Vázquez-Rivera v. Figueroa

• Decision Date: 15 July 2014
• Docket Number: No. 12–2439.,12–2439.
• Citation: 759 F.3d 44
• Parties: ´Angel A. VÁZQUEZ–RIVERA, Plaintiff, Appellant, v. Magda FIGUEROA; Nannette López–Silva; Department of Justice; United States of America; John D. Cushman; Gunnar G.F. Pedersen; José L. Ortega; U.S. Army; Conjugal Partnership Ortega–López, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

759 F.3d 44

´Angel A. VÁZQUEZ–RIVERA, Plaintiff, Appellant,

v.Magda FIGUEROA; Nannette López–Silva; Department of Justice; United States of America; John D. Cushman; Gunnar G.F. Pedersen; José L. Ortega; U.S. Army; Conjugal Partnership Ortega–López, Defendants, Appellees.

No. 12–2439.

United States Court of Appeals,First Circuit.

July 15, 2014.

Carlos R. Rodríquez–García, with whom Rodríquez–García, P.S.C., was on brief for appellant.

Ginette L. Milanés, with whom Rosa Emilia Rodríquez–Vélez, United States Attorney, Nelson Pérez–Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes–Ramos, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff–Appellant Ángel Vázquez–Rivera (“Vázquez”) filed a complaint alleging that his employer, the U.S. Army, discriminated against him on account of his disability, created a hostile work environment, and retaliated against him, all in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the “Rehabilitation Act”). The district court found that Vázquez was required to exhaust his administrativeremedies before he could initiate a civil suit, and as Vázquez had not timely filed his administrative claim, the district court dismissed the complaint. Vázquez now argues that the district court erred in finding that his administrative complaint was untimely and, alternatively, that the court erred in finding that he was not entitled to equitable tolling. As both of Vázquez's claims are without merit, we affirm.

I. Background

Vázquez, an Operations Specialist in the U.S. Army, contacted an Equal Employment Opportunity (“EEO”) counselor on May 12, 2010. Citing a number of incidents that occurred between October 2009 and January 2010, Vázquez alleged that his direct supervisor harassed and discriminated against him on the basis of an unspecified disability. On July 9, 2010, Vázquez received from the Army a hand-delivered notice of right to file a formal complaint (“NORF”). The NORF informed Vázquez in bold, underlined text of his right to file a discrimination complaint within fifteen calendar days of his receipt of the NORF.

Vázquez's fifteen days elapsed on Saturday, July 24, 2010. His fifteen-day filing window was thus automatically extended to the next business day: Monday, July 26, 2010. See29 C.F.R. § 1614.604(d). Vázquez, however, did not file his complaint until Tuesday, July 27, 2010. The Army cited Vázquez's failure to file within fifteen days and dismissed the complaint as untimely pursuant to 29 C.F.R. § 1614.107(a)(2). The Equal Employment Opportunity Commission (“EEOC”) agreed, and on February 2, 2011, it affirmed the dismissal for untimely filing.

On April 15, 2011, Vázquez initiated the present suit by filing a complaint with the district court. The complaint asserted eight causes of action arising under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., Puerto Rico law, the Puerto Rico Constitution, and the U.S. Constitution. He also identified numerous defendants, including, as is pertinent here, the U.S. Army as represented by the Secretary of the Army, John McHugh, in his official capacity.

The defendants filed a motion to dismiss the complaint on November 4, 2011, arguing that the district court lacked in personam jurisdiction due to improper service and that Vázquez failed to state a claim because he had failed to exhaust his administrative remedies. Vázquez voluntarily withdrew his claims against all defendants except the Secretary of the Army, and on June 26, 2012, the district court dismissed Vázquez's claims under the ADEA, Puerto Rico law, and the constitutions of Puerto Rico and the United States. This left only Vázquez's claims of discrimination, hostile work environment, and retaliation under the ADA. The district court construed these remaining claims as claims brought pursuant to the Rehabilitation Act, which covers federal employees, rather than the ADA, which does not.

After considering additional argument, the district court issued a second opinion on October 12, 2012, ordering that Vázquez's Rehabilitation Act claims be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The court found that Vázquez had failed to exhaust his administrative remedies and did not qualify for equitable tolling. This timely appeal followed.

