United States Court of Appeals

For the First Circuit

No. 13-1379

TRACY BARTLETT,

Plaintiff, Appellant,

v.

DEPARTMENT OF THE TREASURY (INTERNAL REVENUE SERVICE),

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Ripple* and Thompson, 

Circuit Judges.

Thomas J. Gleason, with whom Gleason Law Offices, P.C., was on

brief for appellant. 

Christine J. Wichers, Assistant United States Attorney, with

whom Carmen M. Ortiz, United States Attorney, was on brief for

appellee.

April 4, 2014

*

 Of the Seventh Circuit, sitting by designation.
RIPPLE, Circuit Judge. Tracy Bartlett filed a one-count

complaint against her former employer, the Internal Revenue Service

(“IRS”), in which she alleged that she had been constructively

discharged in violation of the Rehabilitation Act, 29 U.S.C. § 701

et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq. The IRS moved to dismiss the complaint on the

ground that Ms. Bartlett had not lodged her administrative

complaint within forty-five days of the incident, as dictated by

regulation. Ms. Bartlett urged, however, that the doctrine of

equitable tolling applied because she was not apprised of the

regulatory deadline and because she was suffering from a mental

illness. The parties briefed the motion and also submitted

additional documentation in support of their respective positions. 

The district court granted the IRS’s motion to dismiss, and

Ms. Bartlett timely appealed. Because Ms. Bartlett has not

demonstrated that her circumstances warrant equitable tolling, we

affirm the judgment of the district court.

I

BACKGROUND

Ms. Bartlett was a long-time employee of the IRS who, in

2009, was absent periodically from work due to her diagnosis with,

-2-
and treatment for, severe depression.1 On April 22, 2010,

Ms. Bartlett was separated from her employment as a result of her

inability to return to the workplace.

Following her separation from the IRS, Ms. Bartlett filed

a one-count complaint in district court, in which she alleged that

she had been constructively discharged on account of her disability

in violation of the Rehabilitation Act and the ADA. The IRS

responded by filing a motion to dismiss on the ground that

Ms. Bartlett had failed to contact an Equal Employment Opportunity

(“EEO”) Counselor within forty-five days of her allegedly

discriminatory separation, as required by 29 C.F.R. § 1614.105(a)

(2013).2

 In its motion, the IRS also noted that, although the

1

 Because Ms. Bartlett’s action was decided on a motion to

dismiss, “we accept as true all well-pleaded facts alleged in the

complaint and draw all reasonable inferences therefrom in the

pleader’s favor.” Santiago v. Puerto Rico, 655 F.3d 61, 72 (1st

Cir. 2011).

2

 29 C.F.R. § 1614.105(a) (2013) provides:

(a) Aggrieved persons who believe they

have been discriminated against on the basis

of race, color, religion, sex, national

origin, age, disability, or genetic

information must consult a Counselor prior to

filing a complaint in order to try to

informally resolve the matter.

(1) An aggrieved person 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.

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forty-five-day time limit was subject to equitable tolling, in

order “‘[t]o qualify for [equitable tolling], a complainant must

allege and prove, at the least, not only that he had no reason to

be aware of his employer’s improper motivation when the putative

violation occurred, but also that the employer actively misled him

and that he relied on the (mis)conduct to his detriment.’”3 The

IRS claimed that, “[i]n light of Plaintiff’s letter dated April 9,

2010 -- before her separation -- in which she accused management of

creating a hostile work environment, Plaintiff cannot show that she

was unaware of the IRS’s alleged improper motivation.”4 The IRS

attached to its motion the April 9 letter from Ms. Bartlett, as

well as other documentation.

(2) The agency or the Commission

shall extend the 45–day time limit in

paragraph (a)(1) of this section when the

individual shows that he or she was not

notified of the time limits and was not

otherwise aware of them, that he or she

did not know and reasonably should not

have been [sic] known that the

discriminatory matter or personnel action

occurred, that despite due diligence he

or she was prevented by circumstances

beyond his or her control from contacting

the counselor within the time limits, or

for other reasons considered sufficient

by the agency or the Commission. 

3 R.9 at 3 (second alteration in original) (quoting Jensen v.

Frank, 912 F.2d 517, 521 (1st Cir. 1990)).

4

 Id. at 3-4 (referencing R.9-1 at 4-5).

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Ms. Bartlett filed an opposition to the motion to

dismiss. In it, she noted that, “[p]rior to her separation from

employment, [she] had sought to address the issue of what she

perceived as [the] failure of the defendant to grant employment

related benefits as it related to her medical condition.”5 She

continued: “On October 8, 2010[,] the plaintiff, through counsel,

sent correspondence to the EEOC claiming the defendant had

discriminated against her on the basis of her handicap.”6

Ms. Bartlett argued that a court may waive or extend “time limits

for equitable reasons when a person is prevented from timely filing

because of illness or in other appropriate circumstances.”7 She

claimed that such circumstances were present in her case because:

(1) prior to her departure from the IRS, she had notified the IRS

“of the specifics of the dispute from her perspective”;8 (2) the

documents submitted in opposition to the motion, which set forth

her diagnosis with, and hospitalization for, severe depression,

“clearly established that [she] was significantly impaired by a

mental health issue during the relevant time period”;9 and (3) “she

was never notified of a 45 day time limit for commencing her

5

 R.12 at 1.

