NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 31, 2016 *
Decided November 1, 2016
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-2058
THOMAS M. MCCARTHY, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 15-cv-312-bbc
THOMAS J. VILSACK, Secretary, Barbara B. Crabb,
United States Department of Agriculture, Judge.
Defendant-Appellee.
ORDER
Two years after he was not interviewed for two positions with the U.S.
Department of Agriculture, Thomas McCarthy brought this employment-discrimination
suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the
Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634. The district court granted
summary judgment for the government after concluding that McCarthy had not
contacted an equal employment opportunity counselor with the agency in a timely
*
We have unanimously agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16-2058 Page 2
manner—a prerequisite for filing suit—and that equitable tolling was not warranted. We
affirm.
McCarthy, a former USDA employee who had retired in 2006, applied in 2011 for
two loan-specialist positions (in Wisconsin and Minnesota) that would have allowed
him to rejoin the department’s Office of Rural Development. Despite receiving emails
that he was among the “best qualified” applicants and had been “referred” to
interviewing officials, he was not offered an interview for either job. In late June 2011, he
was notified that the jobs had been filled.
According to McCarthy, he did not suspect at that time that he had been subjected
to discrimination, but his view changed in July 2013, when he came across the old emails
acknowledging his “best qualified” status. He alleged that he then learned that his
application may have been undermined by a former supervisor from his previous job
with the USDA in Wisconsin (and with whom he had clashed, leading to his 2006
retirement). McCarthy says that this supervisor was working in 2011 at the USDA office
in Minnesota where he had applied, and he believed that this supervisor must have
influenced the decisions not to interview him for the Minnesota and Wisconsin
positions.
McCarthy contacted an equal employment opportunity counselor in September
2013 and complained that the decisions not to interview him in 2011 were based on his
race and sex (as a white male), his age (62 at the time), and past complaints that he had
brought when he used to work with the agency. The USDA denied McCarthy’s EEO
complaint after concluding that he had failed to initiate contact with an EEO counselor
within 45 days of the alleged discriminatory action, as required under 29 C.F.R.
§ 1614.105(a)(1), and that there were no circumstances justifying an extension of that
time limit.
McCarthy then brought this suit, but the district court granted summary
judgment for the government after concluding that his attempt to exhaust his
administrative remedies was untimely. The court considered whether this 45-day time
limit should be equitably tolled based on McCarthy’s assertion that he did not learn
about the alleged discrimination until 2013, but it concluded that McCarthy had not
shown that he was diligent in investigating a potential claim of discrimination. He did
not describe any actions he took before 2013 to look into a possible claim, nor did he
allege that any of the purportedly relevant information about the former supervisor’s
employment in 2011 was not public or could not have been uncovered earlier. Nor did
he suggest how the supervisor’s employment with the Minnesota office was relevant,
No. 16-2058 Page 3
since McCarthy offered no reason to believe that the former supervisor was even
involved in hiring for either of the two open positions.
On appeal McCarthy generally challenges the district court’s decision not to
equitably toll the 45-day time limit to contact an EEO counselor about alleged
discrimination. He disputes the court’s conclusion that he did not investigate his claim
with due diligence because it did not occur to him until seeing the old emails in 2013 that
his former supervisor may have discouraged the USDA offices from interviewing him.
The 45-day time limit under 29 C.F.R. § 1614.105(a)(1) is not a jurisdictional
prerequisite and may be equitably tolled, see Lapka v. Chertoff, 517 F.3d 974, 981 (7th Cir.
2008), but the district court properly concluded that McCarthy did not demonstrate due
diligence. Equitable tolling applies “when the plaintiff, exercising due diligence, was
unable to discover evidence vital to a claim until after the statute of limitations expired.”
Sidney Hillman Health Ctr. of Rochester v. Abbott Labs., Inc., 782 F.3d 922, 931 (7th Cir. 2015)
(quoting Moultrie v. Penn Aluminum Int’l, LLC, 766 F.3d 747, 752 (7th Cir. 2014)). As the
district court explained, McCarthy did not describe taking any steps to uncover evidence
of discrimination upon not being interviewed in 2011 or explain why reasonable
diligence would not sooner have turned up information about his former supervisor’s
employment. Nor did McCarthy identify any evidence to support his theory that the
supervisor played a role in the hiring process for the two positions. Indeed, evidence in
the record shows that the supervisor actually applied at the same time as McCarthy for
the Wisconsin position and had never even worked at the Minnesota office.
AFFIRMED.