           United States Court of Appeals
                      For the First Circuit

No. 13-1379

                          TRACY BARTLETT,

                       Plaintiff, Appellant,

                                v.

     DEPARTMENT OF THE TREASURY (INTERNAL REVENUE SERVICE),

                       Defendant, Appellee.




           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Nathaniel M. Gorton, U.S. District Judge]



                              Before

                   Howard, Ripple* and Thompson,
                          Circuit Judges.



     Thomas J. Gleason, with whom Gleason Law Offices, P.C., was on
brief for appellant.
     Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief for
appellee.


                           April 4, 2014




     *
         Of the Seventh Circuit, sitting by designation.
           RIPPLE, Circuit Judge.          Tracy Bartlett filed a one-count

complaint against her former employer, the Internal Revenue Service

(“IRS”), in which she alleged that she had been constructively

discharged in violation of the Rehabilitation Act, 29 U.S.C. § 701

et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq.       The IRS moved to dismiss the complaint on the

ground   that   Ms.   Bartlett   had       not   lodged   her   administrative

complaint within forty-five days of the incident, as dictated by

regulation.     Ms. Bartlett urged, however, that the doctrine of

equitable tolling applied because she was not apprised of the

regulatory deadline and because she was suffering from a mental

illness.      The parties briefed the motion and also submitted

additional documentation in support of their respective positions.

The district court granted the IRS’s motion to dismiss, and

Ms. Bartlett timely appealed.              Because Ms. Bartlett has not

demonstrated that her circumstances warrant equitable tolling, we

affirm the judgment of the district court.



                                       I

                                 BACKGROUND

           Ms. Bartlett was a long-time employee of the IRS who, in

2009, was absent periodically from work due to her diagnosis with,




                                    -2-
and   treatment    for,    severe   depression.1        On    April     22,   2010,

Ms. Bartlett was separated from her employment as a result of her

inability to return to the workplace.

            Following her separation from the IRS, Ms. Bartlett filed

a one-count complaint in district court, in which she alleged that

she had been constructively discharged on account of her disability

in violation of the Rehabilitation Act and the ADA.                       The IRS

responded    by   filing   a   motion    to   dismiss    on   the   ground    that

Ms. Bartlett had failed to contact an Equal Employment Opportunity

(“EEO”)     Counselor     within    forty-five    days       of   her   allegedly

discriminatory separation, as required by 29 C.F.R. § 1614.105(a)

(2013).2     In its motion, the IRS also noted that, although the


      1
        Because Ms. Bartlett’s action was decided on a motion to
dismiss, “we accept as true all well-pleaded facts alleged in the
complaint and draw all reasonable inferences therefrom in the
pleader’s favor.” Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st
Cir. 2011).
      2
          29 C.F.R. § 1614.105(a) (2013) provides:

                 (a) Aggrieved persons who believe they
            have been discriminated against on the basis
            of race, color, religion, sex, national
            origin,    age,   disability,    or   genetic
            information must consult a Counselor prior to
            filing a complaint in order to try to
            informally resolve the matter.

                       (1)   An   aggrieved   person   must
                  initiate contact with a Counselor within
                  45 days of the date of the matter alleged
                  to be discriminatory or, in the case of
                  personnel action, within 45 days of the
                  effective date of the action.


                                        -3-
forty-five-day time limit was subject to equitable tolling, in

order “‘[t]o qualify for [equitable tolling], a complainant must

allege and prove, at the least, not only that he had no reason to

be aware of his employer’s improper motivation when the putative

violation occurred, but also that the employer actively misled him

and that he relied on the (mis)conduct to his detriment.’”3     The

IRS claimed that, “[i]n light of Plaintiff’s letter dated April 9,

2010 -- before her separation -- in which she accused management of

creating a hostile work environment, Plaintiff cannot show that she

was unaware of the IRS’s alleged improper motivation.”4     The IRS

attached to its motion the April 9 letter from Ms. Bartlett, as

well as other documentation.




                     (2) The agency or the Commission
                shall extend the 45–day time limit in
                paragraph (a)(1) of this section when the
                individual shows that he or she was not
                notified of the time limits and was not
                otherwise aware of them, that he or she
                did not know and reasonably should not
                have   been    [sic]   known   that   the
                discriminatory matter or personnel action
                occurred, that despite due diligence he
                or she was prevented by circumstances
                beyond his or her control from contacting
                the counselor within the time limits, or
                for other reasons considered sufficient
                by the agency or the Commission.
     3
       R.9 at 3 (second alteration in original) (quoting Jensen v.
Frank, 912 F.2d 517, 521 (1st Cir. 1990)).
     4
         Id. at 3-4 (referencing R.9-1 at 4-5).

                                -4-
               Ms.   Bartlett    filed       an   opposition    to    the   motion    to

dismiss.       In it, she noted that, “[p]rior to her separation from

employment, [she] had sought to address the issue of what she

perceived as [the] failure of the defendant to grant employment

related benefits as it related to her medical condition.”5                           She

continued:        “On October 8, 2010[,] the plaintiff, through counsel,

sent       correspondence   to    the    EEOC       claiming   the    defendant      had

discriminated        against     her    on    the    basis     of    her    handicap.”6

Ms. Bartlett argued that a court may waive or extend “time limits

for equitable reasons when a person is prevented from timely filing

because of illness or in other appropriate circumstances.”7                          She

claimed that such circumstances were present in her case because:

(1) prior to her departure from the IRS, she had notified the IRS

“of the specifics of the dispute from her perspective”;8 (2) the

documents submitted in opposition to the motion, which set forth

her diagnosis with, and hospitalization for, severe depression,

“clearly established that [she] was significantly impaired by a

mental health issue during the relevant time period”;9 and (3) “she

was never notified of a 45 day time limit for commencing her


       5
            R.12 at 1.
       6
            Id. at 2.
       7
            Id.
       8
            Id. at 3.
       9
            Id. at 4.

