                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
DONDI BATES FORTUNE                 )
                                    )
            Plaintiff,              )
                                    )
      v.                            )                 Civil Action No. 10-0856 (BAH)
                                    )
ERIC H. HOLDER, JR., et al.,        )
                                    )
            Defendants.             )
___________________________________ )


                                  MEMORANDUM OPINION

       This matter is before the Court on the Defendants’ motion to dismiss or, in the

alternative, for summary judgment. 1 For the reasons discussed below, the motion will be

granted.

                                       I. BACKGROUND

       The Plaintiff, a former employee of the Federal Bureau of Investigation (“FBI”), brings

this employment discrimination action under Title VII of the Civil Rights Act of 1964 (“Title

VII”), as amended, see 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, see 29 U.S.C. §

791 et seq. Compl. ¶¶ 1-2. 2 He alleges that the FBI discriminated against him based on his

physical disability, culminating in his termination on October 26, 2008. See generally id. ¶¶ 2-5.



1
        Where, as here, the Defendant’s motion to dismiss references attachments that are outside
the pleadings, the motion “must be treated as one for summary judgment under Rule 56.” FED.
R. CIV. P. 12(d). In light of the court’s ruling on the Defendant’s motion for summary judgment,
its motion to dismiss under FED. R. CIV. P. 12(b)(3) for improper venue will be denied.
2
        Although the Plaintiff appears to rely on Title VII as a basis for this court’s jurisdiction,
see Compl. ¶ 1, in this action he does not allege discrimination based on his race. Title VII is
relevant, however, because “[t]he remedies, procedures and rights set forth in [Title VII] . . .
shall be available to any complaint under [the Rehabilitation Act] to any employee . . . aggrieved

                                                  1
       According to the Plaintiff, he “developed disabilities directly related to being diagnosed

with obstructive sleep apnea, narcolepsy and lower extremity lymphedema,” which in turn led to

“additional ailments . . . diagnosed as congestive heart failure, hypertension, sciatica and

obsesity.” Id. ¶ 3. “These ailments and remedies directly contributed to the Plaintiff falling

asleep while on duty.” Id. Further, these ailments “led to a physical change in form and

appearance.” Id. ¶ 4. For example, the Plaintiff wore compression garments because of the

swelling of his lower extremities, and application of these garments “consumed several hours . . .

[leading] to the Plaintiff using unscheduled leave and appearing late for work.” Id. These

garments “also affected the type of clothing” the Plaintiff could wear, such that he wore “only

casual attire” notwithstanding the dress code of the “professional atmosphere” in which he

worked. Id. Frequent medical appointments caused him to deplete annual and sick leave. Id.

       The FBI allegedly began to discriminate against the Plaintiff in June 2004 “in the form of

leave reprimands, withholding productive assignments, withholding incentive awards, denial of

training, [and] suspension of clearance.” Compl. ¶ 2. The Plaintiff “was eventually placed on

administrative review” because he “was insubordinate and failed to perform prescribed duties.”

Id. ¶ 5. His career with the FBI ended upon his termination on October 26, 2008. Id. ¶ 2.

       On November 2, 2009, the Plaintiff contacted an EEO Counselor. Mem. of P. & A. in

Supp. of Mot. to Dismiss, or in the Alternative, for Summ. J. (“Def.’s Mem.”), Ex. 4 at 10. 3 He

sought counseling because of discrimination “based on physical disabilities (Sleep Apnea – Day

time Somnolence and Primary Lymphodema [sic] and his race (Black) when he was issued a


by the final disposition of such complaint.” 29 U.S.C. § 794a(a)(1); see 29 C.F.R. §
1614.103(a).
3
        The Defendant’s Exhibit 4 is the Complaint Correspondence File for the Plaintiff’s EEO
complaint, Agency # FBI-2010-00031. The documents therein are sequentially numbered, and
the Court adopts the page numbers as the Defendant designates them.


                                                  2
letter of dismissal from the rolls of the FBI Philadelphia Field Office” on October 26, 2008. Id.;

see id. at 13. He sought reinstatement, transfer to the FBI’s Washington Field Office, and

reinstatement of his security clearance. Id. at 12.