6 Id. at 2. 

7

 Id. 

8

 Id. at 3.

9

 Id. at 4.

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claim.”10 Attached to her opposition were several exhibits,

including an affidavit in which she stated that “[n]o one from the

defendant ever informed me that I only had forty-five (45) days to

file an employment discrimination claim,”11 and other documents

demonstrating that she had informed the IRS of the nature of her

complaint and that she had been undergoing treatment for

depression.12

With the court’s permission, the IRS filed a reply brief

in support of its motion to dismiss. It noted first that

[a] mental disability may serve as the basis

for equitable tolling only if the plaintiff

was “‘[un]able to engage in rational thought

and deliberate decision making sufficient to

pursue [her] claim alone or through counsel.’” 

Meléndez-Arroyo v. Cutler-Hammer de P.R. Co., 

273 F.3d 30, 37 (1st Cir. 2001) (alterations

by the First Circuit) (quoting Nunnally v.

MacCausland, 996 F.2d 1, 5 (1st Cir. 1993)).[13]

According to the IRS, the correspondence that Ms. Bartlett had

attached to her opposition clearly established that, at least as of

two weeks prior to her separation, “she was mentally competent; she

could read; she could write (indeed, quite eloquently); and she was

10 Id.

11 R.12-1 at 2.

12 In her opposition, Ms. Bartlett also argued that she had

“put the defendant on notice of the nature and substance of the

dispute” before the filing deadline had passed. R.12 at 3-4. She

does argue on appeal that these actions rendered her complaint

timely.

13 R.19 at 2 (second and third alterations in original).

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able to understand what had happened and the consequences of her

decision.”14 The IRS also addressed Ms. Bartlett’s claim that “she

was unaware of the 45-day deadline.”15 It stated: “The declaration

of Damaris Ouellette attached hereto as Exhibit A, however,

establishes that notices of the deadline were posted in Plaintiff’s

office since before 2010. Therefore, Plaintiff had constructive,

if not actual, notice of the 45-day requirement.”16 Finally, the

IRS argued that, although it was aware, prior to her departure,

that Ms. Bartlett believed that she had been the victim of

discrimination, it had not been advised within the forty-five-day

window, as required by regulation, that she was going to pursue

legal remedies.

In an order issued on February 4, 2013, the district

court granted the IRS’s motion to dismiss. The court observed that

Ms. Bartlett had “admit[ted] that she failed to contact an EEO

counselor within the mandated 45 days,” and, therefore, her claim

was barred unless equitable tolling applied.17 The court then

evaluated the four grounds on which Ms. Bartlett had argued that

the limitations period applicable to her claim should be equitably

tolled. First, the court noted that Ms. Bartlett had not alleged

14 Id.

15 Id. at 4.

16 Id.

17 R.25 at 3.

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facts “show[ing] that her mental illness was so severe that she was

unable to engage in the rational thought process and deliberate

decision making necessary to pursue legal remedies in a timely

fashion.”18 Additionally, the district court rejected Ms.

Bartlett’s contention that the time should be tolled because the

IRS failed to inform her of the forty-five-day contact period. The

court observed that Ms. Bartlett had not pointed to affirmative

misconduct on behalf of the IRS, nor had she alleged that the IRS

failed to post the required EEO information--actions that might

have warranted equitable tolling. Finally, the court held that the

fact that the IRS was on notice of her potential claims did not

toll the statute of limitations: “Counsel cites no authority to

suggest that the 45-day contact period is excused when defendant is

previously put on notice of the nature of an employee’s claim.”19

Because Ms. Bartlett had not demonstrated that equitable

tolling of the administrative filing requirement was warranted, the

district court dismissed Ms. Bartlett’s complaint. Ms. Bartlett

timely appealed.

18 Id. at 4.

19 Id. at 5.

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II

DISCUSSION

A. Requirement of Administrative Exhaustion

Before we turn to the outcome-determinative question--

whether the district court properly dismissed Ms. Bartlett’s action

on the ground that the forty-five-day limitation set by regulation

for commencing administrative review of her claim was not tolled--

we must place that question in proper analytical and practical

context by addressing an antecedent issue: whether Ms. Bartlett was

required to exhaust administrative remedies prior to filing an

action under the Rehabilitation Act.20 This question is

“antecedent” to the tolling issue because the tolling of an

administrative filing requirement only becomes an issue if the

plaintiff must exhaust administrative remedies before proceeding

20 Ms. Bartlett alleged in her complaint that the IRS’s

actions violated the Rehabilitation Act and the ADA. See R.1 at 2

(“The acts and omissions of the defendant as described above[]

constitute discrimination on the basis of handicap, in violation of

29 U.S.C. Section 701, et seq. and 42 U.S.C. Section 12101, et

seq.”). However, the United States is explicitly excluded from the

ADA’s definition of “employer,” 42 U.S.C. § 12111(5)(B)(i), and,

consequently, as a federal employee, Ms. Bartlett only may proceed

under the Rehabilitation Act. See Field v. Napolitano, 663 F.3d

505, 510 n.6 (1st Cir. 2011).

-9-
with a Rehabilitation Act claim.21 This fundamental issue remains

an open question in this circuit.

