United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2007 Decided May 25, 2007
No. 05-5494
CARLA HARRIS,
APPELLANT
v.
ALBERTO GONZALES,
ATTORNEY GENERAL OF THE UNITED STATES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv02203)
Stephen Z. Chertkof argued the cause and filed the briefs for
appellant.
Rhonda C. Fields, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Michael J. Ryan, Assistant U.S. Attorney, entered an
appearance.
Before: TATEL, GARLAND, and BROWN, Circuit Judges.
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TATEL, Circuit Judge: Appellant, an independent
contractor working for the Department of Justice, contacted an
equal employment opportunity counselor to file a sex
discrimination complaint against the Department, but she failed
to do so until after the 45-day time limit for federal employees
to make such contacts had expired. The applicable regulation
requires an extension of the 45-day period if the complainant
“was not notified of the time limits.” 29 C.F.R. §
1614.105(a)(2). Concluding that appellant should have known
about the 45-day requirement from posted notices, the district
court granted summary judgment to the Department. For the
reasons set forth in this opinion, we reverse.
I.
Title VII of the Civil Rights Act of 1964, as amended,
makes it unlawful for the federal government to discriminate in
employment on the basis of sex, 42 U.S.C. § 2000e-16, a
prohibition that includes discrimination on the basis of
pregnancy, id. § 2000e(k). Before filing suit, Title VII plaintiffs
must timely exhaust their administrative remedies. Id.
§ 2000e-16(c). Specifically, Equal Employment Opportunity
Commission (EEOC) regulations require that “aggrieved
[federal employees] . . . initiate contact with a[n Equal
Employment Opportunity (EEO)] Counselor within 45 days of
the date of the matter alleged to be discriminatory.” 29 C.F.R.
§ 1614.105(a)(1); see id. § 1614.103(b)–(c). Subsection (a)(2)
of the regulation further provides that “[t]he agency or the
[EEOC] shall 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 . . . or for other
reasons considered sufficient . . . .” 29 C.F.R. § 1614.105(a)(2).
From April through October 2002, Appellant Carla Harris,
an employee of Integrated Management Services, Inc. (IMSI),
3
worked as an independent contractor in the Security Programs
Office of the Executive Office for United States Attorneys
(EOUSA) of the Department of Justice (DOJ). Seven months
after Harris completed that assignment, DOJ arranged for her to
work in a different EOUSA group. Gloria Harbin, Harris’s
project supervisor, selected her for the new assignment without
knowing that Harris was pregnant. But by the time Harris
reported for her first day of work on May 31, 2003, her
pregnancy was apparent. That same day, after briefly meeting
with Harris, Harbin directed IMSI to remove her from the
contract. IMSI fired her the following day. Over seven months
later, learning that four other women had also complained that
Harbin had discriminated against them because of their
pregnancies, Harris contacted an EEO counselor to file a
complaint of sex discrimination. Although the record is silent
on the matter, we presume that DOJ dismissed Harris’s
complaint as untimely.
Harris subsequently filed suit in the United States District
Court for the District of Columbia, alleging that DOJ unlawfully
discriminated against her on the basis of sex. DOJ moved to
dismiss, arguing that because Harris contacted the EEO
counselor more than 45 days after being fired, she failed to
timely exhaust her administrative remedies. See 29 C.F.R. §
1614.105(a)(1). Harris responded that she should have received
an extension under subsection (a)(2) of the EEOC regulations.
See id. § 1614.105(a)(2). In support, Harris submitted an
affidavit stating that she was “not . . . notified of the time limits
for contacting an EEO counselor and was not otherwise aware
of those time limits.” Harris Aff. ¶ 2. DOJ replied that Harris
had constructive notice of the time limit, submitting an affidavit
from an EOUSA EEO officer stating that EEO posters
“specifically instruct workers that they must request EEO
counseling within 45 days of an allegedly discriminatory act”
and that the “posters . . . were available for display” when Harris
4
worked at EOUSA in 2002. Milanés Aff. ¶¶ 2–3. Affidavits
from two other EOUSA employees state that “to the best of
[their] knowledge and belief,” the employees “recall[ed] seeing
an EEO poster displayed [in the break room and in the file
room] during the period of time that Carla Harris worked [at
EOUSA in 2002].” Barnes Aff. ¶ 3 (recalling poster in break
room); Noonan Aff. ¶ 3 (recalling poster in file room).
