UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-50436
Summary Calendar
BETTY MARIE DUSING,
Plaintiff-Appellant,
VERSUS
TOGO D. WEST, in his official capacity as
United States Secretary of the Army,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of El Paso
(U.S.D.C. NO. EP-92-CV-21)
March 21, 1996
Before REAVLEY, DUHÉ, AND WIENER, Circuit Judges.
PER CURIAM:*
John D. Addis (deceased) filed this complaint based on
handicap discrimination under the Rehabilitation Act, 29 U.S.C.
§ 791, et seq., and the Civil Rights Act of 1991, 42 U.S.C.
§ 1981a. After Addis’ death, Betty Marie Dusing, as executor of
his estate, was substituted as plaintiff.
Addis initially filed an Equal Employment Opportunity (“EEO”)
* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
complaint alleging he was forced to seek disability retirement
after twenty-three years as a civilian employee of the Army due to
exacerbation of cancer caused by a hostile work environment. Addis
asserted that, although his supervisors were aware of his worsening
physical condition, they continuously harassed him and refused to
accommodate his illness. Addis’ EEO complaint was first rejected
as untimely by the Army, but on appeal, the EEOC found that Addis
should be excused from the filing deadlines. After a full
investigation, the complaint was again rejected by the Army and the
EEOC.
The district court dismissed the complaint because Addis’
original EEO complaint was filed untimely, and held no defense such
as waiver, estoppel or equitable tolling was present. Dusing does
not complain of the district court’s alternative ruling dismissing
her civil rights complaint because the acts of which Addis had
complained were committed prior to the effective date of the Civil
Rights Act of 1991.
Addis was required to file his EEO complaint within the
prescribed time limits of 29 C.F.R. § (a)(i) & (ii). Since Addis’
complaint was not brought to the attention of an EEO counselor
until approximately six months after his retirement from government
employment, the district court reasoned the complaint was untimely,
relying upon Pacheco v. Rice.1
We disagree. In Pacheco the plaintiff waited three years to
file his complaint, which was held untimely because he had no
1
Pacheco v. Rice, 966 F.2d 904 (5th Cir. 1992).
2
excuse for not filing a complaint and initiating an investigation
within the prescribed time frame of 29 C.F.R. § (a)(i). The facts
of the instant case are more analagous to those of Oaxaca v.
Roscoe2, in which the plaintiff alleged he had no way of knowing he
had been subjected to discrimination until after the time limits
for filing a complaint had passed, but acted promptly when the
alleged wrongful act was discovered, and otherwise complied with
the statutory and regulatory procedures.3 Since Oaxaca had never
been notified of the filing deadlines, this court held he should be
given an opportunity to establish facts that would entitle him to
an equitable tolling or delay in the commencement of the thirty-day
time period under 29 C.F.R. § 1614.214(a)(4), which requires an
agency to extend the time limits under certain circumstances.4
The record reflects that Addis contended from the very
beginning that he did not know he had a disability discrimination
claim, and he was never so informed by either Army or civilian
personnel despite complaining of his supervisors’ harassment to
civilian personnel and the inspector general. He argues he was
entitled to an extension of the time limits under § 1614.214(a)(4).
Addis otherwise complied with all statutory and regulatory
procedures. Addis did plead grounds warranting equitable tolling,
and the district court should proceed as was set forth in Oaxaxa.
2
Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981). See also
Henderson v. United States Veterans Admin., 790 F.2d 436 (5th Cir.
1986).
3
Oaxaca, 641 F.2d at 389.
4
Id. at 391.
3
VACATED AND REMANDED.
4