Whether, or, more appropriately, under what circumstances, a

plaintiff must exhaust administrative remedies before filing an

action under the Rehabilitation Act presents a statutory

interpretation question that is grounded in the manner in which

Congress provided for a private cause of action under the

Rehabilitation Act. The Rehabilitation Act was enacted in 1973,

and among its original provisions was a requirement that federal

agencies adopt affirmative action plans for handicapped

individuals. 29 U.S.C. § 791(b) (often referred to in the case law

as section 501 of the Rehabilitation Act).22 Another provision,

21 Indeed, we have previously determined that, where the

requirement applies, “a plaintiff’s unexcused failure to exhaust

administrative remedies effectively bars the courthouse door.”

Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005). One of

exhaustion’s “key components”--and the one with which we must

ultimately grapple--is “timely” compliance with procedural

requirements. See id.

22 29 U.S.C. § 791(b) provides:

(b) Federal agencies; affirmative action

program plans

Each department, agency, and

instrumentality (including the United States

Postal Service and the Postal Regulatory

Commission) in the executive branch and the

Smithsonian Institution shall, within one

hundred and eighty days after September 26,

1973, submit to the Commission and to the

Committee an affirmative action program plan

for the hiring, placement, and advancement of

individuals with disabilities in such

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29 U.S.C. § 794(a) (often referred to in the case law as section

504 of the Rehabilitation Act),23 prohibited federally funded

department, agency, instrumentality, or

Institution. Such plan shall include a

description of the extent to which and methods

whereby the special needs of employees who are

individuals with disabilities are being met.

Such plan shall be updated annually, and shall

be reviewed annually and approved by the

Commission, if the Commission determines,

after consultation with the Committee, that

such plan provides sufficient assurances,

procedures and commitments to provide adequate

hiring, placement, and advancement

opportunities for individuals with

disabilities.

23 29 U.S.C. § 794 provides in relevant part:

(a) Promulgation of rules and regulations

No otherwise qualified individual with a

disability in the United States, as defined in

section 705(20) of this title, shall, solely

by reason of her or his disability, be

excluded from the participation in, be denied

the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance or

under any program or activity conducted by any

Executive agency or by the United States

Postal Service. The head of each such agency

shall promulgate such regulations as may be

necessary to carry out the amendments to this

section made by the Rehabilitation,

Comprehensive Services, and Developmental

Disabilities Act of 1978. Copies of any

proposed regulation shall be submitted to

appropriate authorizing committees of the

Congress, and such regulation may take effect

no earlier than the thirtieth day after the

date on which such regulation is so submitted

to such committees.

29 U.S.C. § 794(a) (emphasis added). As will be discussed below,

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programs or activities from excluding handicapped individuals from

participating in the program, or denying benefits to handicapped

individuals, “solely by reason of her or his disability.” The

statute did not provide a private right of redress for violation of

either section. Nevertheless, “all courts that considered the

issue found that section 504 established a private cause of action

for handicapped persons subjected to discrimination by recipients

of federal funds”; however, “a private cause of action founded on

handicap discrimination was not recognized upon section 501 as

against a federal government employer.” Prewitt v. U.S. Postal

Serv., 662 F.2d 292, 302 (5th Cir. 1981).

Congress remedied this omission in 1978. As the Third

Circuit noted in Spence v. Straw, 54 F.3d 196, 199 (3d Cir. 1995),

however, it did so in a “less than artful manner,” by adopting

overlapping amendments from the House and the Senate. “The

Senate’s contribution focused on provision of a new section in the

Rehabilitation Act--section 505, codified at 29 U.S.C. § 794a.” 

Id. The new section provided that, with respect to 29 U.S.C. § 791

governing federal employers, “[t]he remedies, procedures, and

rights set forth in [Title VII] of the Civil Rights Act of

1964 . . . shall be available” to any aggrieved employee or

the highlighted language, and what follows, was added by amendment

in 1978.

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applicant for employment. 29 U.S.C. § 794a(a)(1).24 The Senate

also codified the cause of action--already recognized by most

courts--for those aggrieved by providers and recipients of federal

assistance. With respect to those claims, “[t]he remedies,

procedures, and rights set forth in [T]itle VI of the Civil Rights

Act of 1964, 42 U.S.C. § 2000d et seq.,” were available to

aggrieved parties. 29 U.S.C. § 794a(a)(2).25

24 Section 794a(a)(1) of Title 29 provides:

(a)(1) The remedies, procedures, and

rights set forth in section 717 of the Civil

Rights Act of 1964 (42 U.S.C. 2000e-16),

including the application of sections 706(f)

through 706(k) (42 U.S.C. 2000e-5(f) through

(k)) (and the application of section 706(e)(3)

(42 U.S.C. 2000e-5(e)(3)) to claims of

discrimination in compensation), shall be

available, with respect to any complaint under

section 791 of this title, to any employee or

applicant for employment aggrieved by the

final disposition of such complaint, or by the

failure to take final action on such

complaint. In fashioning an equitable or

affirmative action remedy under such section,

a court may take into account the

reasonableness of the cost of any necessary

work place accommodation, and the availability

of alternatives therefor or other appropriate

relief in order to achieve an equitable and

appropriate remedy.

25 Section 794a(a)(2) of Title 29 provides:

The remedies, procedures, and rights set forth

in title VI of the Civil Rights Act of 1964

(42 U.S.C. 2000d et seq.) (and in subsection

(e)(3) of section 706 of such Act (42 U.S.C.