Because the parties submitted evidence outside the
pleadings, the district court treated the motion to dismiss as a
motion for summary judgment. See Harris v. Attorney Gen. of
the United States, 400 F. Supp. 2d 24, 26 (D.D.C. 2005) (citing
FED. R. CIV. P. 12(b)). Granting summary judgment to DOJ, the
court found that “the notice is legally sufficient because the 45-
day time limit is accurately presented on the poster” and that
Harris “had access to the[] rooms [in which the poster was
displayed] throughout her earlier six month employment.” Id.
at 28. As a result, the district court concluded, Harris “failed to
meet her burden of proving reasons that would support an
equitable tolling of the 45-day time limit.” Id. at 28–29.
Harris appeals. We review the district court’s grant of
summary judgment de novo. See Czekalski v. Peters, 475 F.3d
360, 362 (D.C. Cir. 2007). Summary judgment is proper only if,
“view[ing] the evidence in the light most favorable to . . .
[Harris and] draw[ing] all reasonable inferences in her favor,”
there is no genuine dispute over a material issue of fact. Id. at
363; FED. R. CIV. P. 56(c).
II.
We begin by clearing away a couple of preliminary issues.
First, the parties disagree about how subsection (a)(2) interacts
with the more demanding common law standard for equitable
tolling, which is granted only in “extraordinary and carefully
5
circumscribed circumstances.” Smith-Haynie v. District of
Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998) (quoting Mondy
v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)).
Harris argues that subsection (a)(2) represents an independent
basis for tolling. For its part, DOJ, agreeing with the district
court, argues that employees must meet the equitable tolling
standard notwithstanding subsection (a)(2). Given subsection
(a)(2)’s mandatory language—“the agency . . . shall extend the
45-day time limit”—we agree with Harris that the agency must
grant an extension if the employee shows that she “was not
notified” or “otherwise aware” of the time limit. 29 C.F.R. §
1614.105(a)(2) (emphasis added). An employee who makes
such a showing need not separately satisfy the common law
standard for equitable tolling. Cf. Teemac v. Henderson, 298
F.3d 452, 455 (5th Cir. 2002) (holding that under the terms of
subsection (a)(2), “[t]he agency must waive the requirement if
the employee lacked . . . notice of the requirement.”); Pauling v.
Sec’y of the Dep’t of the Interior, 160 F.3d 133, 136–37 (2d Cir.
1998) (recognizing “mandatory” terms of the regulation);
Jakubiak v. Perry, 101 F.3d 23, 27 (4th Cir. 1996) (same).
The parties also debate whether subsection (a)(2)’s
requirement for an extension of time—that a plaintiff show she
“was not notified of the time limits and was not otherwise aware
of them,” 29 C.F.R. § 1614.105(a)(2)—requires actual notice or
whether constructive notice will do. Relying on her affidavit,
Harris argues that because she had no actual knowledge of the
45-day requirement, she was entitled to an extension of time.
DOJ does not challenge Harris’s claim that she lacked actual
notice, arguing instead that the EEO posters gave her
constructive notice. Both parties cite Johnson v. Runyon, 47
F.3d 911 (7th Cir. 1995), which held that “subjective ignorance
alone does not automatically entitle [the plaintiff] to the
exception in [subsection (a)(2)].” Id. at 918. Although we have
yet to address this issue, every circuit to have done so has
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followed the lead of the Seventh Circuit in Johnson, which
declined to adopt a “strict theory of constructive notice” and
instead set out a two-step inquiry: (1) whether “notification of
the time requirements was provided,” and (2) whether the
notification was “reasonably geared to inform the complainant
of the time limits.” Id. (internal quotation marks omitted); see,
e.g., Teemac, 298 F.3d at 456 & n.9; Sizova v. Nat’l Inst. of
Standards & Tech., 282 F.3d 1320, 1327 (10th Cir. 2002);
Jakubiak, 101 F.3d at 27. We think this approach makes sense.
For one thing, subsection (a)(2) itself speaks of notification.
Moreover, it cannot be that an employee claiming to have been
unaware of the 45-day time limit would be automatically
entitled to an extension even though the agency, through posters,
employee handbooks, orientation sessions, etc., made
conscientious efforts to advise its employees of the time limit.
