clerk's office). Mr. Koch's mailing of the complaint on October 20, 1998 fell within this tolled period, and thus his claims should not be dismissed on the basis of untimely filing of his administrative complaint. See 29 C.F.R. § 1614.604(b) ("a document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period"). Although plaintiff waited until the last hours of the 15-day period as extended by the weekend, his numerous attempts to fax the complaint within the time period and his subsequent mailing and faxing of the complaint the next day are sufficient to demonstrate his diligence.
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 file his complaint within the 15-day period, the mechanical failure of the SEC EEO Office's fax machine, and he has demonstrated his diligence in mailing the complaint at the next opportunity he had.
The circumstances presented by this case are more analogous to those in Janczewski v. Secretary, Smithsonian Institution, 767 F. Supp. 1 (D.D.C.1991), than to those in Wilkins v. Daley. In Janczewski, the court applied equitable principles to toll the filing period where plaintiff filed a complaint in court one minute after the close of the period as a result of the temporary absence of a security guard at the entry to the courthouse. See Janczewski v. Secretary, Smithsonian Institution, 767 F. Supp. at 5-6. Like the plaintiff in Janczewski, Mr. Koch was unable to file his administrative complaint within the statutory time period because of the presence of technical filing problems beyond his control. See also Baker v. Henderson, 150 F. Supp.2d at 22 (time period tolled where clerk of court's failure to notify plaintiff of status of in forma pauperis application caused plaintiff's delay in filing complaint). The Court thus concludes that Mr. Koch has carried his burden of pleading and proving facts "supporting equitable avoidance of the defense" of failure to exhaust in filing his administrative complaint one day late. See Bowden v. United States, 106 F.3d at 437.*fn4 In light of this conclusion, there is no reason to grant Mr. Koch's request for a continuance in order to permit him to conduct discovery under Rule 56(f) of the Federal Rules of Civil Procedure concerning the events surrounding the filing of his administrative complaint.
B. Failure to File Timely Notice
of Appeal to EEOC
Defendant also argues that plaintiff's failure to file a notice of appeal of the final agency decision with the EEOC within the prescribed 30-day filing period constitutes an alternative ground on which to dismiss plaintiff's claims for failure to exhaust administrative remedies. Section 1614.402 of the Code of Federal Regulations requires that appeals of final agency decisions must be appealed to the EEOC "within 30 days of receipt of dismissal, final action or decision." 29 C.F.R. § 1614.402(a). Mr. Koch does not dispute that he failed to file a timely notice of appeal after the SEC's EEO Office dismissed his administrative complaint. See Pl.'s Opp. at 8 n. 8.*fn5 Plaintiff contends instead that because he was not given proper notice under 29 C.F.R. § 1614.110(b) of his right to appeal the dismissal of his EEO complaint, his failure to file a timely administrative appeal must be excused. See Pl.'s Opp. at 12-13.*fn6
The Court rejects plaintiff's argument and concludes that plaintiff failed to exhaust when he did not file a timely appeal.*fn7 Although the EEO Office did not provide a notice of Mr. Koch's appeal rights to him with the Final Agency Decision, the Court concludes that Mr. Koch had constructive notice of the 30-day time period. According to EEOC records, plaintiff had already filed eleven prior appeals and five requests for reconsideration at the time he failed to file a timely appeal in this case, which tends to show that he was well aware of the 30-day filing requirement. See Def.'s Mot., Ex. 7, Dismissal of Appeal at 1-2. Indeed, Mr. Koch admitted that he possessed and submitted the proper appeal form with his appeal. See Def.'s Mot., Ex. 5, Appeal of Amended Complaint at 1. Furthermore, in a memorandum received by Mr. Koch from his EEO counselor on July 20, 1998, he was notified, inter alia, that should he choose to appeal the final agency decision to the EEOC, he must file the appeal on an EEOC Form 573, which was available at the SEC EEO Office, and that he "must file an appeal to the EEOC within 30 days of [. . .] receipt of the final agency decision or the agency's dismissal of [the] complaint." Def.'s Mot., Ex. 2, Memorandum from Lisa Rosenthal, EEO Counselor, to Randolph Koch ("EEO Memorandum") at 9-10.