       Initially the Plaintiff “was not aware that he . . . had an . . . [EEO] Complaint.” Def.’s

Mem., Ex. 4 at 13. During a “phone conversation with a close friend at the Philadelphia

Division in September 2009,” the Plaintiff learned that “there were several other employees

affected by medical issues that led to them being tardy, fall[ing] asleep while on duty and [being]

excluded from collateral office duties.” Id. at 5. He further “learned that these employees were

allowed to ultimately retire while [he] was terminated.” Id. These were facts “discover[ed] . . .

subsequent to [his] being suspended,” and he felt that he “was unjustly treated because of not

only [his medical] conditions, but [also] because [he] was not related to someone in favor at the

office.” Id.

       The complaint was not resolved informally, and the “Notice of Right to File was issued

on November 16, 2009.” Def.’s Mem., Ex. 2 (Letter to plaintiff from Vontell D. Frost-Tucker,

Director, Equal Employment Opportunity Staff, Justice Management Division, U.S. Department

of Justice, dated February 22, 2010) at 1; see id., Ex. 4 at 16. On December 1, 2009, the Plaintiff

“filed a formal Equal Employment Opportunity (EEO) complaint of discrimination against the

[FBI].” Compl. ¶ 1. He alleged that the FBI discriminated against him on the basis of his

physical disability when, on October 26, 2008, [he was] dismissed from [his] employment with

the FBI’s Philadelphia Field Office.” Def.’s Mem., Ex. 4 at 3. The FBI acknowledged in

writing its receipt of the Plaintiff’s formal discrimination complaint. Id. at 18.

       On January 14, 2010, an EEO Specialist contacted the Plaintiff by e-mail “to request

clarification with regard to [his EEO] complaint.” Def.’s Mem., Ex. 4 at 24. Based on the date



                                                  3
of the Plaintiff’s termination, the EEO Specialist stated that he was “required to make contact

with an EEO Counselor on or before December 10, 2008,” or within 45 days of the effective date

of the personnel action, yet he “first initiated EEO contact on November 2, 2009, approximately

11 months after the . . . deadline . . . for doing so.” Id. She asked the Plaintiff to respond to two

questions:

                1.) Were you aware [of] the 45-day time limit requirement to
                contact an EEO Counselor if you felt that you [had] been
                discriminated against based on race, color, religion, sex, national
                origin, age or disability?
                2.) If yes, why did you not initiate contact with an EEO Counselor
                within the required time limit? Please provide an explanation.

Id. The Plaintiff responded via e-mail as follows:

                Yes I was aware that there is a 45-day time limit requirement to
                contact an EEO Counselor for filing discrimination cases.

                                                ***
               I did not initiate contact with an EEO counselor within the required
               time because I was not aware of the discriminating acts being
               committed. To clarify, when I was terminated on October 26,
               2008, I was not aware that I was not afforded the same
               considerations given to other employees with medical
               impairments. I learned on October 2, 2009 that several employees,
               with medical impairments that were affected in similar ways as I,
               were allowed to continue employment with the Philadelphia Field
               Office. Not only were they allowed to continue employment, they
               were afforded special considerations allowing shift changes and
               position reassignment. In learning of these instances, I also
               learned that the other employees were white women. I would like
               to ammend [sic] my complaint to also include race and sex along
               with disability.

Id., Ex. 4 at 21-22.

        The FBI issued its final determination on February 22, 2010. See Def.’s Mem., Ex. 2.

The agency explained that “the time limitation period is . . . triggered [when] a complainant

reasonably suspects discrimination; all the facts [supporting] a claim of discrimination need not



                                                  4
be apparent or obtained by the complainant prior to initiating contact” with an EEO counselor.

Id., Ex. 2 at 2. A complainant “should suspect discrimination at the time of occurrence” of an

event such as a termination. Id. at 3. The FBI concluded that the Plaintiff “should have had a

reasonable suspicion of discrimination at the time of the adverse action alleged,” and that his

failure to timely initiate contact with an EEO counselor rendered his discrimination complaint

untimely. Id. Accordingly, the FBI dismissed the Plaintiff’s complaint. Id. at 4.

       The Plaintiff filed this lawsuit on May 13, 2010. 4 He demands a declaratory judgment,

reinstatement, assignment to either the Washington or the Baltimore Field Office, restoration of

sick leave and annual leave, compensatory and punitive damages, and costs of this action.