2000e-5), applied to claims of discrimination

in compensation) shall be available to any

person aggrieved by any act or failure to act

-13-
The House, however, took a different approach. Because

courts had recognized a private cause of action under § 794

(section 504 of the Rehabilitation Act), the House merely

“‘extended section 504’s proscription against handicap

discrimination to “any program or activity conducted by an

Executive agency or by the United States Postal Service.”’” 

Spence, 54 F.3d at 199 (quoting Prewitt, 662 F.2d at 302).26 As

noted by the Fifth Circuit, “[t]he joint House-Senate conference

committee could have chosen to eliminate the partial overlap

between the two provisions, but instead the conference committee,

and subsequently Congress as a whole, chose to pass both

provisions, despite the overlap.” Prewitt, 662 F.2d at 304. In

taking this action, the Fifth Circuit concluded:

Congress clearly recognized both in section

501 and in section 504 that individuals now

have a private cause of action to obtain

relief for handicap discrimination on the part

of the federal government and its agencies. 

The amendments to section 504 were simply the

House’s answer to the same problem that the

Senate saw fit to resolve by strengthening

section 501. 

Id. 

The manner in which Congress amended the Rehabilitation

Act, however, created an “apparently incongruent enforcement

by any recipient of Federal assistance or

Federal provider of such assistance under

section 794 of this title.

26 See supra note 23.

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scheme.” Spence, 54 F.3d at 199. According to the terms of the

amended Rehabilitation Act, federal agencies could “be sued for

violation of either section 501 or 504 of the Act.” Id. If a

federal employee sues under § 791 (section 501 of the

Rehabilitation Act), Title VII’s remedies and administrative

processes apply. “Thus, a party is barred from suing a federal

agency for violation of section 501 [29 U.S.C. § 791] if he or she

has failed to exhaust administrative remedies under Title VII.” 

Id. at 200. However, an aggrieved federal employee also may sue

for a violation of § 794, which may be redressed through the

remedies and procedures set forth in Title VI of the Civil Rights

Act, for which exhaustion is not required. See id.27

27 The Seventh Circuit addressed this incongruity in

McGuinness v. United States Postal Service, 744 F.2d 1318 (7th Cir.

1984). It stated that the plaintiff could not “avoid dismissal of

the suit as premature by arguing that it is really a suit not under

section 505(a)(1) of the Rehabilitation Act but under section 504,

29 U.S.C. § 794.” Id. at 1321. The court recognized that “section

504 ha[d] been held applicable to employment discrimination as well

as other forms of discrimination against the handicapped by

recipients of federal money.” Id. Nevertheless, it observed that

it was “unlikely that Congress, having specifically addressed

employment of the handicapped by federal agencies (as distinct from

employment by recipients, themselves nonfederal, of federal money)

in section 501, would have done so again a few sections later in

section 504.” Id. According to our colleagues in the Seventh

Circuit, 

it would make no sense for Congress to provide

(and in the very same section--505(a))

different sets of remedies, having different

exhaustion requirements, for the same wrong

committed by the same employer; and there is

no indication that Congress wanted to do

this--as of course it could do regardless of

-15-
Although courts have differed slightly in their

reasoning, every circuit court to address the issue directly has

determined that a federal employee who brings an action under the

Rehabilitation Act must exhaust administrative remedies before

proceeding to court. See Spence, 54 F.3d at 201 (collecting

cases).28

what might seem sensible to us--when it added

section 505 in 1978.

Id. That court went on to determine that it did not have to

address whether federal employees could bring a cause of action

under only § 791 or under both § 791 and § 794, because, in either

situation, it was Congress’s intent that federal employees exhaust

the administrative remedies contained in Title VII. Accord Boyd v.

U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985) (“[W]e agree

with the Seventh Circuit that ‘it is unlikely that Congress, having

specifically addressed employment of the handicapped by federal

agencies (as distinct from employment by recipients, themselves

nonfederal, of federal money) in section 501, would have done so

again a few sections later in section 504.’” (quoting McGuinness,

744 F.2d at 1321)).

28 See also James Lockhart, Annotation, To What Extent Are

Federal Entities Subject to Suit under § 504(a) of the

Rehabilitation Act (29 U.S.C.A. § 794(a)), Which Prohibits any

Program or Activity Conducted by any Executive Agency or the Postal

Service from Discriminating on Basis of Disability, 146 A.L.R. Fed.

319 § 5 (1998). Among the authorities cited are: Doe v. Garrett,

903 F.2d 1455, 1461 (11th Cir. 1990) (holding that “private actions

against federal government employers under the Act, whether brought

under section 791 or 794, must satisfy the requirement of

exhaustion of administrative remedies in the manner prescribed by

section [794a(a)(1) ] and thus by Title VII” (alteration in

original) (internal quotation marks omitted)); Morgan v. United

States Postal Service, 798 F.2d 1162, 1164-65 (8th Cir. 1986)

(requiring exhaustion of administrative remedies for federal

employee even when he proceeds under § 504); Boyd, 752 F.2d at 413

(following McGuinness and holding “that section 501 is the

exclusive remedy for discrimination in employment by the Postal

Service on the basis of handicap”); Smith v. United States Postal

Service, 742 F.2d 257, 262 (6th Cir. 1984) (holding that the 1978

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Although district courts within our own circuit similarly

have held that exhaustion is required for federal employees,29 and,

in at least one case, we have suggested the same,30 we never have

addressed directly whether a federal employee seeking redress under

the Rehabilitation Act is limited to proceeding under § 791

(section 501 of the Rehabilitation Act) and, if not, whether she

must nonetheless exhaust administrative remedies. 

