Fortune v. Holder
767 F. Supp. 2d 116
D.D.C.2011Background
- Fortune, a former FBI employee, sues under Title VII and the Rehabilitation Act alleging disability discrimination culminating in his 2008 termination.
- Plaintiff attributes his discharge to disabilities from sleep apnea, narcolepsy, lymphedema, and related conditions, causing sleepiness on duty and leave use.
- He filed an informal EEO counseling request and formal complaint; the FBI deemed his complaint untimely under the 45-day filing rule.
- Final FBI determination (Feb. 22, 2010) held the 45-day period ran from the termination date and that Fortune failed to timely contact an EEO counselor.
- Fortune filed suit May 13, 2010 seeking declaratory relief, reinstatement, leave restoration, damages, and costs; defendant moved to dismiss or for summary judgment for failure to exhaust.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fortune exhausted administrative remedies. | Fortune argues equitable tolling due to late discovery of discrimination. | Fortune failed to contact an EEO counselor within 45 days of termination; no tolling shown. | Untimely; exhaustion not shown. |
| When the discrimination claim accrued and thus when the 45-day clock began. | Argues accrual delayed until discovering discriminatory motive. | Accrual occurred at termination; timely EEO contact required within 45 days. | Accrual at termination; no tolling. |
Key Cases Cited
- Bowden v. United States, 106 F.3d 433 (D.C.Cir. 1997) (administrative time limits are subject to equitable tolling)
- National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (Supreme Court 2002) (discrete discriminatory acts; accrual mechanics)
- Perry v. U.S. Department of State, 669 F. Supp. 2d 60 (D.D.C. 2009) (regulatory time limits and exhaustion implications)
- Brown v. Marsh, 777 F.2d 8 (D.C. Cir. 1985) (exhaustion principles for Title VII actions)