Compl. ¶ 7.

                                        II. DISCUSSION

       The Defendant moves for summary judgment on the ground that the Plaintiff failed to

exhaust his administrative remedies prior to the filing of this lawsuit. Mot. to Dismiss, or in the

Alternative, for Summ. J. at 1.

       There are “detailed procedures for the administrative resolution of discrimination

complaints, including a series of time limits for seeking informal adjustment of complaints [and]

filing formal charges,” set forth in regulations promulgated by the EEOC, and “[c]omplainants

must timely exhaust these administrative remedies before bringing their claims to court.”

Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citations omitted). A complainant

pursuing a claim under either Title VII or the Rehabilitation Act abides by the same federal

regulations with respect to the processing of his discrimination claim by a federal agency. See


4
       Although the docket reflects the filing of the complaint on May 25, 2010, the Clerk of
Court received the complaint, accompanied by the Plaintiff’s application to proceed in forma
pauperis, on May 13, 2010, as reflected in the date stamp on the first page of each original
document.

                                                 5
29 C.F.R. §§1614.103(a), 1614.104(a); see also Heard v. U.S. Dep’t of State, No. 08-2123, 2010

WL 3700184, at *6 (D.D.C. Sept. 17, 2010) (applying requirements of 29 C.F.R. § 1615.105(a)

to claims under both Title VII and the Rehabilitation Act); Wilderson v. Snow, No. 04-0708,

2006 WL 571930, at *2 (D.D.C. Mar. 7, 2006) (“In addition to claims brought under Title VII,

the administrative procedures established by the EEOC apply to claims brought under the

Rehabilitation Act.”). 5

        A complainant’s first obligation is to “consult a Counselor prior to filing a complaint in

order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). To this end, he “must

initiate contact with a Counselor within 45 days of the date of the matter alleged to be

discriminatory or, in the case of a personnel action, within 45 days of the effective date of the

action.” 29 C.F.R. § 1614.105(a)(1). The regulation provides for an extension of this 45-day

time limit if:

                 the individual shows that he . . . was not notified of the time limits
                 and was not otherwise aware of them, that he . . . did not know and
                 reasonably should not have . . . known that the discriminatory
                 matter or personnel action occurred, that despite due diligence he .
                 . . was prevented by circumstances beyond his . . . control from

5
        Remedies for a violation of the Rehabilitation Act are available “to any employee . . .
aggrieved by the final disposition of [his discrimination] complaint” under Title VII. 29 U.S.C.
§ 794a(1). A complainant who brings a discrimination claim under the Rehabilitation Act must
exhaust his administrative remedies before filing a lawsuit, and his failure to do so operates as a
bar to a federal district court’s jurisdiction. Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)
(finding that “[t]he district court . . . should have dismissed [the Plaintiff’s] Rehabilitation Act
claim for lack of jurisdiction on the ground that he failed to exhaust his administrative remedy”
because “[s]uch jurisdictional exhaustion, as we have called it, may not be excused”) (quotation
marks and citations omitted). The Plaintiff brings this action after having received the FBI’s
final determination of his discrimination complaint, and therefore he has exhausted his
administrative remedies for purposes of establishing the Court’s subject matter jurisdiction. See
Perry v. U.S. Dep’t of State, 669 F. Supp. 2d 60, 64 (D.D.C. 2009) (“That the [agency] rejected
[plaintiff’s] administrative complaint as untimely because he failed to initiate contact with an
EEO counselor within 45 days as 29 C.F.R. §1614.105(a)(1) requires, does not mean that the
Court lacks jurisdiction because there was no administrative complaint and thus no final
disposition of one.”) (citations and internal quotation marks omitted).


                                                   6
                contacting the counselor within the time limits, or for other reasons
                considered sufficient by the agency.

29 C.F.R. § 1614.105(a)(2).

         “[T]he administrative time limits created by the EEOC erect no jurisdictional bars to

bringing suit. Rather, functioning like statutes of limitations, these time limits are subject to

equitable tolling, estoppel, and waiver.” Bowden, 106 F.3d at 437; see Jarrell v. U.S. Postal

Serv., 753 F.2d 1088, 1091 (D.C. Cir. 1985) (“[A] a timely administrative charge is a

prerequisite to initiation of a Title VII action in the District Court.”); Perry v. U.S. Dep’t of State,

669 F. Supp. 2d 60, 64 & n.4 (D.D.C. 2009). A complainant’s failure to exhaust administrative

remedies is an affirmative defense which the Defendant must plead and prove. See Brown v.