                                         -5-
claim.”10     Attached     to   her   opposition   were   several   exhibits,

including an affidavit in which she stated that “[n]o one from the

defendant ever informed me that I only had forty-five (45) days to

file an employment discrimination claim,”11 and other documents

demonstrating that she had informed the IRS of the nature of her

complaint    and   that    she    had    been   undergoing   treatment   for

depression.12

            With the court’s permission, the IRS filed a reply brief

in support of its motion to dismiss.            It noted first that

            [a] mental disability may serve as the basis
            for equitable tolling only if the plaintiff
            was “‘[un]able to engage in rational thought
            and deliberate decision making sufficient to
            pursue [her] claim alone or through counsel.’”
            Meléndez-Arroyo v. Cutler-Hammer de P.R. Co.,
            273 F.3d 30, 37 (1st Cir. 2001) (alterations
            by the First Circuit) (quoting Nunnally v.
            MacCausland, 996 F.2d 1, 5 (1st Cir. 1993)).[13]

According to the IRS, the correspondence that Ms. Bartlett had

attached to her opposition clearly established that, at least as of

two weeks prior to her separation, “she was mentally competent; she

could read; she could write (indeed, quite eloquently); and she was


     10
            Id.
     11
            R.12-1 at 2.
     12
        In her opposition, Ms. Bartlett also argued that she had
“put the defendant on notice of the nature and substance of the
dispute” before the filing deadline had passed. R.12 at 3-4. She
does argue on appeal that these actions rendered her complaint
timely.
     13
          R.19 at 2 (second and third alterations in original).

                                        -6-
able to understand what had happened and the consequences of her

decision.”14      The IRS also addressed Ms. Bartlett’s claim that “she

was unaware of the 45-day deadline.”15 It stated: “The declaration

of   Damaris      Ouellette   attached   hereto   as    Exhibit   A,    however,

establishes that notices of the deadline were posted in Plaintiff’s

office since before 2010.        Therefore, Plaintiff had constructive,

if not actual, notice of the 45-day requirement.”16               Finally, the

IRS argued that, although it was aware, prior to her departure,

that    Ms.    Bartlett   believed   that   she   had   been   the     victim   of

discrimination, it had not been advised within the forty-five-day

window, as required by regulation, that she was going to pursue

legal remedies.

               In an order issued on February 4, 2013, the district

court granted the IRS’s motion to dismiss. The court observed that

Ms. Bartlett had “admit[ted] that she failed to contact an EEO

counselor within the mandated 45 days,” and, therefore, her claim

was barred unless equitable tolling applied.17                 The court then

evaluated the four grounds on which Ms. Bartlett had argued that

the limitations period applicable to her claim should be equitably

tolled.       First, the court noted that Ms. Bartlett had not alleged


       14
            Id.
       15
            Id. at 4.
       16
            Id.
       17
            R.25 at 3.

                                      -7-
facts “show[ing] that her mental illness was so severe that she was

unable to engage in the rational thought process and deliberate

decision making necessary to pursue legal remedies in a timely

fashion.”18     Additionally,   the    district   court   rejected   Ms.

Bartlett’s contention that the time should be tolled because the

IRS failed to inform her of the forty-five-day contact period. The

court observed that Ms. Bartlett had not pointed to affirmative

misconduct on behalf of the IRS, nor had she alleged that the IRS

failed to post the required EEO information--actions that might

have warranted equitable tolling. Finally, the court held that the

fact that the IRS was on notice of her potential claims did not

toll the statute of limitations:       “Counsel cites no authority to

suggest that the 45-day contact period is excused when defendant is

previously put on notice of the nature of an employee’s claim.”19

           Because Ms. Bartlett had not demonstrated that equitable

tolling of the administrative filing requirement was warranted, the

district court dismissed Ms. Bartlett’s complaint.        Ms. Bartlett

timely appealed.




     18
          Id. at 4.
     19
          Id. at 5.

                                 -8-
                                   II

                               DISCUSSION

A.   Requirement of Administrative Exhaustion

            Before we turn to the outcome-determinative question--

whether the district court properly dismissed Ms. Bartlett’s action

on the ground that the forty-five-day limitation set by regulation

for commencing administrative review of her claim was not tolled--

we must place that question in proper analytical and practical

context by addressing an antecedent issue: whether Ms. Bartlett was

required to exhaust administrative remedies prior to filing an

action     under   the   Rehabilitation   Act.20   This   question   is

“antecedent” to the tolling issue because the tolling of an

administrative filing requirement only becomes an issue if the

plaintiff must exhaust administrative remedies before proceeding




      20
         Ms. Bartlett alleged in her complaint that the IRS’s
actions violated the Rehabilitation Act and the ADA. See R.1 at 2
(“The acts and omissions of the defendant as described above[]
constitute discrimination on the basis of handicap, in violation of
29 U.S.C. Section 701, et seq. and 42 U.S.C. Section 12101, et
seq.”). However, the United States is explicitly excluded from the
ADA’s definition of “employer,” 42 U.S.C. § 12111(5)(B)(i), and,
consequently, as a federal employee, Ms. Bartlett only may proceed
under the Rehabilitation Act. See Field v. Napolitano, 663 F.3d
505, 510 n.6 (1st Cir. 2011).

