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Brooks v. Chao

United States District Court, S.D. Florida

March 28, 2018

ELAINE L. CHAO, Secretary, Department of Transportation, [1] Defendant.


          MARCIA G. COOKE United States District Judge

         Plaintiff Jonathan N. Brooks (“Plaintiff) brings this action pro se against Defendant Elaine L. Chao, Secretary of the Department of Transportation, under Section 501 of the Rehabilitation Act of 1973, as Amended, 29 U.S.C. § 791 et seq.., alleging disability discrimination. Defendant filed a Motion to Dismiss (“Motion”) (ECF No. 32), to which Plaintiff filed a Response to Defendant's Motion to Dismiss and Request for Equitable Tolling of Title VII Limitations Period (ECF Nos. 39, 40)[2]. Defendant then filed a Reply (ECF No. 41). The matter is now ripe for review. For the reasons discussed below, Defendant's Motion is denied.

         I. BACKGROUND[3]

         Plaintiff began his employment with the Federal Aviation Administration (“FAA”) as an Engineering Technician on July 28, 2014. Prior to his hiring, Plaintiff alleges that the FAA knew of his disability. Despite being aware of his disability, which consisted of a skeletal condition, the FAA offered him employment. On or about August 24, 2014, Plaintiff requested reasonable accommodations for his disability and was advised he would need his doctor to complete a form detailing his limitations. Plaintiff's doctor completed the form and it was submitted to the FAA, after which Plaintiff alleges he received reasonable accommodations. However, on July 23, 2015, Plaintiff received a letter stating that his employment was terminated effective July 25, 2015. The letter “vaguely” stated the reason for Plaintiff's termination was that Plaintiff had not demonstrated he could meet the performance requirements of the position of Engineering Technician.

         On or about August 20, 2015, Plaintiff completed an Intake Questionnaire regarding potentially filing a claim for employment discrimination. He provided this form to the Palm Beach County Office of Equal Opportunity (“PBC Office”); however, on or about September 11, 2015, he received a call from the PBC Office advising him he needed to contact an FAA counselor. The following business day, September 14, 2015, Plaintiff contacted the appropriate counselor. Fifty-one days had elapsed since the effective date of Plaintiff's termination; however, Plaintiff alleges the Equal Employment Opportunity (“EEO”) counselor accepted his reason for making contact outside the mandatory forty-five day time period.

         After engaging in informal reconciliation efforts, Plaintiff filed a formal complaint with the Equal Employment Opportunity Commission (“EEOC”). However, the EEOC dismissed Plaintiff's formal complaint on May 5, 2016 on the basis that Plaintiff did not timely contact the EEO counselor. The next day, Plaintiff appealed the decision, stating he was unaware he needed to contact the EEO counselor directly and had acted diligently in filing his claim with the PBC Office. Plaintiff's appeal was denied and the EEOC issued Plaintiff a “right to sue” letter. Defendant then filed the instant Motion to Dismiss, arguing Plaintiff's Amended Complaint is subject to dismissal because he made initial contact with the EEO Counselor outside the statutorily mandated forty-five day time period. Plaintiff contends the 45 day period should be equitably tolled.


         “The Rehabilitation Act prohibits federal agencies from discriminating in employment against individuals with disabilities.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005); see also 29 U.S.C. § 794(a). “A plaintiff asserting a private right of action under the Rehabilitation Act must satisfy the exhaustion of administrative remedies requirement in the manner prescribed by Title VII of the Civil Rights Act of 1964 . . . .” Gaillard v. Shinseki, 349 F. App'x 391, 392 (11th Cir. 2009) (citing 42 U.S.C. §§ 2000e-5, 16, 29 U.S.C. § 794a; Doe v.

         Garrett, 903 F.2d 1455, 1459-60 (11th Cir.1990)). To that end, federal regulations require an aggrieved person consult a counselor prior to filing a complaint to attempt to informally resolve the matter. 29 C.F.R. § 1614.105(a). Contact with a counselor must be made within forty-five days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1). “Generally, when the claimant does not initiate contact within the 45-day charging period, the claim is barred for failure to exhaust administrative remedies.” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). However, the regulations also require the agency or Commission to extend the time limit if the aggrieved person shows he was not notified of the time limits and was not otherwise aware of them, that despite due diligence he was prevented by circumstances beyond his control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or Commission. 29 C.F.R. § 1614.105(a)(2). In addition, “[t]he Supreme Court has held that ‘filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a prerequisite that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.'” Gaillard, 349 F. App'x at 392 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).

         The test “for equitable tolling requires the party seeking tolling to prove ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.'” Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (quoting Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 755 (2016)).

The interests of justice are most often aligned with the plaintiff when the defendant misleads [him] into allowing the statutory period to lapse; when [he] has no reasonable way of discovering the wrong perpetrated against [him]; or when [he] timely files a technically defective pleading and in all other respects acts with the proper diligence . . . which . . . statutes of limitation were intended to insure.

Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (internal quotations and citations omitted).


         Defendant argues Plaintiff's Amended Complaint should be dismissed because he made contact with the EEO Counselor outside the forty-five day time period. Plaintiff contends the 45 day period should be equitably tolled. First, Plaintiff argues that although the termination letter explained that Plaintiff must contact an EEO counselor within forty-five days, it did not explain where or how Plaintiff should do so. By contrast, the letter provided more specific directions as to how to appeal his termination to the Merit Systems Protection Board (“MSPB”)-despite Plaintiff's position not providing him a right of appeal to the MSPB. Plaintiff contends this “blatant omission” was an attempt to prevent him from receiving relief from Defendant's illegal and discriminatory termination. Plaintiff next argues that he pursued his rights with due diligence by contacting the PBC Office on August 20, 2015. While that was the incorrect office with which to ...

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