Marsh, 777 F.2d 8, 13 (D.C. Cir. 1985). If the Defendant meets his burden, the Plaintiff “then

bears the burden of pleading and proving facts supporting equitable avoidance of the defense.”

Bayer v. U.S. Dep’t of the Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992); see Bowden, 106 F.3d

at 437. The court will exercise its “equitable power to toll the statute of limitations . . . only in

extraordinary and carefully circumscribed instances,” Mondy v. Sec’y of the Army, 845 F.2d

1051, 1057 (D.C. Cir. 1988), and application of the doctrine of equitable tolling is solely within

the court’s discretion, see Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir.

1998).

         The Plaintiff’s discrimination complaint arises from his termination, and termination is

“[a] discrete . . . discriminatory act [which] occurred on the day that it happened,” Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (internal quotation marks omitted); see

Coppinger-Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (concluding that the statute of

limitations began to run when the complainant learned of her actual injury, i.e., the decision to

terminate her employment); Gordon v. Office of the Architect of the Capitol, No. 09-1262, 2010


                                                   7
WL 4568832, at *8 (D.D.C. Nov. 12, 2010) (concluding that the limitations period began to run

on the date the complainant was informed that she had not been selected for a position).

According to the Defendant, “the undisputed record reveals that [the Plaintiff] failed to contact

an EEO counselor within 45 days of his termination,” Def.’s Mem. at 8, and that he “fails to

present a scintilla of evidence that he falls within the limited exceptions to the 45-day limit,” id.

at 9.

        The Plaintiff responds by asserting that “mitigating circumstances” exist. Resp. to Def.’s

Mot. to Dismiss or in the Alternative, for Summ. J. at 1. He states:

               According to defense Exhibit (2) page (5), this document clearly
               outlines the mitigating circumstance that the plaintiff used as a
               guide for filing this procedure. In compliance with the rules stated
               in this exhibit, plaintiff understood that his administrative remedies
               have been exhausted fully under Title VII . . . and the
               Rehabilitation Act . . .. Plaintiff also understood that . . . he should
               name the Attorney General . . . as the defendant and failure to do
               so would result in dismissal of the filing. Plaintiff understood that
               naming the Attorney General as the defendant, the proper venue
               would be United States District Court, District of Columbia. In
               summary, plaintiff would like to motion for summary judgment
               based on the submissions of records used as evidence for the
               findings.

Id. at 1-2. The exhibit to which the Plaintiff refers is the FBI’s final determination of his

discrimination claim, specifically the notice of his right to bring a civil action “in an appropriate

United States District Court.” Def.’s Mem., Ex. 2 at 5. Among other information, the notice sets

forth the time limits within which a lawsuit must be filed and instructs that failure to name the

Attorney General as the defendant to a lawsuit may result in its dismissal. Id.

        The Plaintiff’s focus on the technical details of filing a lawsuit is misplaced. The

Defendant’s argument is not related to the timeliness of the filing of his complaint in this court or

to the naming of the proper defendant. Rather, the Defendant argues that the Plaintiff’s initial



                                                  8
contact with an EEO Counselor was untimely, and the Plaintiff’s opposition fails to address the

argument at all.

       Relevant to this discussion is the e-mail exchange initiated on January 14, 2010 by the

EEO Specialist. See Def.’s Mem., Ex. 4 at 21-22. The Plaintiff explains that he “did not initiate

contact with an EEO counselor within the required time because [he] was not aware of the

discriminating acts being committed.” Id. at 21. Specifically, the Plaintiff states that he “learned

on October 2, 2009 that several employees [who had] medical impairments [and] were affected

in similar ways as [he] were allowed to continue employment . . . [and] were afforded special

considerations.” Id. at 22. These employees were white women. Id. In other words, although

the Plaintiff knew of his termination on October 26, 2008, he claims not to have understood the

possible discriminatory motive for his termination until October 9, 2009. Following the

Plaintiff’s argument, his initial contact with an EEO Counselor, which occurred within 45 days

of October 9, 2009, was timely.

