* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-50436

Summary Calendar

BETTY MARIE DUSING,

Plaintiff-Appellant,

VERSUS

TOGO D. WEST, in his official capacity as

United States Secretary of the Army,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of El Paso

(U.S.D.C. NO. EP-92-CV-21)

March 21, 1996

Before REAVLEY, DUHÉ, AND WIENER, Circuit Judges.

PER CURIAM:*

John D. Addis (deceased) filed this complaint based on

handicap discrimination under the Rehabilitation Act, 29 U.S.C.

§ 791, et seq., and the Civil Rights Act of 1991, 42 U.S.C.

§ 1981a. After Addis’ death, Betty Marie Dusing, as executor of

his estate, was substituted as plaintiff.

Addis initially filed an Equal Employment Opportunity (“EEO”)
 

1 Pacheco v. Rice, 966 F.2d 904 (5th Cir. 1992).

2

complaint alleging he was forced to seek disability retirement

after twenty-three years as a civilian employee of the Army due to

exacerbation of cancer caused by a hostile work environment. Addis

asserted that, although his supervisors were aware of his worsening

physical condition, they continuously harassed him and refused to

accommodate his illness. Addis’ EEO complaint was first rejected

as untimely by the Army, but on appeal, the EEOC found that Addis

should be excused from the filing deadlines. After a full

investigation, the complaint was again rejected by the Army and the

EEOC.

The district court dismissed the complaint because Addis’

original EEO complaint was filed untimely, and held no defense such

as waiver, estoppel or equitable tolling was present. Dusing does

not complain of the district court’s alternative ruling dismissing

her civil rights complaint because the acts of which Addis had

complained were committed prior to the effective date of the Civil

Rights Act of 1991.

Addis was required to file his EEO complaint within the

prescribed time limits of 29 C.F.R. § (a)(i) & (ii). Since Addis’

complaint was not brought to the attention of an EEO counselor

until approximately six months after his retirement from government

employment, the district court reasoned the complaint was untimely,

relying upon Pacheco v. Rice.

1

We disagree. In Pacheco the plaintiff waited three years to

file his complaint, which was held untimely because he had no
 

2 Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981). See also

Henderson v. United States Veterans Admin., 790 F.2d 436 (5th Cir.

1986).

 

3 Oaxaca, 641 F.2d at 389.

 

4 Id. at 391.

3

excuse for not filing a complaint and initiating an investigation

within the prescribed time frame of 29 C.F.R. § (a)(i). The facts

of the instant case are more analagous to those of Oaxaca v.

Roscoe2, in which the plaintiff alleged he had no way of knowing he

had been subjected to discrimination until after the time limits

for filing a complaint had passed, but acted promptly when the

alleged wrongful act was discovered, and otherwise complied with

the statutory and regulatory procedures.3 Since Oaxaca had never

been notified of the filing deadlines, this court held he should be

given an opportunity to establish facts that would entitle him to

an equitable tolling or delay in the commencement of the thirty-day

time period under 29 C.F.R. § 1614.214(a)(4), which requires an

agency to extend the time limits under certain circumstances.4 

The record reflects that Addis contended from the very

beginning that he did not know he had a disability discrimination

claim, and he was never so informed by either Army or civilian

personnel despite complaining of his supervisors’ harassment to

civilian personnel and the inspector general. He argues he was

entitled to an extension of the time limits under § 1614.214(a)(4).

Addis otherwise complied with all statutory and regulatory

procedures. Addis did plead grounds warranting equitable tolling,

and the district court should proceed as was set forth in Oaxaxa.
4

VACATED AND REMANDED.