By contrast, Mr. Koch has provided a legitimate reason for his failure to ...