Nonetheless, we cannot say that no reasonable jury, viewing
the evidence in the light most favorable to Harris and drawing
all inferences in her favor, could conclude that she lacked
constructive notice of the 45-day requirement. To begin with,
the posters themselves are not part of the record, and none of the
affidavits includes the posters’ actual language. The affidavits
state only that the posters were directed to “workers.” Milanés
Aff. ¶¶ 2–3; Noonan Aff. ¶ 3. Without the actual text, we have
no way of determining whether the posters were “reasonably
geared” to notify Harris—an independent contractor—that she
was subject to the same 45-day time limit that applies to federal
employees, see, e.g., Sizova, 282 F.3d at 1327 (finding that EEO
posters at National Institute of Standards and Technology
directed to persons “on the job” were not reasonably geared to
notify plaintiff, a university fellow who believed herself to be an
employee of the university, not the Institute), rather than the
longer period of time available to private sector employees, see
42 U.S.C. § 2000e-5(e)(1) (establishing 180-day time limit for
private sector employees); 29 C.F.R. § 1601.13(a)(4)(ii)
7
(establishing 300-day time limit for private sector employees
where the EEOC has a worksharing agreement with a state or
local agency).
In addition to failing to recite the posters’ actual language,
the affidavits are insufficient to determine whether the posters
were displayed in a manner “reasonably geared” to inform
Harris of the time limit. For example, the two affidavits
asserting that EEO posters were displayed at EOUSA when
Harris worked there say only that the posters were displayed in
a break room and file room “available to all employees and
contractors . . . during the period of time that Carla Harris
worked [there].” Barnes Aff. ¶ 3; see also Noonan Aff. ¶ 3. But
the mere fact that these rooms were available to
contractors—absent information such as the placement of the
posters and the number of contractors who entered these rooms,
as well as the frequency with which they did so—tells us
nothing about the likelihood that Harris herself was ever in these
rooms or, if so, whether she should have seen the posters. As
the Seventh Circuit has explained, “[t]he presence or absence of
posted notices does not, standing alone, determine whether the
limitations period should be tolled.” Johnson, 47 F.3d at 918
(internal quotation marks omitted) (quoting Cano v. U.S. Postal
Serv., 755 F.2d 221, 222–23 (1st Cir. 1985)).
All three affidavits, moreover, relate to 2002, when Harris
was employed in a different EOUSA office. Barnes Aff. ¶ 2;
Milanés Aff. ¶ 3; Noonan Aff. ¶ 2. They say nothing about the
presence of posters on May 31, 2003, the day Harris’s new
contract assignment started and the day before she was fired.
Harris’s potential exposure to posters at a different EOUSA
office in a separate contract assignment seven months prior to
her firing is insufficient to eliminate a genuine issue of material
fact regarding her notice of the 45-day requirement.
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Furthermore, we are unsure whether the posters were even
posted during Harris’s previous six-month contract assignment.
Two of the affidavits state, “[t]o the best of my knowledge and
belief, I recall seeing an EEO poster displayed.” Barnes Aff.
¶ 3; Noonan Aff. ¶ 3. Yet we have expressly held that affidavits
based upon belief are inadequate to support a motion for
summary judgment. Londrigan v. FBI, 670 F.2d 1164, 1174
(D.C. Cir. 1981) (“[Rule 56(e)’s] requirement of personal
knowledge by the affiant is unequivocal, and cannot be
circumvented. An affidavit based merely on information and
belief is unacceptable.” (footnotes omitted)). To be sure, the
two affidavits use the word “knowledge,” but they never say that
affiants “saw” the posters. Instead, they say only that, “to the
best of” the affiants’ knowledge, they “recall” seeing them.
This, together with the use of the word “belief,” leaves us
wondering whether the affiants actually saw the EEO posters.
DOJ’s third affidavit, from an EEO officer, is equally
ambiguous as to whether the posters were actually displayed.
The affidavit states only that EEO posters were “available for
display by EOUSA offices in 2002.” Milanés Aff. ¶ 3
(emphasis added). It never says that posters were in fact
displayed, much less that they were displayed in a location
“reasonably geared” to notify Harris.
We reverse the district court’s grant of summary judgment
and remand for further proceedings consistent with this opinion.
So ordered.