Unpublished Disposition, 878 F.2d 385 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1985)

Margo DONOGHUE, Plaintiff-Appellant,v.Henry DICKENSON; Paul Danville, Defendants-Appellees.

No. 87-2299.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 25, 1989.Decided June 22, 1989.

Before PREGERSON, O'SCANNLAIN and TROTT, Circuit Judges.


MEMORANDUM** 

Margo Donoghue appeals pro se from the district court's dismissal of her Title VII employment discrimination action for failure to exhaust administrative remedies. Donoghue contends that she was discriminated against at the Veterans' Administration ("VA") Medical Center in Livermore, California on the basis of gender.

A dismissal on statute of limitations grounds presents a question of law reviewed de novo. Donoghue v. County of Orange, 848 F.2d 926, 929 (9th Cir. 1987).

DISCUSSION

A federal employee may file an action for employment discrimination under 42 U.S.C. section 2000e-16 (1982). Ross v. United States Postal Serv., 696 F.2d 720, 722 (9th Cir. 1983) (per curiam). The statute requires, however, that a complainant first seek relief from the agency that allegedly perpetrated the discrimination. Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976); Ross, 696 F.2d at 722. The first step an employee aggrieved by an alleged discriminatory act must take is to seek counseling from an Equal Employment Opportunity ("EEO") counselor within 30 days. Cosgrove v. Bolger, 775 F.2d 1078, 1080 (9th Cir. 1985); 29 C.F.R. Sec. 1613.214(a) (1) (i) (1988).

The most recent act of which Donghue complains is the VA's termination of her employment, which occurred on August 31, 1984. Donoghue did not bring her firing to the attention of an EEO counselor, however, until August 12, 1985, almost a year later. Thus, Donoghue clearly failed to comply with the 30-day requirement set forth in the regulation.

But the 30-day deadline is not a jurisdictional prerequisite to suit in federal court and, like a statute of limitations, may be extended under theories of waiver, estoppel or equitable tolling. Zipes v. Trans World Airlines,, 455 U.S. 385, 393 (1982); Cosgrove, 775 F.2d at 1080.

Donoghue contends that her failure to contact an EEO counselor within the 30-day time limit should be excused and the time limit equitably tolled. In support of this contention, she claims that shortly after her firing she went to see an EEO counselor who told her to go home, think over her decision on whether to file a claim, and make a later appointment. She states that two days later she made an appointment to see an EEO counselor. Donoghue claims that when she showed up for the appointment, it was canceled because the counselor had to go somewhere. Donoghue further claims that she made two additional appointments with EEO counselors, both of which were cancelled because the counselors were unavailable. Donoghue asserts that at this point, she thought her time for filing a claim had expired and it was not until almost one year later that she discovered that she thought she could still file her claim.

But Donoghue fails to set forth the date she claims she first consulted an EEO counselor, and the dates for which she made appointments to see counselors, but which she claims were canceled. As the district court correctly noted, it therefore is impossible to determine whether even Donoghue's initial attempt to see an EEO counselor was timely. In addition, because Donoghue initially thought her claim was time-barred, she evidently was aware at least that she was required to file her claim within a specified period of time. See Cooper v. Bell, 628 F.2d 1208, 1212 (9th Cir. 1980) (failure to comply may be excused if plaintiff had neither official notice nor actual knowledge of filing period). No evidence exists suggesting that Donoghue relied upon any misrepresentations regarding her right to file a discrimination claim. See id. at 1214 (reliance upon a misrepresentation of federal employee which results in the failure to file a timely discrimination charge states a claim for extension of filing period on equitable grounds). Donoghue does not allege that she was affirmatively misled by any VA official regarding the time within which to see an EEO counselor, nor does it appear that Donoghue was unaware of the appropriate administrative procedures. See Boyd v. United States Postal Serv., 752 F.2d 410, 414-15 (9th Cir. 1984). Nor was Donoghue unaware that she might have been the object of discriminatory conduct. See NLRB v. Don Burgess Constr. Corp., 596 F.2d 378, 382-83 (9th Cir.), cert. denied, 444 U.S. 940 (1979) (fraudulent concealment tolls a statute of limitations); cf. United States v. Kubrick, 444 U.S. 111. 122 (1979) (mere ignorance of one's legal rights does not justify extension of a filing period).

The district court correctly determined that the 30-day time period for informing an EEO counselor of the alleged act of employment discrimination should not be equitably tolled. As a result, Donoghue is precluded from pursuing her claim in federal court. See Boyd, 752 F.2d at 414-15.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3