                                   -9-
with a Rehabilitation Act claim.21            This fundamental issue remains

an open question in this circuit.

     Whether, or, more appropriately, under what circumstances, a

plaintiff must exhaust administrative remedies before filing an

action     under   the    Rehabilitation        Act    presents      a    statutory

interpretation question that is grounded in the manner in which

Congress    provided     for    a   private    cause    of    action      under   the

Rehabilitation Act.       The Rehabilitation Act was enacted in 1973,

and among its original provisions was a requirement that federal

agencies     adopt     affirmative      action        plans    for       handicapped

individuals. 29 U.S.C. § 791(b) (often referred to in the case law

as section 501 of the          Rehabilitation Act).22         Another provision,


     21
         Indeed, we have previously determined that, where the
requirement applies, “a plaintiff’s unexcused failure to exhaust
administrative remedies effectively bars the courthouse door.”
Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005).     One of
exhaustion’s “key components”--and the one with which we must
ultimately grapple--is “timely” compliance with procedural
requirements. See id.
     22
           29 U.S.C. § 791(b) provides:

            (b) Federal agencies;             affirmative       action
            program plans

                 Each     department,     agency,     and
            instrumentality (including the United States
            Postal Service and the Postal Regulatory
            Commission) in the executive branch and the
            Smithsonian Institution shall, within one
            hundred and eighty days after September 26,
            1973, submit to the Commission and to the
            Committee an affirmative action program plan
            for the hiring, placement, and advancement of
            individuals   with   disabilities   in   such

                                      -10-
29 U.S.C. § 794(a) (often referred to in the case law as section

504   of   the    Rehabilitation   Act),23   prohibited   federally   funded


            department,   agency,    instrumentality,   or
            Institution.    Such plan shall include a
            description of the extent to which and methods
            whereby the special needs of employees who are
            individuals with disabilities are being met.
            Such plan shall be updated annually, and shall
            be reviewed annually and approved by the
            Commission, if the Commission determines,
            after consultation with the Committee, that
            such plan provides sufficient assurances,
            procedures and commitments to provide adequate
            hiring,     placement,     and    advancement
            opportunities     for     individuals     with
            disabilities.
      23
           29 U.S.C. § 794 provides in relevant part:

            (a)    Promulgation of rules and regulations

                 No otherwise qualified individual with a
            disability in the United States, as defined in
            section 705(20) of this title, shall, solely
            by reason of her or his disability, be
            excluded from the participation in, be denied
            the   benefits   of,   or    be  subjected   to
            discrimination under any program or activity
            receiving Federal financial assistance or
            under any program or activity conducted by any
            Executive agency or by the United States
            Postal Service. The head of each such agency
            shall promulgate such regulations as may be
            necessary to carry out the amendments to this
            section    made    by    the    Rehabilitation,
            Comprehensive Services, and Developmental
            Disabilities Act of 1978. Copies of any
            proposed regulation shall be submitted to
            appropriate authorizing committees of the
            Congress, and such regulation may take effect
            no earlier than the thirtieth day after the
            date on which such regulation is so submitted
            to such committees.

29 U.S.C. § 794(a) (emphasis added).          As will be discussed below,

                                    -11-
programs or activities from excluding handicapped individuals from

participating in the program, or denying benefits to handicapped

individuals, “solely by reason of her or his disability.”       The

statute did not provide a private right of redress for violation of

either section.    Nevertheless, “all courts that considered the

issue found that section 504 established a private cause of action

for handicapped persons subjected to discrimination by recipients

of federal funds”; however, “a private cause of action founded on

handicap discrimination was not recognized upon section 501 as

against a federal government employer.”     Prewitt v. U.S. Postal

Serv., 662 F.2d 292, 302 (5th Cir. 1981).

           Congress remedied this omission in 1978.    As the Third

Circuit noted in Spence v. Straw, 54 F.3d 196, 199 (3d Cir. 1995),

however, it did so in a “less than artful manner,” by adopting

overlapping amendments from the House and the Senate.          “The

Senate’s contribution focused on provision of a new section in the

Rehabilitation Act--section 505, codified at 29 U.S.C. § 794a.”

Id.   The new section provided that, with respect to 29 U.S.C. § 791

governing federal employers, “[t]he remedies, procedures, and

rights set forth in [Title VII] of the Civil Rights Act of

1964 . . . shall be available” to any aggrieved employee or




the highlighted language, and what follows, was added by amendment
in 1978.

                                -12-
applicant for employment.        29 U.S.C. § 794a(a)(1).24        The Senate

also codified the cause of action--already recognized by most

courts--for those aggrieved by providers and recipients of federal

assistance.     With   respect    to   those   claims,   “[t]he    remedies,

procedures, and rights set forth in [T]itle VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d et seq.,” were available to

aggrieved parties.     29 U.S.C. § 794a(a)(2).25


     24
          Section 794a(a)(1) of Title 29 provides:

                (a)(1) The remedies, procedures, and
           rights set forth in section 717 of the Civil
           Rights Act of 1964 (42 U.S.C. 2000e-16),
           including the application of sections 706(f)
           through 706(k) (42 U.S.C. 2000e-5(f) through
           (k)) (and the application of section 706(e)(3)
           (42 U.S.C. 2000e-5(e)(3)) to claims of
           discrimination in compensation), shall be
           available, with respect to any complaint under
           section 791 of this title, to any employee or
           applicant for employment aggrieved by the
           final disposition of such complaint, or by the
           failure to take final action on such
           complaint. In fashioning an equitable or
           affirmative action remedy under such section,
           a   court   may    take   into   account   the
           reasonableness of the cost of any necessary
           work place accommodation, and the availability
           of alternatives therefor or other appropriate
           relief in order to achieve an equitable and
           appropriate remedy.
     25
          Section 794a(a)(2) of Title 29 provides:

