United States Court of Appeals

For the First Circuit

No. 12-2439

ÁNGEL 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.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,

Torruella and Selya, Circuit Judges.

Carlos R. Rodríguez-García, with whom Rodríguez-García,

P.S.C., was on brief for appellant.

Ginette L. Milanés, with whom Rosa Emilia Rodríguez-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.

July 15, 2014
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 administrative

remedies 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

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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. See 29

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

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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

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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. See 29

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 disabilitybased 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

Vázquez's brief concludes with a request for reversal of the 1

dismissal of his Rehabilitation Act claims "and pendent state

claims." Nowhere in his brief, however, does Vázquez offer any

explanation as to how he believes the district court erred in

dismissing his state law claims on sovereign immunity grounds. 

Thus, to the extent that Vázquez may have intended to challenge the

district court's ruling as to his state law claims, any such

challenge is deemed waived by the total absence of argument. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.").

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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. See 42 U.S.C. § 2000e16(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 (1976)). This exhaustion 2

In the interest of completeness, we note that the Rehabilitation 2

Act provides that claims brought under section 794 -- unlike those

brought under section 791 -- are governed by the procedural

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requirement is 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 (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).

requirements of Title VI of the Civil Rights Act of 1964. 29

U.S.C. § 794a(a)(2). In theory, then, an individual who brings a

claim under section 794 rather than section 791 could avoid Title

VII's administrative exhaustion requirement.

Although this court has declined to decide the subject

directly, we have noted that our sister circuits have uniformly

held that a federal employee wishing to bring suit under the

Rehabilitation Act must first exhaust administrative remedies. 

Bartlett v. Dep't of the Treasury (I.R.S.), 749 F.3d 1, 8 (1st Cir.

2014) (observing that "in at least one case, we have suggested the

same," but declining to decide whether a federal employee suing

under section 794 must exhaust administrative remedies). We have

found it prudent to avoid resolving the matter in cases where it

was not required, as when a plaintiff bringing suit under section

794 "never asserted that she was exempt from the exhaustion

requirement." Id. at 9 ("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.").

Prudence once again counsels against the resolution of the

exhaustion question in this case. Although it is unclear whether

Vázquez alleged a violation of section 791 or 794, we need not

attend to the matter because he has waived any argument that

administrative exhaustion was not required by failing to raise it

before the district court or on appeal. See id. (declining to

decide whether plaintiff was required to exhaust administrative

remedies where the issue was not raised in the district court or on

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

(same). We thus proceed -- in keeping with Vázquez's own

assertions -- under the assumption that Title VII's procedures

apply and that administrative exhaustion was required.

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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

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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

F.3d 151, 158 n.5 (1st Cir. 2011) (holding that an argument not

made first to the district court is waived). 

But even if the argument could be considered on its

merits, Vázquez would fare no better. He offers not an iota of

support for his belief that the Federal Rules of Civil Procedure --

rules that govern civil suits in federal courts -- extend to nonjudicial proceedings governed by administrative regulations. 

Moreover, Vázquez conceded at oral argument that he had confused

the facts, that his brief was incorrect, and that he received the

NORF via hand-delivery and not via mail. Thus, even if the

argument had not been waived, and even if the Federal Rules of

Civil Procedure did apply, Vázquez would not have qualified for the

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three-day extension afforded by Rule 6(d) for filings served via

mail.

The district court thus correctly found that Vázquez's

administrative filing on July 27 fell outside the fifteen-day

period and was untimely under 29 C.F.R. § 1614.106(b).

B. Equitable Tolling

Having disposed of Vázquez's timeliness argument, we are

left only with his claim that the district court erred by finding

that equitable tolling was not warranted. The crux of Vázquez's 3

claim is that his delay of one day ought to have been excused in

light of his mental illness or impairment, particularly considering

that he abided by all other administrative requirements and that a

one-day delay did not prejudice his opponent.

