               IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 01-10393
                               Summary Calendar
                            _____________________



MARGARET J. LEWIS,

                                                            Plaintiff-Appellant,

                                      versus

DONALD RUMSFELD, SECRETARY,
DEPARTMENT OF DEFENSE,

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Northern District of Texas
                         USDC No. 00-CV-28
_________________________________________________________________
                        September 21, 2001

Before JOLLY, BARKSDALE, and BENAVIDES Circuit Judges.

PER CURIAM:*

     Margaret J. Lewis appeals the district court’s grant of

summary   judgment    for     the     Army     Air    Force   Exchange   Service

(represented by the Secretary of Defense) in her suit claiming

discrimination in violation of the Age Discrimination in Employment

Act, 29 U.S.C. § 621 et seq.           Because we agree with the district

court’s   holding    that     Lewis    failed        to   properly   exhaust   her


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
administrative      remedies     and        that   equitable     tolling       was

inapplicable, we affirm the grant of summary judgment dismissing

her complaint.

                                        I

      Until August 28, 1998, Margaret J. Lewis was employed by the

Army Air Force Exchange Service (“AAFES”) and worked for the base

exchange at Dyess Air Force Base in Abilene, Texas.                  At the point

of her involuntary resignation, Lewis was working as a Department

Manager.   In September 1996, David Albaugh became the Dyess Main

Store Manager and Lewis’s second line supervisor. According to

Lewis, Albaugh nitpicked and harassed the older workers at the

Dyess exchange.      Lewis claims that Albaugh often ridiculed her

because of her age, and once commented that Lewis was just “old and

senile.”   Lewis turned 65 on July 9, 1998.

      In July and August 1998, an investigation was conducted into

allegations that Lewis and other employees had used store coupons

from other stores to get discounts on merchandise to which they

were not entitled.    Two other employees found to have used coupons

from other stores resigned during July of 1998.                 Although Lewis

argued that she had permission from management to use the coupons

and   agreed   to    repay     the     difference,    she      was    placed    on

administrative leave on July 31, 1998.

      On August 24, 1998, Lewis traveled from Abilene to the AAFES

headquarters in Dallas to meet with Sergeant Tracy Little of the



                                        2
Inspector General’s office.1      They discussed Lewis’s complaints of

age discrimination, placement on administrative leave, and pending

termination. Sergeant Little told Lewis that she would investigate

her claims of age discrimination.         Sergeant Little contacted Lewis

in September 1999,2 after Lewis had involuntarily retired, and told

her that AAFES’s actions appeared to be in compliance with the law.

     Lewis filed a complaint of age discrimination with the Texas

Commission on Human Rights and the Equal Employment Opportunity

Commission on January 22, 1999. After filing this complaint, Lewis

was instructed, in a letter dated February 26, 1999, to contact an

EEO Counselor.     She was provided a list of counselors in April

1999.    Lewis contacted EEO Counselor Gail Woods on April 13, 1999,

and met with Woods for EEO counseling on May 7, 1999, to discuss

Lewis’s    age   discrimination    claim.           Lewis    filed    a     formal

administrative complaint on June 25, 1999.              AAFES dismissed the

administrative complaint because Lewis failed to contact an EEO

Counselor within forty-five days from the date of the adverse

personnel action, as required under 29 C.F.R. §1614.105(a)(1).

     Lewis    brought   this   suit       against    AAFES    under       the   Age

     1
      The Inspector General’s office investigates claims of fraud,
waste and abuse, and ensures Agency compliance with relevant rules
and regulations. It is not clear from the record why Lewis chose
to go to the Inspector General’s office with her discrimination
complaint.
     2
      From the record and briefs, it is not clear whether Sergeant
Little contacted Lewis in September of 1998 or September of 1999.
That fact, however, does not determine the final outcome in this
case.

                                      3
Discrimination in Employment Act (“ADEA”) on February 7, 2000. She

filed an amended complaint on October 3, 2000.   The district court

granted AAFES’s motion for summary judgment on February 22, 2001,

holding that Lewis failed to comply with the federal regulations,

thereby failed to properly exhaust her administrative remedies, and

that equitable tolling was not appropriate in the circumstances.

Lewis has timely appealed.

                                 II

     We review the district court’s grant of summary judgment de

novo.    Baldwin v. Daniels, 250 F.3d 943, 948 (5th Cir. 2001).

     Lewis acknowledges that she had forty-five days from the date

of the discriminatory action to meet with an EEO counselor under

the administrative rules governing employee discrimination suits

against federal agencies.    See 29 C.F.R. §1614.105(1).3   “Failure

to notify the EEO counselor in timely fashion may bar a claim,

absent a defense of waiver, estoppel, or equitable tolling.”