           The remedies, procedures, and rights set forth
           in title VI of the Civil Rights Act of 1964
           (42 U.S.C. 2000d et seq.) (and in subsection
           (e)(3) of section 706 of such Act (42 U.S.C.
           2000e-5), applied to claims of discrimination
           in compensation) shall be available to any
           person aggrieved by any act or failure to act

                                   -13-
             The House, however, took a different approach.                      Because

courts had recognized a private cause of action under § 794

(section     504    of    the    Rehabilitation         Act),     the   House     merely

“‘extended         section      504’s        proscription         against       handicap

discrimination       to   “any    program         or   activity    conducted         by   an

Executive agency or by the United States Postal Service.”’”

Spence, 54 F.3d at 199 (quoting Prewitt, 662 F.2d at 302).26                              As

noted by the Fifth Circuit, “[t]he joint House-Senate conference

committee could have chosen to eliminate the partial overlap

between the two provisions, but instead the conference committee,

and    subsequently       Congress      as    a    whole,   chose       to    pass    both

provisions, despite the overlap.”                 Prewitt, 662 F.2d at 304.               In

taking this action, the Fifth Circuit concluded:

             Congress clearly recognized both in section
             501 and in section 504 that individuals now
             have a private cause of action to obtain
             relief for handicap discrimination on the part
             of the federal government and its agencies.
             The amendments to section 504 were simply the
             House’s answer to the same problem that the
             Senate saw fit to resolve by strengthening
             section 501.

Id.

             The manner in which Congress amended the Rehabilitation

Act,    however,     created     an   “apparently        incongruent         enforcement


             by any recipient of Federal assistance or
             Federal provider of such assistance under
             section 794 of this title.
       26
            See supra note 23.

                                         -14-
scheme.”   Spence, 54 F.3d at 199.        According to the terms of the

amended Rehabilitation Act, federal agencies could “be sued for

violation of either section 501 or 504 of the Act.”                 Id.    If a

federal    employee    sues   under   §    791   (section     501     of    the

Rehabilitation   Act),    Title   VII’s   remedies   and    administrative

processes apply.      “Thus, a party is barred from suing a federal

agency for violation of section 501 [29 U.S.C. § 791] if he or she

has failed to exhaust administrative remedies under Title VII.”

Id. at 200.    However, an aggrieved federal employee also may sue

for a violation of § 794, which may be redressed through the

remedies and procedures set forth in Title VI of the Civil Rights

Act, for which exhaustion is not required.        See id.27


     27
           The Seventh Circuit addressed this incongruity in
McGuinness v. United States Postal Service, 744 F.2d 1318 (7th Cir.
1984). It stated that the plaintiff could not “avoid dismissal of
the suit as premature by arguing that it is really a suit not under
section 505(a)(1) of the Rehabilitation Act but under section 504,
29 U.S.C. § 794.” Id. at 1321. The court recognized that “section
504 ha[d] been held applicable to employment discrimination as well
as other forms of discrimination against the handicapped by
recipients of federal money.” Id. Nevertheless, it observed that
it was “unlikely that Congress, having specifically addressed
employment of the handicapped by federal agencies (as distinct from
employment by recipients, themselves nonfederal, of federal money)
in section 501, would have done so again a few sections later in
section 504.” Id.      According to our colleagues in the Seventh
Circuit,

           it would make no sense for Congress to provide
           (and in the very same section--505(a))
           different sets of remedies, having different
           exhaustion requirements, for the same wrong
           committed by the same employer; and there is
           no indication that Congress wanted to do
           this--as of course it could do regardless of

                                   -15-
            Although   courts   have    differed   slightly   in   their

reasoning, every circuit court to address the issue directly has

determined that a federal employee who brings an action under the

Rehabilitation Act must exhaust administrative remedies before

proceeding to court.      See Spence, 54 F.3d at 201 (collecting

cases).28


            what might seem sensible to us--when it added
            section 505 in 1978.

Id.   That court went on to determine that it did not have to
address whether federal employees could bring a cause of action
under only § 791 or under both § 791 and § 794, because, in either
situation, it was Congress’s intent that federal employees exhaust
the administrative remedies contained in Title VII. Accord Boyd v.
U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985) (“[W]e agree
with the Seventh Circuit that ‘it is unlikely that Congress, having
specifically addressed employment of the handicapped by federal
agencies (as distinct from employment by recipients, themselves
nonfederal, of federal money) in section 501, would have done so
again a few sections later in section 504.’” (quoting McGuinness,
744 F.2d at 1321)).
     28
         See also James Lockhart, Annotation, To What Extent Are
Federal Entities Subject to Suit under § 504(a) of the
Rehabilitation Act (29 U.S.C.A. § 794(a)), Which Prohibits any
Program or Activity Conducted by any Executive Agency or the Postal
Service from Discriminating on Basis of Disability, 146 A.L.R. Fed.
319 § 5 (1998). Among the authorities cited are: Doe v. Garrett,
903 F.2d 1455, 1461 (11th Cir. 1990) (holding that “private actions
against federal government employers under the Act, whether brought
under section 791 or 794, must satisfy the requirement of
exhaustion of administrative remedies in the manner prescribed by
section [794a(a)(1) ] and thus by Title VII” (alteration in
original) (internal quotation marks omitted)); Morgan v. United
States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir. 1986)
(requiring exhaustion of administrative remedies for federal
employee even when he proceeds under § 504); Boyd, 752 F.2d at 413
(following McGuinness and holding “that section 501 is the
exclusive remedy for discrimination in employment by the Postal
Service on the basis of handicap”); Smith v. United States Postal
Service, 742 F.2d 257, 262 (6th Cir. 1984) (holding that the 1978

                                 -16-
          Although district courts within our own circuit similarly

have held that exhaustion is required for federal employees,29 and,

in at least one case, we have suggested the same,30 we never have

addressed directly whether a federal employee seeking redress under

the Rehabilitation Act is limited to proceeding under § 791

(section 501 of the Rehabilitation Act) and, if not, whether she

must nonetheless exhaust administrative remedies.