We noted this “procedural wrinkle” in Leary v. Dalton, 58

F.3d 748, 751 (1st Cir. 1995), in which a federal employee had

brought a Rehabilitation Act claim under 29 U.S.C. § 794 (section

504 of the Rehabilitation Act). We stated:

Although the district court decided this case

under § 504 of the Rehabilitation Act, 29

U.S.C. § 794 (prohibiting disability

discrimination by non-federal recipients of

federal funds), Leary actually invoked § 501

of the Act, 29 U.S.C. § 791, in his complaint. 

Amendments to the Rehabilitation Act “mandate exhaustion as a

prerequisite to such claims, regardless of whether they are brought

under section 501 or section 504”); and Prewitt v. United States

Postal Service, 662 F.2d 292, 304 (5th Cir. 1981) (“[I]n order to

give effect to both the House and the Senate 1978 amendments

finally enacted, we must read the exhaustion of administrative

remedies requirement of section 501 into the private remedy

recognized by both section 501 and section 504 for federal

government handicap discrimination.”).

29 See Clark v. U.S. Postal Serv., 592 F. Supp. 631, 632 (D.

Mass. 1984).

30 See Stoll v. Principi, 449 F.3d 263, 266 (1st Cir. 2006)

(“The lodging of either a formal appeal with the Board or a formal

complaint with the agency demarcates the point of no return. From

that point forward, the complainant must exhaust her claim in the

chosen forum.” (citation omitted)). 

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Section 501(b) imposes an affirmative duty on

every “department, agency, and instrumentality

. . . in the executive branch” of the federal

government to provide adequate hiring,

placement, and advancement opportunities for

individuals with disabilities. Some circuits

view § 501, accordingly, as the exclusive

right of action for federal employees who

suffer disability discrimination in the course

of their direct employment. Other circuits,

ours included, have permitted such claims to

be brought under both § 501 and § 504. 

The differences between the two sections

may be significant in some cases (though not

this one, as we shall explain). Not only is

it unclear whether the right of action under

§ 504 overlaps with that in § 501, it is also

unclear, in light of recent amendments to the

Rehabilitation Act, whether the two sections

require the same showing of causation. . . . 

We therefore regard the applicability of

§ 504 and its sole causation test in this

federal employment suit as an open question;

but one that we need not reach here. Leary

agrees on appeal that his claim arises under

§ 504, and that he bears the burden of

demonstrating that he was terminated “solely

by reason of” his disability. 

Leary, 58 F.3d at 751-52 (first alteration in original) (emphasis

added) (citations omitted).31 Although Leary discussed the

31 In one recent case in which the issue of exhaustion was not

raised, we stated in passing that the Rehabilitation Act does not

require exhaustion. See Farris v. Shinseki, 660 F.3d 557, 562 n.5

(1st Cir. 2011). Tracing back that statement to its origin (Farris

relies on Prescott v. Higgins, 538 F.3d 32, 44 (1st Cir. 2008),

which in turn cites Brennan v. King, 139 F.3d 258, 268 n.12 (1st

Cir. 1998)), however, it is clear that the statement concerns a

claim brought by a non-federal employee under § 794 (section 504 of

the Rehabilitation Act), not § 791 (section 501 of the

Rehabilitation Act). See Brennan, 139 F.3d at 268 n.12 (addressing

claims brought by university professor and stating that “[t]he

Rehabilitation Act derives its procedural requirements from Title

-18-
difference in causation standards, it did not discuss the disparity

in exhaustion requirements; indeed, it made no mention of

exhaustion at all. 

The court’s methodology in Leary counsels that we need

not resolve, in the present case, whether federal employees,

proceeding exclusively under § 794, must exhaust administrative

remedies. Here, when the Government raised in the district court

that Ms. Bartlett had not complied with the forty-five-day

administrative exhaustion requirement, she never asserted that she

was exempt from the exhaustion requirement because it was

inapplicable to the provision on which she was resting her claim. 

At the very least, by failing to raise the issue in the district

court, she has forfeited any argument that exhaustion of remedies

under the Rehabilitation Act was not required in this case. See

Farris v. Shinseki, 660 F.3d 557, 562 n.5 (1st Cir. 2011) (forgoing

a determination of whether the plaintiff was required to exhaust

administrative remedies because the issue had not been raised in

the district court or briefed on appeal). 

B. Equitable Tolling

The central issue raised by Ms. Bartlett’s appeal is

whether the district court should have equitably tolled the fortyVI, which does not have an exhaustion requirement”). 

-19-
five-day time limit, set by regulation,32 within which she was

required to commence the administrative complaint procedure for her

allegedly discriminatory constructive discharge. In the context

of litigation initiated by federal employees, we have noted that

“administrative exhaustion ‘is a condition to the waiver of

sovereign immunity’” and, therefore, “‘must be strictly

construed.’” Id. at 563 (quoting Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 94 (1990)). It is “[o]nly in exceptional

circumstances” that equitable tolling will extend a filing

deadline. Id. (internal quotation marks omitted). To this end,

“the heavy burden” of “prov[ing] entitlement to equitable relief

lies with the complainant.” Id. 