       “[N]otice or knowledge of discriminatory motivation is not a prerequisite for a cause of

action to accrue . . .. On the contrary, it is knowledge of the adverse employment decision itself

that triggers the running of the statute of limitations.” Hulsey v. Kmart, Inc., 43 F.3d 555, 558

(10th Cir. 1994). The Plaintiff’s claim accrued on the date of his termination. See McPhillips v.

Mineta, No. 07-cv-00077, 2008 WL 596133, at *5 (D. Colo. Feb. 29, 2008) (finding that a

discrimination claim accrued on the date plaintiff became aware of the adverse employment

action, not on the date she became aware of an alleged discriminatory motive); McCants v.

Glickman, 180 F. Supp. 2d 35, 42 (D.D.C. 2001) (finding that the discrimination claim of a

plaintiff who “suspected discrimination during [his] interview” accrued on the date of the

interview); cf. Salcedo v. Town of Dudley, 629 F. Supp. 2d 86, 98 (D. Mass. 2009) (“It is true



                                                 9
that plaintiff did not know whether any similarly-situated persons (other than her husband)

existed -- but at that point she was put on notice of the existence of a potential claim, and she had

three years in which to conduct an investigation.”). That the Plaintiff lacked information on

October 26, 2008 as to a potential discriminatory motive for his termination does not itself justify

a delay in initiating contact with an EEO Counselor. See Stepney v. Naperville Sch. Dist., 203,

392 F.3d 236, 240 (7th Cir. 2004) (rejecting appellant’s argument that he did not have sufficient

information to file an EEOC charge when the alleged violation occurred); Wastak v. Lehigh

Valley Health Network, 342 F.3d 281, 287 (3d Cir. 2003) (concluding that complainant’s “injury

was complete and discovered when [his former employer] terminated his employment,” not

months later when “he learned that he had been replaced by a younger employee”); Davidson v.

Am. Online, Inc., 337 F.3d 1179, 1186-87 (10th Cir. 2003) (rejecting argument that the alleged

employment discrimination “did not accrue until [the complainant] discovered AOL’s reason for

refusing to hire him -- the discriminatory hiring policy”).

       The Plaintiff neither alleges facts, articulates an argument, nor points to evidence in the

record to support the application of equitable tolling. See Greer v. Paulson, 505 F.3d 1306, 1316

(D.C. Cir. 2007) (granting summary judgment for the agency where the complainant neither

offered evidence that she met with an EEO counselor within 45 days of her termination nor

presented a basis for tolling the 45-day period). He does not, for example, argue that the

Defendant “engaged in affirmative misconduct, or misled [him] about the running of a

limitations period,” Washington v. Wash. Metro. Area Transit Auth, 160 F.3d 750, 752-53 (D.C.

Cir. 1998) (quotations and bracket omitted), claim to have had no notice of the 45-day limit, see

Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007), or otherwise describe “extraordinary




                                                 10
and carefully circumscribed circumstances,” Norman v. United States, 467 F.3d 773, 776 (D.C.

Cir. 2006), which might warrant this equitable remedy.

       Absent any basis to excuse his untimely contact with the EEO Counselor, the Plaintiff’s

failure to exhaust his administrative remedies prior to filing this lawsuit requires dismissal of his

complaint. See Rafi v. Sebelius, 377 Fed. Appx. 24, 25 (D.C. Cir. 2010) (per curiam) (affirming

dismissal of Title VII and ADEA claims as to positions for which the appellant applied because

he failed to contact an EEO counselor within the 45-day time period); Dorns v. Geithner, 692 F.

Supp. 2d 119, 130 (D.D.C. 2010) (concluding that the plaintiff failed to exhaust certain Title VII

claims because she contacted an EEO Counselor more than 16 months after the alleged

discriminatory actions occurred); Heard, 2010 WL 3700184, at *6 (dismissing disability

discrimination claim because of the plaintiff’s failure to consult an EEO Counselor within 45

days of the alleged discriminatory action).

                                       III. CONCLUSION

       The Court concludes that the Plaintiff failed to exhaust his administrative remedies, and,

therefore, grants the Defendant’s motion for summary judgment. An Order accompanies this

Memorandum Opinion.




                                               BERYL A. HOWELL
                                               United States District Judge
DATE: March 2, 2011




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