          We noted this “procedural wrinkle” in Leary v. Dalton, 58

F.3d 748, 751 (1st Cir. 1995), in which a federal employee had

brought a Rehabilitation Act claim under 29 U.S.C. § 794 (section

504 of the Rehabilitation Act).   We stated:

          Although the district court decided this case
          under § 504 of the Rehabilitation Act, 29
          U.S.C.    §   794    (prohibiting    disability
          discrimination by non-federal recipients of
          federal funds), Leary actually invoked § 501
          of the Act, 29 U.S.C. § 791, in his complaint.


Amendments to the Rehabilitation Act “mandate exhaustion as a
prerequisite to such claims, regardless of whether they are brought
under section 501 or section 504”); and Prewitt v. United States
Postal Service, 662 F.2d 292, 304 (5th Cir. 1981) (“[I]n order to
give effect to both the House and the Senate 1978 amendments
finally enacted, we must read the exhaustion of administrative
remedies requirement of section 501 into the private remedy
recognized by both section 501 and section 504 for federal
government handicap discrimination.”).
     29
        See Clark v. U.S. Postal Serv., 592 F. Supp. 631, 632 (D.
Mass. 1984).
     30
        See Stoll v. Principi, 449 F.3d 263, 266 (1st Cir. 2006)
(“The lodging of either a formal appeal with the Board or a formal
complaint with the agency demarcates the point of no return. From
that point forward, the complainant must exhaust her claim in the
chosen forum.” (citation omitted)).

                               -17-
            Section 501(b) imposes an affirmative duty on
            every “department, agency, and instrumentality
            . . . in the executive branch” of the federal
            government   to   provide   adequate   hiring,
            placement, and advancement opportunities for
            individuals with disabilities. Some circuits
            view § 501, accordingly, as the exclusive
            right of action for federal employees who
            suffer disability discrimination in the course
            of their direct employment. Other circuits,
            ours included, have permitted such claims to
            be brought under both § 501 and § 504.

                 The differences between the two sections
            may be significant in some cases (though not
            this one, as we shall explain). Not only is
            it unclear whether the right of action under
            § 504 overlaps with that in § 501, it is also
            unclear, in light of recent amendments to the
            Rehabilitation Act, whether the two sections
            require the same showing of causation. . . .

                 We therefore regard the applicability of
            § 504 and its sole causation test in this
            federal employment suit as an open question;
            but one that we need not reach here. Leary
            agrees on appeal that his claim arises under
            § 504, and that he bears the burden of
            demonstrating that he was terminated “solely
            by reason of” his disability.

Leary, 58 F.3d at 751-52 (first alteration in original) (emphasis

added)    (citations   omitted).31      Although   Leary   discussed   the


     31
        In one recent case in which the issue of exhaustion was not
raised, we stated in passing that the Rehabilitation Act does not
require exhaustion. See Farris v. Shinseki, 660 F.3d 557, 562 n.5
(1st Cir. 2011). Tracing back that statement to its origin (Farris
relies on Prescott v. Higgins, 538 F.3d 32, 44 (1st Cir. 2008),
which in turn cites Brennan v. King, 139 F.3d 258, 268 n.12 (1st
Cir. 1998)), however, it is clear that the statement concerns a
claim brought by a non-federal employee under § 794 (section 504 of
the Rehabilitation Act), not § 791 (section 501 of the
Rehabilitation Act). See Brennan, 139 F.3d at 268 n.12 (addressing
claims brought by university professor and stating that “[t]he
Rehabilitation Act derives its procedural requirements from Title

                                     -18-
difference in causation standards, it did not discuss the disparity

in    exhaustion   requirements;      indeed,    it   made    no   mention   of

exhaustion at all.

             The court’s methodology in Leary counsels that we need

not resolve, in the present case, whether federal employees,

proceeding exclusively under § 794, must exhaust administrative

remedies.    Here, when the Government raised in the district court

that   Ms.   Bartlett    had    not   complied   with   the    forty-five-day

administrative exhaustion requirement, she never asserted that she

was    exempt   from    the    exhaustion    requirement     because   it    was

inapplicable to the provision on which she was resting her claim.

At the very least, by failing to raise the issue in the district

court, she has forfeited any argument that exhaustion of remedies

under the Rehabilitation Act was not required in this case.                  See

Farris v. Shinseki, 660 F.3d 557, 562 n.5 (1st Cir. 2011) (forgoing

a determination of whether the plaintiff was required to exhaust

administrative remedies because the issue had not been raised in

the district court or briefed on appeal).



B.    Equitable Tolling

             The central issue raised by Ms. Bartlett’s appeal is

whether the district court should have equitably tolled the forty-




VI, which does not have an exhaustion requirement”).