     3
      Section 1614.105(a) states
     aggrieved    persons  who   believe    they   have   been
     discrimination against on the basis of . . . age or
     handicap 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.
Under 29 U.S.C. § 633a(c)-(d), Lewis could also have given the EEOC
thirty days’ notice of intent to file a lawsuit, as long as the
notice was within 180 days of the events giving rise to the
complaint, and then filed the lawsuit directly in federal court.

                                  4
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992).                Although more

than forty-five days had passed between the date of the allegedly

discriminatory action and Lewis’s meeting with an EEO counselor,

Lewis     contends,        first,   that     her   initial    complaint    of   age

discrimination        to     the    Investigator     General’s    office     (“IG”)

satisfies the 29 C.F.R. §1614.105(a)(1) requirement and, second or

alternatively, that she is entitled to equitable tolling because

the IG failed to notify her of the relevant time limitations.

      Lewis’s meeting with the Sergeant Little does not satisfy the

requirements of 29 C.F.R. §1614.105(a)(1) because Little is not an

EEO Counselor within the meaning of the regulation.                         An EEO

Counselor is appointed by the EEO Director of the applicable agency

and has significant duties that are defined in the regulations;

EEO   Counselors      must     inform      individuals   of   their   rights    and

responsibilities in writing, they must submit reports to the

agency, and they must inform individuals of the relevant time

frames.    See 29 C.F.R. §1614.105(b); 24 C.F.R. §7.12.               The names,

addresses and phone numbers of the EEO Counselors must be clearly

posted for employees to see.            29 C.F.R. §1614.102(b)(7).         Allowing

plaintiffs to substitute complaints to other offices for counseling

with an EEO Counselor destroys the purpose of having EEO Counselors

who must comply with federal regulations.                Thus, Lewis’s argument

that her complaint to the IG satisfies the section 1614.105(a)

requirement that she meet with an EEO counselor within forty-five

days is unpersuasive.

                                            5
       Lewis next argues that she is entitled to equitable tolling of

her claim because the IG did not inform her that she needed to file

any    further    complaint    to   preserve    her   rights.     Furthermore,

because Sergeant Little of the IG’s office stated the opposite--

that she told Lewis to file a claim with an EEO Counselor and

directed her to the EEO Counselor’s office--there is a fact issue

as    to   what   the   IG   told   Lewis,   which    would   preclude   summary

judgment.

       As we have often recognized, the time limits established in

the regulations are not jurisdictional; they are subject to the

traditional equitable defenses of estoppel and equitable tolling.

Conway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992).4

Federal courts typically apply equitable tolling only “sparingly.”

Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. 1992) (citations

omitted).     Lewis has the burden of demonstrating facts that would

entitle her to equitable tolling.            Hood v. Sears Roebuck, 168 F.3d

       4
      The regulations even expressly allow the agency or the EEOC
to extend the 45-day time limit
     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 . . . 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.
29 C.F.R. §1614.105. The agency here declined to extend the 45
days and dismissed her complaint. It specifically noted that Lewis
was under constructive notice of her rights because the regulations
were properly posted.


                                        6
231, 232 (5th Cir. 1999).      Equitable tolling or equitable estoppel

is appropriate “when a plaintiff’s unawareness of his ability to

bring a claim--either unawareness of the facts necessary to support

a discrimination change or unawareness of his legal rights–-is due

to the defendant’s misconduct.”         Christopher v. Mobil Oil Corp.,

950 F.2d 1209, 1215 (5th Cir. 1992).         The EEOC’s misleading the

plaintiff about his or her rights can also be the basis for

equitable tolling, although incomplete oral statements made by the

EEOC during a telephone call are not sufficient to merit tolling.

Conway, 955 F.2d at 362-63.

     Lewis argues that the IG’s failure to inform her that she was

required to meet with an EEO Counselor was a misrepresentation on

which she relied.     The IG, however, even according to Lewis’s

account, made no misrepresentation;        Sergeant Little did not tell

Lewis that she did not need to file a complaint, nor did she give

Lewis incorrect information.      Even viewing the facts in the light

most favorable   to   Lewis,    Sergeant   Little   at   most   gave   Lewis

incomplete information, which under the circumstances is no basis

for equitable tolling.   Furthermore, Lewis was under constructive

notice of the deadlines in the EEO process because the names and

addresses of the EEO Counselors, as well as the 45 day time period,

were posted in the break room at the Dyess exchange in accordance

with 29 C.F.R. §1614.102(b)(4).      In sum, these facts simply do not

support equitable tolling.

                                   III

                                    7
     In conclusion, we hold that the district court properly

granted the defendant’s motion for summary judgment because Lewis

did not initiate contact with an EEO Counselor within the governing

time period and because she is not entitled to equitable tolling.

The judgment of the district court is therefore

                                                  A F F I R M E D.




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