Generally speaking, “[e]quitable tolling suspends the

running of the limitations period ‘if the plaintiff, in the

exercise of reasonable diligence, could not have discovered

information essential to [his claim].’” Ortega Candelaria v.

Orthobiologics LLC, 661 F.3d 675, 679-80 (1st Cir. 2011)

(alteration in original) (quoting Barreto-Barreto v. United States,

551 F.3d 95, 100 (1st Cir. 2008)).33 In making a determination

32 See supra note 2. 

33 We have observed that “[e]quitable tolling casts a wider

net than [the related doctrine of] equitable estoppel.” Ortega

Candelaria v. Orthobiologics LLC, 661 F.3d 675, 679 (1st Cir. 2011)

(internal quotation marks omitted). In contrast to equitable

tolling, 

[e]quitable estoppel applies when a plaintiff who

-20-
whether equitable tolling should apply in the context of a claim

brought under the Age Discrimination in Employment Act (“ADEA”), we

have instructed that, 

where a plaintiff is claiming excusable

ignorance of the filing deadline, we believe a

court should initially determine whether the

plaintiff had either actual or constructive

knowledge of his rights under the ADEA. 

Actual knowledge occurs where an employee

either learns or is told of his ADEA rights,

even if he becomes only generally aware of the

fact that there is a statute outlawing age

discrimination and providing relief

therefor. . . . Constructive knowledge, on

the other hand, is “attributed” to an employee

in situations where he has retained an

attorney, or where an employer has fulfilled

his statutory duty by conspicuously posting

the official EEOC notices that are designed to

inform employees of their ADEA rights. . . .

If the court finds that the plaintiff

knew, actually or constructively, of his ADEA

rights, ordinarily there could be no equitable

tolling based on excusable ignorance.

Kale v. Combined Ins. Co. of Am., 861 F.2d 746, 753 (1st Cir. 1988)

(emphasis added) (citations omitted). 

knows of his cause of action reasonably relies on the

defendant’s conduct or statements in failing to bring

suit. In order to demonstrate entitlement to equitable

estoppel, a plaintiff must show evidence of the

defendant’s improper purpose or his constructive

knowledge of the deceptive nature of his conduct . . . in

the form of some definite, unequivocal behavior . . .

fairly calculated to mask the truth or to lull an

unsuspecting person into a false sense of security.

Id. (second and third alterations in original) (citation omitted)

(internal quotation marks omitted).

-21-
If, however, the plaintiff did not have actual knowledge,

or if the employer failed to post the required notices, then “[t]he

court should also assess any countervailing equities against the

plaintiff.” Id. (emphasis added). Specifically, the court should

ask the following questions: 

[D]id he diligently pursue his claim, was his

ignorance of his rights reasonable under the

circumstances, and would allowing equitable

tolling still fulfill the basic purposes

behind the limited filing period--namely,

providing the government an opportunity to

conciliate while the complaint is fresh and

giving early notice to the employer of

possible litigation.

Id. (citations omitted). “Finally, even if the court finds that

the above factors call for equitable tolling, it must then take

account of the degree to which delay prejudices the defendant.” 

Id.

1.

Before the district court, Ms. Bartlett maintained that

she did not have actual knowledge of the forty-five-day deadline. 

Her argument was supported by an affidavit, in which she states:

“No one from the defendant ever informed me that I only had fortyfive (45) days to file an employment discrimination claim.”34 As

noted above, however, ordinarily there cannot be equitable tolling

based on excusable ignorance if the plaintiff had either actual or

34 R.12-1 at 2.

-22-
constructive knowledge of her statutory rights. Kale, 861 F.2d at

753. Although Ms. Bartlett alleged that she lacked actual

knowledge of the filing deadline--and supported that allegation by

affidavit--she did not challenge the IRS’s assertion, supported by

the declaration of Damaris Ouellette, that it had complied with the

posting requirements.35 Ms. Bartlett, therefore, has not carried

her burden of showing a lack of constructive knowledge of the

filing requirements. 

In her brief before this court, Ms. Bartlett does not

contest that the IRS’s postings sufficed to establish her

constructive knowledge of the filing deadlines. Instead, she

maintains that the district court erred when it decided the issue

of notice on a motion to dismiss. She argues that we have held

that the issue of constructive notice is one of fact that cannot be

decided on a motion to dismiss. She relies on Mercado v. RitzCarlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir. 2005),

to support her position.

In Mercado, employees filed Title VII administrative

charges after the three-hundred-day deadline had passed, and their

35 Federal agencies, as part of their implementation of

“affirmative program[s] to promote equal opportunity and to

identify and eliminate discriminatory practices and policies,” must

“[m]ake written materials available to all employees and applicants

informing them of the variety of equal employment opportunity

programs and administrative and judicial remedial procedures

available to them and prominently post such written materials in

all personnel and EEO offices and throughout the workplace.” 29

C.F.R. § 1614.102(a) & (b)(5).