                                      -19-
five-day time limit, set by regulation,32 within which she was

required to commence the administrative complaint procedure for her

allegedly discriminatory constructive discharge.                  In the context

of litigation initiated by federal employees, we have noted that

“administrative     exhaustion       ‘is   a   condition    to    the     waiver   of

sovereign     immunity’”      and,     therefore,       “‘must       be       strictly

construed.’”      Id. at 563 (quoting Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 94 (1990)).              It is “[o]nly in exceptional

circumstances”     that    equitable       tolling   will     extend      a    filing

deadline.    Id. (internal quotation marks omitted).                 To this end,

“the heavy burden” of “prov[ing] entitlement to equitable relief

lies with the complainant.”          Id.

            Generally speaking, “[e]quitable tolling suspends the

running of the limitations period ‘if the plaintiff, in the

exercise    of   reasonable      diligence,     could   not      have     discovered

information essential to [his claim].’”                 Ortega Candelaria v.

Orthobiologics     LLC,    661    F.3d     675,   679-80      (1st      Cir.     2011)

(alteration in original) (quoting Barreto-Barreto v. United States,

551 F.3d 95, 100 (1st Cir. 2008)).33              In making a determination


     32
          See supra note 2.
     33
         We have observed that “[e]quitable tolling casts a wider
net than [the related doctrine of] equitable estoppel.” Ortega
Candelaria v. Orthobiologics LLC, 661 F.3d 675, 679 (1st Cir. 2011)
(internal quotation marks omitted). In contrast to equitable
tolling,

            [e]quitable estoppel applies when a plaintiff who

                                       -20-
whether equitable tolling should apply in the context of a claim

brought under the Age Discrimination in Employment Act (“ADEA”), we

have instructed that,

          where a plaintiff is claiming excusable
          ignorance of the filing deadline, we believe a
          court should initially determine whether the
          plaintiff had either actual or constructive
          knowledge of his rights under the ADEA.
          Actual knowledge occurs where an employee
          either learns or is told of his ADEA rights,
          even if he becomes only generally aware of the
          fact that there is a statute outlawing age
          discrimination     and    providing     relief
          therefor. . . .    Constructive knowledge, on
          the other hand, is “attributed” to an employee
          in situations where he has retained an
          attorney, or where an employer has fulfilled
          his statutory duty by conspicuously posting
          the official EEOC notices that are designed to
          inform employees of their ADEA rights. . . .

               If the court finds that the plaintiff
          knew, actually or constructively, of his ADEA
          rights, ordinarily there could be no equitable
          tolling based on excusable ignorance.

Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 753 (1st Cir. 1988)

(emphasis added) (citations omitted).




     knows of his cause of action reasonably relies on the
     defendant’s conduct or statements in failing to bring
     suit. In order to demonstrate entitlement to equitable
     estoppel, a plaintiff must show evidence of the
     defendant’s improper purpose or his constructive
     knowledge of the deceptive nature of his conduct . . . in
     the form of some definite, unequivocal behavior . . .
     fairly calculated to mask the truth or to lull an
     unsuspecting person into a false sense of security.

Id. (second and third alterations in original) (citation omitted)
(internal quotation marks omitted).

                               -21-
            If, however, the plaintiff did not have actual knowledge,

or if the employer failed to post the required notices, then “[t]he

court should also assess any countervailing equities against the

plaintiff.”    Id. (emphasis added).    Specifically, the court should

ask the following questions:

            [D]id he diligently pursue his claim, was his
            ignorance of his rights reasonable under the
            circumstances, and would allowing equitable
            tolling still fulfill the basic purposes
            behind the limited filing period--namely,
            providing the government an opportunity to
            conciliate while the complaint is fresh and
            giving early notice to the employer of
            possible litigation.

Id. (citations omitted).    “Finally, even if the court finds that

the above factors call for equitable tolling, it must then take

account of the degree to which delay prejudices the defendant.”

Id.



                                  1.

            Before the district court, Ms. Bartlett maintained that

she did not have actual knowledge of the forty-five-day deadline.

Her argument was supported by an affidavit, in which she states:

“No one from the defendant ever informed me that I only had forty-

five (45) days to file an employment discrimination claim.”34      As

noted above, however, ordinarily there cannot be equitable tolling

based on excusable ignorance if the plaintiff had either actual or


      34
           R.12-1 at 2.

                                 -22-
constructive knowledge of her statutory rights.            Kale, 861 F.2d at

753.        Although   Ms.   Bartlett    alleged   that   she   lacked   actual

knowledge of the filing deadline--and supported that allegation by

affidavit--she did not challenge the IRS’s assertion, supported by

the declaration of Damaris Ouellette, that it had complied with the

posting requirements.35        Ms. Bartlett, therefore, has not carried

her burden of showing a lack of constructive knowledge of the

filing requirements.

              In her brief before this court, Ms. Bartlett does not

contest      that   the   IRS’s   postings     sufficed   to    establish   her

constructive knowledge of the filing deadlines.                  Instead, she

maintains that the district court erred when it decided the issue

of notice on a motion to dismiss.              She argues that we have held

that the issue of constructive notice is one of fact that cannot be

decided on a motion to dismiss.            She relies on Mercado v. Ritz-

Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir. 2005),

to support her position.

              In Mercado, employees filed Title VII administrative

charges after the three-hundred-day deadline had passed, and their


       35
          Federal agencies, as part of their implementation of
“affirmative program[s] to promote equal opportunity and to
identify and eliminate discriminatory practices and policies,” must
“[m]ake written materials available to all employees and applicants
informing them of the variety of equal employment opportunity
programs and administrative and judicial remedial procedures
available to them and prominently post such written materials in
all personnel and EEO offices and throughout the workplace.” 29
C.F.R. § 1614.102(a) & (b)(5).

