FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Oct. 14, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11949

Non-Argument Calendar

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D. C. Docket No. 08-00461-CV-W-E

HENRY A. GAILLARD,

Plaintiff-Appellant,

versus

ERIC SHINSEKI,

Secretary, Department of Veterans Affairs,

Defendant-Appellee.

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Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(October 14, 2009)

Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Henry Gaillard appeals, pro se, from the district court’s grant of summary

judgment in favor of Eric Shinseki, Secretary of the Department of Veterans
Affairs, in his employment discrimination suit under the Rehabilitation Act of

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1973, 29 U.S.C. § 794. Gaillard was terminated from his employment on March

29, 2004, contacted an Equal Employment Opportunity (“EEO”) Counselor on

July 12, 2005, and filed a formal complaint of employment discrimination with an

EEO representative on September 6, 2005. Gaillard admitted that he recalled

seeing information posters at work that identified how to file a complaint with the

EEO. On appeal, Gaillard argues that even if he failed to contact an EEO

Counselor within 45 days of the termination of his employment or any underlying

act of discrimination, it was because he was unaware of the time limit or

procedures for filing an EEO complaint. After thorough review, we affirm.

We review a district court’s grant of summary judgment de novo, viewing

all facts and reasonable inferences in the light most favorable to the non-moving

party. Strickland v. Water Works & Sewer Bd. of the City of Birmingham, 239

F.3d 1199, 1203 (11th Cir. 2001). Summary judgment is appropriate when there is

no genuine issue as to any material fact and the moving party is entitled to a

judgment as a matter of law. See Fed.R.Civ.P. 56(c).

 Eric K. Shinseki was sworn in as Secretary of the Department of Veterans Affairs on 1

January 21, 2009. Shinseki later substituted for R. James Nicholson as the defendant-appellee

under Fed. R. App. P. 43(c)(2). The Secretary of the Department of Veterans Affairs is

hereinafter referred to as “the VA.”

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The Rehabilitation Act prohibits federal agencies from discriminating in

employment against qualified individuals with disabilities. See Ellis v. England,

432 F.3d 1321, 1326 (11th Cir. 2005); see also 29 U.S.C. § 794(a). A plaintiff

asserting a private right of action under the Rehabilitation Act must satisfy the

exhaustion of administrative remedies requirement in the manner prescribed by

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-5, 16, 29 U.S.C. §

794a; Doe v. Garrett, 903 F.2d 1455, 1459-60 (11th Cir. 1990). In this regard, the

aggrieved federal employee “must initiate contact with a Counselor within 45 days

of the date of the matter alleged to be discriminatory or, in the case of personnel

action, within 45 days of the effective date of the action.” 29 C.F.R. §

1614.105(a)(1). “Generally, when the claimant does not initiate contact within the

45-day charging period, the claim is barred for failure to exhaust administrative

remedies.” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). If the

employee shows that he was not notified or otherwise aware of the time limits,

then he may seek an extension of the 45 day period. 29 C.F.R. § 1614.105(a)(2).

The Supreme Court has held that “filing a timely charge of discrimination with the

EEOC is not a jurisdictional prerequisite to suit in federal court, but a prerequisite

that, like a statute of limitations, is subject to waiver, estoppel, and equitable

tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

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On the record here, the district court did not err in granting summary

judgment to the VA on the basis that Gaillard failed to exhaust his administrative

remedies under the Rehabilitation Act. The record indicates that Gaillard’s

employment was terminated on March 29, 2004, and this was therefore the last

possible date when the allegedly discriminatory action could have occurred.

Gaillard did not contact an EEO Counselor until July 12, 2005, which was over 15

months after the termination of his employment. Gaillard therefore failed to

initiate contact with an EEO Counselor “within 45 days of the date of the matter

alleged to be discriminatory” under 29 C.F.R. § 1614.105(a)(1).

The record also indicates that Gaillard recalled seeing an EEO poster on the

bulletin board at his place of employment that provided the time limits for

contacting an EEO Counselor. Gaillard, however, provided no evidence showing

that he did not have constructive notice, given that he recalled seeing the EEO

information posters at work. Thus, Gaillard failed to exhaust his administrative

remedies under the Rehabilitation Act and, without an excuse for failing to contact

an EEO Counselor within 45 days, is now time-barred from so doing.

Accordingly, the district court did not err in granting summary judgment to the VA

on Gaillard’s disability discrimination claims.

AFFIRMED.

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