II. Discussion

At issue in this appeal are Vázquez's Rehabilitation Act claims against the Army. Although his notice of appeal signaled his intent to challenge both orders of the district court and the dismissal of all claims, his brief argues only that the district court erroneously dismissed his Rehabilitation Act claims. We therefore limit our review to the district court's dismissal of Vázquez's Rehabilitation Act claims, deeming any argument as to Vázquez's other claims waived. See United States v. Dávila–Félix, 667 F.3d 47, 51 n. 5 (1st Cir.2011) (reiterating that arguments not made in a party's opening brief are deemed waived).¹

Before we consider Vázquez's arguments on their merits, however, we pause to review the applicable regulations concerning a federal employee's claims under the Rehabilitation Act. The Rehabilitation Act forbids discrimination on the basis of disability against otherwise qualified individuals working for an executive agency or a program receiving federal funds. See29 U.S.C. §§ 791, 794. To enforce this prohibition, the Rehabilitation Act provides for administrative and judicial recourse for federal employees who filed a complaint of disability-based employment discrimination and were aggrieved by either the final disposition of their complaint or the failure to take final action. Id. § 794a(a).

Rather than establish its own procedures for claims of discrimination brought under section 791, the Rehabilitation Act expressly incorporates the procedures set forth in sections 717 and 706(f)-(k) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Id. And while section 717 of Title VII does not itself establish applicable procedures or time limits for filing an administrative complaint, it does authorize the EEOC to issue rules and regulations to that end. See42 U.S.C. § 2000e–16(b). The EEOC, in turn, has issued 29 C.F.R. § 1614.106(b), which provides that an administrative complaint of discrimination “must be filed within 15 days of receipt” of a NORF. EEOC regulations further provide that “the agency shall dismiss an entire complaint” if it “fails to comply with applicable time limits,” including the fifteen-day window established by § 1614.106. 29 C.F.R. § 1614.107.

Moving from the administrative realm to the judicial, section 717(c) of Title VII authorizes an aggrieved employee to file a civil action against the head of the department or agency that discriminated against him within ninety days of receipt of notice of final action on his complaint. 42 U.S.C. § 2000e–16(c). As a prerequisite, however, “a federal employee must first have exhausted the administrative remedies provided.” Roman–Martinez v. Runyon, 100 F.3d 213, 216 (1st Cir.1996) (citing Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)).² This exhaustion requirementis no small matter; it “is a condition to the waiver of sovereign immunity” and thus “must be strictly construed.” Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Exhaustion in the Title VII context “has two key components: the timely filing of a charge with the EEOC and the receipt of a right-to-sue letter from the agency.” Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir.2005).

With this legal landscape in mind, we now turn to consider Vázquez's argument that his complaint should not have been dismissed for failure to exhaust administrative remedies. Challenging the district court's finding that his administrative complaint was untimely filed, Vázquez claims that he timely filed his complaint or, alternatively, that the district court erred by finding that he was not entitled to equitable tolling.

Although we review the district court's dismissal of Vázquez's complaint de novo, Ramos–Piñero v. Puerto Rico, 453 F.3d 48, 51 (1st Cir.2006), we review the court's denial of equitable tolling for abuse of discretion, Farris v. Shinseki, 660 F.3d 557, 562 (1st Cir.2011).

A. Timely Filing

Vázquez's first argument is that the district court erred in finding that he failed to file his administrative complaint within the allotted time period. He does not dispute the fact that he received the NORF on July 9, 2010, or that he filed his complaint on July 27, 2010. Neither does he contest the fact that the fifteen-day period beginning on July 9 elapsed on July 26, 2010. Rather, Vázquez argues that, in accordance with the Federal Rules of Civil Procedure, he ought to have received a three-day extension of the fifteen-day filing deadline, thereby making his filing on July 27 timely. He specifically relies on Rule 6(d), which provides that “[w]hen a party may or must act within a specified time after service,” and when service is effected by mail or other specified means, “3 days are added after the period would otherwise expire under Rule 6(a).” Fed.R.Civ.P. 6(d). Because he received the NORF by mail, Vázquez reasons, Rule 6(d) should have provided him with an additional three days to file his complaint, thereby making his filing timely.

Whatever the creative value of Vázquez's three-day extension argument, it is sorely lacking in merit. As an initial matter, Vázquez failed to make any argument to the district court about the possibility of Rule 6(d) extending the fifteen-day period. Accordingly, the argument is waived and we will not entertain it on appeal. See Anderson v. Hannaford Bros. Co., 659...