                                        -23-
employer, Ritz-Carlton, moved to dismiss on the ground that the

complaints were untimely.          In response, the plaintiffs “claimed

that Ritz-Carlton was barred from asserting timeliness as a defense

because the hotel [had] failed to comply with EEOC regulations

requiring employers to post notices advising employees of their

legal rights relating to employment discrimination.”             Id. at 44.

We held that “[h]ere, where appellants have asserted that no

informational notices were posted and that they had no knowledge of

their legal rights until informed by their attorney, they have met

the threshold requirements for avoiding dismissal of their Title

VII suit.”    Id. at 48 (footnote omitted).

             Ms.    Bartlett   maintains    that   Mercado   stands   for   the

proposition that, “where the issue of notice is disputed[,] a

plaintiff     has     met   the   threshold   requirements     for    avoiding

dismissal.”        Appellant’s Br. 13.     We agree, but that is not what

happened here.       Ms. Bartlett never has alleged that the IRS failed

to post the required notices.          Instead, she asserts that an IRS

employee never affirmatively informed her of the filing deadline.36

This assertion contests the issue of actual knowledge, but not

constructive knowledge.37




     36
          See R.12-1 at 2.
     37
        We are unaware, however, of any regulation, statute or case
law that imposes such an obligation on Government agencies, and
Ms. Bartlett has pointed to none.

                                     -24-
             Ms. Bartlett also suggests, without explicitly arguing,

that the district court’s ruling was more akin to summary judgment

than to dismissal for failure to state a claim.         See Appellant’s

Br. 14-15.    Under the Federal Rules of Civil Procedure, a district

court must advise the parties if, in ruling on a motion to dismiss,

it is considering materials outside the pleadings:

             If, on a motion under Rule 12(b)(6) or 12(c),
             matters outside the pleadings are presented to
             and not excluded by the court, the motion must
             be treated as one for summary judgment under
             Rule 56.     All parties must be given a
             reasonable opportunity to present all the
             material that is pertinent to the motion.

Fed. R. Civ. P. 12(d).     Here, the district court did not formally

convert the IRS’s motion to dismiss into a motion for summary

judgment, despite the fact that the motion was accompanied by other

materials.

             The district court’s failure to convert the motion,

however, does not require reversal.       We have made it clear that we

“do[] not mechanistically enforce the requirement of express notice

of a district court’s intention to convert a Rule 12(b)(6) motion

into a motion for summary judgment.”          Boateng v. InterAmerican

Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000).         “Instead, we treat

any error in failing to give express notice as harmless when the

opponent has received the affidavit and materials, has had an

opportunity to respond to them, and has not controverted their

accuracy.”      Id.   (internal   quotation   marks   omitted).    Here,


                                   -25-
Ms. Bartlett not only responded to the IRS’s motion to dismiss, but

attached several documents to her response.          Furthermore, in her

briefing on appeal, Ms. Bartlett does not argue that she was denied

an opportunity to respond, nor does she suggest that there are

other affidavits or documents that she would have submitted to the

district court if she had been given formal notice that the court

was converting the IRS’s motion to a motion for summary judgment.

Consequently, the failure by the district court to formally convert

the motion to dismiss into a motion for summary judgment was

harmless.38



                                      2.

            Ms. Bartlett also maintains that the filing deadline

should be tolled because she was suffering from mental illness. We

have recognized that mental illness may toll the time to file an

administrative claim of discrimination, but only if the plaintiff

has “show[n] that the mental disability was so severe that the

plaintiff     was   ‘[un]able   to   engage   in   rational   thought   and

deliberate decision making sufficient to pursue [her] claim alone

or through counsel.’”      Mélendez-Arroyo v. Cutler Hammer de P.R.

Co., 273 F.3d 30, 37 (1st Cir. 2001) (second and third alterations

     38
        Because Ms. Bartlett had constructive notice of the filing
requirement, we do not have to engage in the second step of the
equitable tolling analysis: “assess[ing] any countervailing
equities against the plaintiff.” Kale v. Combined Ins. Co. of Am.,
861 F.2d 746, 753 (1st Cir. 1988).

                                     -26-
in original) (quoting Nunnally v. MacCausland, 996 F.2d 1, 5 (1st

Cir. 1993)).    In this case, the district court applied this

standard and determined that equitable tolling was not appropriate

because Ms. Bartlett had not argued that her illness had resulted

in the necessary level of incapacity.39

          On appeal, Ms. Bartlett does not maintain that her

illness rendered her unable to engage in rational thought and

deliberate decision making.    Indeed, she explicitly alleges in her

Complaint that she “performed her duties and responsibilities

competently and her disability did not otherwise interfere with her

ability to perform her job.”   R.1 at 2.   Nowhere does Ms. Bartlett

allege that her mental condition--which she says did not affect her

job performance--worsened after her separation from employment.

She maintains only that the district court applied the incorrect

legal standard in determining whether the time limit should be

tolled based on mental illness. She argues that our case law “does

not stand for the proposition that in an equitable tolling analysis

a mental illness must be so severe as to deprive the sufferer of

the rational thought necessary to protect their legal rights.”

Appellant’s Br. 14.    Rather, she claims that the standard we

articulated in Lopez v. Citibank, 808 F.2d 905 (1st Cir. 1987)--a

case-law antecedent to Mélendez-Arroyo--“is a very narrow one” and


     39
        See R.25 at 4 (“Here, plaintiff does not contend that her
mental illness was so debilitating that she was unable to meet the
45-day deadline.”).

                                -27-
is    based   on    the   unique    facts   that    were   before    the    court.

Appellant’s Br. 14.

