The opinion of the court was delivered by: Richard W. Roberts United States District Judge
In this action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., plaintiff alleges that he was fired from the United States Department of State in 1991 because of his disability. Defendant moves for dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or for summary judgment pursuant to Rule 56.*fn1 She argues in part that plaintiff failed to properly exhaust his administrative remedies for his claim under the Rehabilitation Act. Because it is undisputed that plaintiff failed timely to pursue and exhaust an administrative complaint, and no equitable relief from that failure is warranted, defendant's summary judgment motion will be granted.
Plaintiff was hired by the State Department in August 1986 as an Elevator Mechanic (Adjustor) at a GS-11, step 5 level, earning a $13.68 per hour. Def.'s Mot., Declaration of James A. Forbes ("Forbes Decl.") ¶ 3 & Ex. 1. In October 1986, plaintiff "re-injured" his back and was placed on leave without pay from October 17, 1986 through August 26, 1991, during which time he received worker's compensation. Id. On August 9, 1991, plaintiff was offered a position as a Motor Vehicle Operator at a WG-6, step 5 level, earning $11.85 per hour. Id. ¶ 4 & Ex.2; Compl. Ex. 12. Plaintiff accepted the offer and returned to work on August 27, 1991. Compl. Ex. 12. But two weeks later, on September 16, 1991, plaintiff informed his supervisor that he could no longer work because of back pain and provided supporting medical documentation. Forbes Decl. ¶ 5. Plaintiff asked to be placed again on leave without pay from September 16, 1991 to October 28, 1991, when his physician would reevaluate his fitness for duty. Id. See Compl. Ex. 14.
By memorandum dated October 24, 1991, the State Department's Bureau of Administration asked that plaintiff be removed from employment because "it [was] apparent that [plaintiff's] availability for regular and reliable attendance at work [was] unlikely" due to his back pain. Compl. Ex. 14. By letter of November 18, 1991, the State Department informed plaintiff of the proposed removal based on his "physical inability to perform the duties of [his] positions." Compl. Ex. 15. Plaintiff was provided the materials relied upon in reaching the decision and informed of his right to respond to the proposed action within ten calendar days from his receipt of the notice. Id. Having received no response from plaintiff, the State Department informed plaintiff by letter of December 2, 1991 that his employment would end as of December 31, 1991. The letter further informed plaintiff of his ability to apply for disability benefits under the Civil Service Retirement System within one year of separation from the State Department and his right to appeal his removal to the Merit Systems Protection Board ("MSPB") within 20 calendar days after December 31, 1991. Compl. Ex. 17.
Plaintiff alleges that he contacted the MSPB on January 21, 1992, but was told that his "deadline to file with the MSPB had passed by one day." Compl. at 12. Plaintiff applied for disability retirement, see Compl. Ex. 21, and elected to receive disability retirement benefits, "in lieu of compensation benefits," as of May 1, 1995. Compl. Ex. 20.
Over a decade later, on October 10, 2006, plaintiff contacted the State Department's Office of Civil Rights ("OCR") claiming that his termination in 1991 was based on his disability identified as a herniated disk and sciatic nerve damage. Def.'s Mot., Declaration of Jacqueline Canton, Attach. 1. Plaintiff filed a formal complaint of disability discrimination on November 7, 2006. Id., Attach. 2. On December 1, 2006, the OCR dismissed the complaint as untimely because plaintiff had not contacted an EEO Counselor within 45 calendar days of his effective date of termination. Id., Attach. 3. Plaintiff appealed the decision to the Equal Employment Opportunity Commission ("EEOC"), id., Attach. 4, which affirmed the State Department's decision on April 20, 2007. Id. ¶ 7. Plaintiff timely filed this civil action on June 19, 2007.