-23-
employer, Ritz-Carlton, moved to dismiss on the ground that the

complaints were untimely. In response, the plaintiffs “claimed

that Ritz-Carlton was barred from asserting timeliness as a defense

because the hotel [had] failed to comply with EEOC regulations

requiring employers to post notices advising employees of their

legal rights relating to employment discrimination.” Id. at 44. 

We held that “[h]ere, where appellants have asserted that no

informational notices were posted and that they had no knowledge of

their legal rights until informed by their attorney, they have met

the threshold requirements for avoiding dismissal of their Title

VII suit.” Id. at 48 (footnote omitted).

Ms. Bartlett maintains that Mercado stands for the

proposition that, “where the issue of notice is disputed[,] a

plaintiff has met the threshold requirements for avoiding

dismissal.” Appellant’s Br. 13. We agree, but that is not what

happened here. Ms. Bartlett never has alleged that the IRS failed

to post the required notices. Instead, she asserts that an IRS

employee never affirmatively informed her of the filing deadline.36

This assertion contests the issue of actual knowledge, but not

constructive knowledge.37 

36 See R.12-1 at 2.

37 We are unaware, however, of any regulation, statute or case

law that imposes such an obligation on Government agencies, and

Ms. Bartlett has pointed to none. 

-24-
 Ms. Bartlett also suggests, without explicitly arguing,

that the district court’s ruling was more akin to summary judgment

than to dismissal for failure to state a claim. See Appellant’s

Br. 14-15. Under the Federal Rules of Civil Procedure, a district

court must advise the parties if, in ruling on a motion to dismiss,

it is considering materials outside the pleadings:

If, on a motion under Rule 12(b)(6) or 12(c),

matters outside the pleadings are presented to

and not excluded by the court, the motion must

be treated as one for summary judgment under

Rule 56. All parties must be given a

reasonable opportunity to present all the

material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). Here, the district court did not formally

convert the IRS’s motion to dismiss into a motion for summary

judgment, despite the fact that the motion was accompanied by other

materials. 

The district court’s failure to convert the motion,

however, does not require reversal. We have made it clear that we

“do[] not mechanistically enforce the requirement of express notice

of a district court’s intention to convert a Rule 12(b)(6) motion

into a motion for summary judgment.” Boateng v. InterAmerican

Univ., Inc., 210 F.3d 56, 60 (1st Cir. 2000). “Instead, we treat

any error in failing to give express notice as harmless when the

opponent has received the affidavit and materials, has had an

opportunity to respond to them, and has not controverted their

accuracy.” Id. (internal quotation marks omitted). Here,

-25-
Ms. Bartlett not only responded to the IRS’s motion to dismiss, but

attached several documents to her response. Furthermore, in her

briefing on appeal, Ms. Bartlett does not argue that she was denied

an opportunity to respond, nor does she suggest that there are

other affidavits or documents that she would have submitted to the

district court if she had been given formal notice that the court

was converting the IRS’s motion to a motion for summary judgment. 

Consequently, the failure by the district court to formally convert

the motion to dismiss into a motion for summary judgment was

harmless.38

2.

Ms. Bartlett also maintains that the filing deadline

should be tolled because she was suffering from mental illness. We

have recognized that mental illness may toll the time to file an

administrative claim of discrimination, but only if the plaintiff

has “show[n] that the mental disability was so severe that the

plaintiff was ‘[un]able to engage in rational thought and

deliberate decision making sufficient to pursue [her] claim alone

or through counsel.’” Mélendez-Arroyo v. Cutler Hammer de P.R.

Co., 273 F.3d 30, 37 (1st Cir. 2001) (second and third alterations

38 Because Ms. Bartlett had constructive notice of the filing

requirement, we do not have to engage in the second step of the

equitable tolling analysis: “assess[ing] any countervailing

equities against the plaintiff.” Kale v. Combined Ins. Co. of Am.,

861 F.2d 746, 753 (1st Cir. 1988). 

-26-
in original) (quoting Nunnally v. MacCausland, 996 F.2d 1, 5 (1st

Cir. 1993)). In this case, the district court applied this

standard and determined that equitable tolling was not appropriate

because Ms. Bartlett had not argued that her illness had resulted

in the necessary level of incapacity.39

On appeal, Ms. Bartlett does not maintain that her

illness rendered her unable to engage in rational thought and

deliberate decision making. Indeed, she explicitly alleges in her

Complaint that she “performed her duties and responsibilities

competently and her disability did not otherwise interfere with her

ability to perform her job.” R.1 at 2. Nowhere does Ms. Bartlett

allege that her mental condition--which she says did not affect her

job performance--worsened after her separation from employment. 

She maintains only that the district court applied the incorrect

legal standard in determining whether the time limit should be

tolled based on mental illness. She argues that our case law “does

not stand for the proposition that in an equitable tolling analysis

a mental illness must be so severe as to deprive the sufferer of

the rational thought necessary to protect their legal rights.” 

Appellant’s Br. 14. Rather, she claims that the standard we

articulated in Lopez v. Citibank, 808 F.2d 905 (1st Cir. 1987)--a

case-law antecedent to Mélendez-Arroyo--“is a very narrow one” and

39 See R.25 at 4 (“Here, plaintiff does not contend that her

mental illness was so debilitating that she was unable to meet the

45-day deadline.”).

-27-
is based on the unique facts that were before the court. 

Appellant’s Br. 14.