              We do not believe that the district court’s determination

runs afoul of Lopez.         In Lopez, the plaintiff filed his Title VII

action eighteen months after he had been notified that the EEOC had

dismissed     his    charge,     approximately     fifteen      months    after   the

ninety-day      statute     of     limitations     had   run.       The    plaintiff

maintained, however, that equitable tolling should be applied

because “he was mentally incapacitated during much or all of the

relevant eighteen-month period.”               Lopez, 808 F.2d at 906.             In

evaluating this claim, we noted that “there is no absolute rule

that would require tolling whenever there is mental disability.”

Id.    We observed that “[t]he federal courts have taken a uniformly

narrow view of equitable exceptions to Title VII limitations

periods.” Id. (internal quotation marks omitted).40 We concluded:


       40
         This is still the case. See, e.g., Wilkie v. Dep’t of
Health & Human Servs., 638 F.3d 944, 950 (8th Cir. 2011) (noting
that “the standard for tolling due to mental illness is a high one”
and reiterating that “a plaintiff seeking tolling on the ground of
mental incapacity must come forward with evidence that a mental
condition prevented him from understanding and managing his affairs
generally and from complying with the deadline he seeks to toll”
(internal quotation marks omitted)); Boos v. Runyon, 201 F.3d 178,
185 (2d Cir. 2000) (holding that a plaintiff’s “conclusory and
vague claim, without a particularized description of how her
condition adversely affected her capacity to function generally or
in relationship to the pursuit of her rights, is manifestly
insufficient to justify any further inquiry into tolling”); Miller
v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (refusing “to depart
from the traditional rule that mental illness tolls a statute of
limitations only if the illness in fact prevents the sufferer from
managing his affairs and thus from understanding his legal rights

                                        -28-
               Without an absolute rule in his favor,
          appellant cannot prevail here. Appellant was
          represented by counsel during his period of
          illness, and counsel pursued appellant’s
          discrimination claim before the EEOC. It thus
          seems unlikely that appellant’s illness
          deprived his counsel of the knowledge or
          consent needed to file a court complaint; it
          is more likely that counsel knew plaintiff
          wished to pursue his legal remedies and knew
          (or should have known) about the relevant
          limitations period.      And, appellant has
          alleged no specific facts that would show the
          contrary. In such circumstances, we believe a
          federal court should assume that the mental
          illness was not of a sort that makes it
          equitable to toll the statute--at least absent
          a strong reason for believing the contrary.

Id. at 907.

          We agree with Ms. Bartlett that, in Lopez, the fact that

the plaintiff had retained counsel factored into our analysis.

However, nothing in Lopez suggests a more relaxed standard for

assessing mental incapacity in the context of equitable tolling.

See id. at 906.   Morever, since Lopez, we have said:

          Both cases, Lopez and Nunnally, said that
          equitable tolling was available in principle
          but only if the plaintiff showed that the
          mental disability was so severe that the
          plaintiff was “[un]able to engage in rational
          thought   and   deliberate   decision   making
          sufficient to pursue [her] claim alone or
          through counsel.” [Nunnally,] 996 F.2d at 5.
          Lopez rejected the claim because the plaintiff
          had been represented by counsel, 808 F.2d at
          907; Nunnally thought a hearing required where
          the plaintiff showed that she was “nearly a
          street person” with a probable diagnosis of
          paranoid schizophrenia, 996 F.2d at 6.


and acting upon them”).

                               -29-
Mélendez-Arroyo, 273 F.3d at 37 (emphasis added).               In Mélendez-

Arroyo, we made it “clear that merely to establish a diagnosis such

as severe depression is not enough.”               Id. at 38.    Instead, a

plaintiff must show that she is, because of her disability,

“[un]able to engage in rational thought and deliberate decision

making sufficient to pursue [her] claim alone or through counsel.”

Id. at 37 (alterations in original) (quoting Nunnally, 996 F.2d at

5); see also Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)

(stating “the traditional rule [is] that mental illness tolls a

statute of limitations only if the illness in fact prevents the

sufferer from managing his affairs and thus from understanding his

legal rights and acting upon them”).

             The documentation that Ms. Bartlett submitted to the

district court fell far short of what is necessary to “raise[] a

factual dispute about her capacity that could not be resolved

solely on the papers.”      Id. at 38.      Ms. Bartlett never averred, nor

does   any   of   her   evidence   point    to   the   conclusion,   that   her

depression deprived her of the ability to engage in rational

thought or deliberate decision making.             She maintains only that

“she was experiencing a severe mental illness,” Appellant’s Br. 17,

but, under our case law, “establish[ing] a diagnosis such as severe

depression is not enough,” Mélendez-Arroyo, 273 F.3d at 38.

Rather, the alleged severe mental illness must be marked by a

significantly reduced capacity to make rational decisions. On


                                     -30-
appeal Ms. Bartlett does not argue that she could come forward with

evidence that her depression rendered her unable to “understand[]

h[er] legal rights and act[] upon them,” Miller, 77 F.3d at 191,

but was deprived of the opportunity to do so.41

            Because    Ms.   Bartlett   has     not   alleged   that   she   was

mentally incapacitated during the forty-five-day filing period and

has   not   argued    that   she    could    come     forward   with   evidence

establishing such incapacity, she has not made the necessary

showing to establish that equitable tolling should be applied to

save her untimely administrative action.



                                   Conclusion

            For the reasons set forth above, we affirm the judgment

of the district court.



            AFFIRMED




      41
        We do not imply, of course, that severe depression never
could meet that standard. We simply observe that no such showing
has been made here.

                                      -31-