Defendant asserts that plaintiff failed to exhaust his administrative remedies by initiating a timely discrimination complaint at the administrative level.*fn2 Specifically, defendant argues that plaintiff had 45 days from the effective date of his termination to consult an EEO counselor. The regulation upon which defendant relies, 29 C.F.R. § 1614.105 (1992), was not in effect at the time of plaintiff's termination. The applicable regulation required plaintiff to seek EEO counseling within 30 days of his termination. 29 C.F.R. § 1613.214 (1991). And, as is the case now, the exhaustion of administrative remedies was required in 1991 prior to obtaining judicial review. See Thorne v. Cavazos, 744 F. Supp. 348, 350 (D.D.C. 1990) ("[T]he 1978 amendments to the Rehabilitation Act incorporated § 717 of Title VII, which makes exhaustion a prerequisite to filing a judicial complaint alleging a Title VII violation in the federal workplace.") (citing 29 U.S.C. § 794a (a)(1)).
Plaintiff concedes the untimeliness of his administrative action but asserts (1) that he was provided "misinformation" when he contacted the "Office of Personnel", and (2) that he was "never informed of [his] right to go to the EEO and file a complaint until [he] saw a report on the television [in October 2006] that related almost exactly like my case." Complainant's Motion in Opposition to Dismiss or, in the Alternative, for Summary Judgment, and to Request a Motion for Discovery on the Defendant ("Pl.'s Opp.") [Dkt. No. 14] at 10. Consideration therefore is given to whether plaintiff should benefit from equitable tolling and equitable estoppel.
The limitations period for filing an administrative charge of discrimination is subject to equitable tolling in the unusual instance where justice requires that the plaintiff be spared the consequences of failing to meet the deadline imposed. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Chung v. Dep't of Justice, 333 F.3d 273, 275-76 (D.C. Cir. 2003). "Equitable tolling, . . . which ask[s] whether equity requires extending a limitations period, [is] for the judge to apply, using her discretion, regardless of the presence of a factual dispute." Smith-Haynie v. District of Columbia 155 F.3d 575, 579 (D.C. Cir. 1998). Equitable tolling "merely ensures that the plaintiff is not, by dint of circumstances beyond his control, deprived of a 'reasonable time' in which to file suit." Chung, 333 F.3d at 279 (quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452 (7th Cir. 1990)). "The claimant bears the burden of justifying equitable tolling." Hood v. Sears, Roebuck & Co., 168 F.3d 231, 232 (5th Cir. 1999); see also Saltz v. Lehman, 672 F.2d 207, 209 (D.C. Cir. 1982) (affirming district court's dismissal of complaint because plaintiff did not make a showing to support equitable tolling). Ordinarily, a party must demonstrate extraordinary circumstances to invoke a court's power to toll the statute of limitations. Commc'ns Vending Corp. of Ariz. v. Fed. Commc'ns Comm'n, 365 F.3d 1064, 1075 (D.C. Cir. 2004); Stong-Fischer v. Peters, Civil Action No. 07-265 (RWR), 2008 WL 2138161, at *4 (D.D.C. May 22, 2008).
Equitable tolling is appropriate "when the plaintiff 'despite all due diligence . . . is unable to obtain vital information bearing on the existence of his claim.'" Chung, 333 F.3d at 278 (quoting Currier v. Radio Free Europe, 159 F.3d 1363, 1367 (D.C. Cir. 1998)). "[E]quitable tolling is unwarranted where a litigant has failed to exercise due diligence in preserving his legal rights." Commc'ns Vending Corp. of Ariz., 365 F.3d at 1075 (internal quotation marks and citations omitted).
"To avoid summary judgment, [plaintiff] must show the existence of evidence sufficient to permit a reasonable conclusion that the statute of limitations should have been equitably tolled." Smith-Haynie, 155 F.3d at 579. Plaintiff claims that he "now realize[s]" that when he inquired in 1991 about "help in putting me into a job that I was trained for," he was referred to a woman, Ms. Blacker, in the Retirement Division rather than to an EEO officer. Pl.'s Opp. at 9-10. Plaintiff states that Ms. Blacker told him to "go to my Congressmen and to file a grievance of Discrimination," id. at 10, and that "Congressm[a]n Moran on August 23, 1991 [said] that they were going to look into the matter for me." Id. Plaintiff claims further that Congressman Moran's office responded again on October 3, 1991, "stating that his office had contacted the State Department concerning my ...