We do not believe that the district court’s determination

runs afoul of Lopez. In Lopez, the plaintiff filed his Title VII

action eighteen months after he had been notified that the EEOC had

dismissed his charge, approximately fifteen months after the

ninety-day statute of limitations had run. The plaintiff

maintained, however, that equitable tolling should be applied

because “he was mentally incapacitated during much or all of the

relevant eighteen-month period.” Lopez, 808 F.2d at 906. In

evaluating this claim, we noted that “there is no absolute rule

that would require tolling whenever there is mental disability.” 

Id. We observed that “[t]he federal courts have taken a uniformly

narrow view of equitable exceptions to Title VII limitations

periods.” Id. (internal quotation marks omitted).40 We concluded: 

40 This is still the case. See, e.g., Wilkie v. Dep’t of

Health & Human Servs., 638 F.3d 944, 950 (8th Cir. 2011) (noting

that “the standard for tolling due to mental illness is a high one”

and reiterating that “a plaintiff seeking tolling on the ground of

mental incapacity must come forward with evidence that a mental

condition prevented him from understanding and managing his affairs

generally and from complying with the deadline he seeks to toll”

(internal quotation marks omitted)); Boos v. Runyon, 201 F.3d 178,

185 (2d Cir. 2000) (holding that a plaintiff’s “conclusory and

vague claim, without a particularized description of how her

condition adversely affected her capacity to function generally or

in relationship to the pursuit of her rights, is manifestly

insufficient to justify any further inquiry into tolling”); Miller

v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (refusing “to depart

from the traditional rule that mental illness tolls a statute of

limitations only if the illness in fact prevents the sufferer from

managing his affairs and thus from understanding his legal rights

-28-
Without an absolute rule in his favor,

appellant cannot prevail here. Appellant was

represented by counsel during his period of

illness, and counsel pursued appellant’s

discrimination claim before the EEOC. It thus

seems unlikely that appellant’s illness

deprived his counsel of the knowledge or

consent needed to file a court complaint; it

is more likely that counsel knew plaintiff

wished to pursue his legal remedies and knew

(or should have known) about the relevant

limitations period. And, appellant has

alleged no specific facts that would show the

contrary. In such circumstances, we believe a

federal court should assume that the mental

illness was not of a sort that makes it

equitable to toll the statute--at least absent

a strong reason for believing the contrary.

Id. at 907. 

We agree with Ms. Bartlett that, in Lopez, the fact that

the plaintiff had retained counsel factored into our analysis. 

However, nothing in Lopez suggests a more relaxed standard for

assessing mental incapacity in the context of equitable tolling. 

See id. at 906. Morever, since Lopez, we have said:

Both cases, Lopez and Nunnally, said that

equitable tolling was available in principle

but only if the plaintiff showed that the

mental disability was so severe that the

plaintiff was “[un]able to engage in rational

thought and deliberate decision making

sufficient to pursue [her] claim alone or

through counsel.” [Nunnally,] 996 F.2d at 5. 

Lopez rejected the claim because the plaintiff

had been represented by counsel, 808 F.2d at

907; Nunnally thought a hearing required where

the plaintiff showed that she was “nearly a

street person” with a probable diagnosis of

paranoid schizophrenia, 996 F.2d at 6.

and acting upon them”). 

-29-
Mélendez-Arroyo, 273 F.3d at 37 (emphasis added). In MélendezArroyo, we made it “clear that merely to establish a diagnosis such

as severe depression is not enough.” Id. at 38. Instead, a

plaintiff must show that she is, because of her disability,

“[un]able to engage in rational thought and deliberate decision

making sufficient to pursue [her] claim alone or through counsel.” 

Id. at 37 (alterations in original) (quoting Nunnally, 996 F.2d at

5); see also Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996)

(stating “the traditional rule [is] that mental illness tolls a

statute of limitations only if the illness in fact prevents the

sufferer from managing his affairs and thus from understanding his

legal rights and acting upon them”).

The documentation that Ms. Bartlett submitted to the

district court fell far short of what is necessary to “raise[] a

factual dispute about her capacity that could not be resolved

solely on the papers.” Id. at 38. Ms. Bartlett never averred, nor

does any of her evidence point to the conclusion, that her

depression deprived her of the ability to engage in rational

thought or deliberate decision making. She maintains only that

“she was experiencing a severe mental illness,” Appellant’s Br. 17,

but, under our case law, “establish[ing] a diagnosis such as severe

depression is not enough,” Mélendez-Arroyo, 273 F.3d at 38. 

Rather, the alleged severe mental illness must be marked by a

significantly reduced capacity to make rational decisions. On

-30-
appeal Ms. Bartlett does not argue that she could come forward with

evidence that her depression rendered her unable to “understand[]

h[er] legal rights and act[] upon them,” Miller, 77 F.3d at 191,

but was deprived of the opportunity to do so.41

Because Ms. Bartlett has not alleged that she was

mentally incapacitated during the forty-five-day filing period and

has not argued that she could come forward with evidence

establishing such incapacity, she has not made the necessary

showing to establish that equitable tolling should be applied to

save her untimely administrative action.

Conclusion

For the reasons set forth above, we affirm the judgment

of the district court.

AFFIRMED

41 We do not imply, of course, that severe depression never

could meet that standard. We simply observe that no such showing

has been made here.

-31-