On the record before the Court, it is clear that Mr. Koch had notice of the 30-day deadline for filing an appeal. The fact that the EEO Office did not include a notice of appeal rights with the final agency decision does not excuse plaintiff's failure to file a timely appeal. See, e.g. Bowden v. United States, 106 F.3d at 438 (agency's failure to give notice of 30-day time period in which to file complaint in federal court "does not excuse the untimeliness of a complaint, unless the absence of notice misled the complainant about the time limit's operation"). The Court therefore concludes that plaintiff's failure to file a timely notice of appeal of the SEC's administrative decision constituted a failure to exhaust his administrative remedies, and it therefore grants defendant's motion for summary judgment.*fn8
A separate order and judgment consistent with this memorandum opinion will issue this same day.
FINAL ORDER AND JUDGMENT
Upon consideration of the arguments of the parties and the entire record herein, and for the reasons stated in the Memorandum Opinion issued this same day, it is hereby
ORDERED that Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment [9-1, 9-2] is GRANTED; it is
FURTHER ORDERED that plaintiff's motion for additional discovery under Rule 56(f) of the Federal Rules of Civil Procedure [20-1] is DENIED; it is
FURTHER ORDERED that JUDGMENT is entered for defendant; it is
FURTHER ORDERED that this case is DISMISSED from the docket of this Court; and it is
FURTHER ORDERED that this Order and Judgment shall constitute a FINAL JUDGMENT in this case. This is a final appealable order. See FED. R. APP. P. 4(a).
*fn2 Because the Court will consider materials outside the pleadings to resolve the motion, defendant's motion will be treated as a motion for summary judgment. See Fed.R. Civ. P. 12(b).
*fn3 The actual 15 day-period concluded on October 17, 1998, a Saturday. As a result, the time period was extended to the next business day, Monday, October 19, 1998, under the relevant regulations. See 29 C.F.R. § 1614.604(d).
*fn4 The Court rejects plaintiff's claim that his sleep apnea made it difficult for him to file within specified time periods and that his failure to file a timely complaint should be excused for that reason. See Pl.'s Opp. at 4-5, 13-17. The undisputed evidence shows that Mr. Koch was able to attend work during the time period relevant to this motion, and it is unreasonable to infer that a person well enough to work full-time cannot fill out and file the simple forms necessary to preserve his EEO claims. Furthermore, although plaintiff contends that he has sleep apnea causing excessive day-time sleepiness, he has admitted that "he cannot prove his incapacity, or even an inability to work." Dismissal of Appeal at 2. Mr. Koch's contention that he suffers from sleep apnea does not excuse his failure to exhaust his administrative remedies.
*fn5 There is some discrepancy in the parties' positions with regard to the actual filing date of the notice of appeal. Plaintiff asserts that he filed the administrative appeal on November 30, 1998, while defendant asserts that Mr. Koch did not file the appeal until December 1, 1998. This discrepancy does not affect the Court's analysis, however, because even if Mr. Koch filed the appeal on November 30 as he asserts, the appeal was untimely. Mr. Koch received the Final Agency Decision on October 28, 1998. The 30-day time period thus ran on Friday, November 27, 1998.
*fn6 Section 1614.110(b) states that "[t]he final action shall contain notice of the right to appeal the final action to the Equal Employment Opportunity Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits. A copy of EEOC Form 573 shall be attached to the final action." 29 C.F.R. § 1614.110(b).
*fn7 The Court also rejects Mr. Koch's claim that his sleep apnea should excuse his failure to file a timely notice of appeal. See note 4, supra.
*fn8 The Court denies plaintiff's Rule 56(f) motion for a continuance to conduct discovery concerning the circumstances surrounding the filing of the administrative appeal, because under either date asserted by the parties as the filing date, the Court's analysis remains the same.