In the midst of his equitable tolling argument, Vázquez asserts 3

that the Army never provided him with notice "that he could, under

the Code of Federal Regulations, seek and request a brief extension

of time to file his Formal Administrative Complaint, thus breaching

Plaintiff's constitutional due process clause [rights]." He then

cites 29 C.F.R. § 1614.107(2), which states that failure to comply

with the applicable time limits will result in a complaint's

dismissal unless the agency extends the time limit under

§ 1614.604(c), which in turn provides that time limits "are subject

to waiver, estoppel and equitable tolling." Missing from Vázquez's

brief is any support for the notion that he had a right to request

an extension under the Code of Federal Regulations -- a deficiency

that his citation of the inapposite 29 C.F.R. § 1614.107(2) does

nothing to remedy. As Vázquez has failed to demonstrate the

existence of a right to an extension by request, we cannot see how

the Army's failure to notify Vázquez of such a right could

implicate his due process rights under the U.S. Constitution. 

Vázquez's three sentences on the subject do nothing to shed light

on the claim, which we deem waived for lack of development. See

Zannino, 895 F.2d at 17.

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Vázquez correctly notes that the fifteen-day filing limit

is, in certain circumstances, "subject to waiver, estoppel and

equitable tolling." 29 C.F.R. § 1614.604(c); see also Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) ("[F]iling a

timely charge of discrimination with the EEOC is not a

jurisdictional prerequisite to suit in federal court, but a

requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling."). In addition, this

court has expressly held that equitable tolling may be appropriate

when mental illness prevents an individual from timely pursuing a

Rehabilitation Act claim. See Nunnally v. MacCausland, 996 F.2d 1,

5 (1st Cir. 1993).

However, the fact that mental illness could, under

certain circumstances, support equitable tolling does not mean that

Vázquez was automatically entitled to the same. As this court

explained in Meléndez-Arroyo v. Cutler-Hammer de P.R. Co., 273 F.3d

30 (1st Cir. 2001), equitable tolling is "available in principle

but only if the plaintiff show[s] that the mental disability was so

severe that the plaintiff was unable to engage in rational thought

and deliberate decision making sufficient to pursue [his] claim

alone or through counsel." Id. at 37 (internal quotation marks,

alteration, and citation omitted). The "heavy burden" of

establishing entitlement to equitable tolling rests on the

plaintiff. Farris, 660 F.3d at 563.

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In this case, the district court determined that Vázquez

had not met his burden of showing entitlement to equitable relief. 

We agree. Vázquez's mental impairment argument on appeal consists

of the following assertions: (1) Vázquez has or had an unspecified

mental illness or impairment; (2) during the fifteen-day filing

period, he was under the care of a psychiatrist; and (3) he was

prescribed drugs that affected his ability to focus on deadlines. 

Critically, Vázquez never so much as alleges that he was unable to

engage in rational thought and deliberate decisionmaking sufficient

to allow him to pursue his claims.

Neither can we piece together such a claim on the basis

of information in the record. The evidence of illness that Vázquez

did provide -- copies of prescriptions -- tells us that he was

prescribed anti-anxiety medication and anti-depressants at various

points in 2010. It tells us nothing about his diagnosis, the

effects of those medications, or Vázquez's capacity for thought and

decisionmaking during the pertinent fifteen-day period. Vázquez

offers no affidavits to fill this void, nor does he provide any

other evidence that could substantiate a claim of mental incapacity

during the fifteen-day filing period. Although Vázquez did provide

a letter from a psychiatrist, the letter was unsworn and, moreover,

was dated March 25, 2011. Thus, the letter's suggestion that he

may have major depression is of little assistance in determining

the nature of Vázquez's mental state back in July 2010.

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Even if we were to credit the unsworn, untimely letter,

such evidence would be insufficient to establish entitlement to

equitable relief. "It is clear that merely to establish a

diagnosis such as severe depression is not enough" to demonstrate

entitlement to equitable tolling. Meléndez-Arroyo, 273 F.3d at 38;

see also Bartlett v. Dep't of the Treasury (I.R.S.), 749 F.3d 1, 14

(1st Cir. 2014) ("She maintains only that she was experiencing a

severe mental illness, but, under our case law, establishing a

diagnosis such as severe depression is not enough." (internal

quotation marks, alteration, and citations omitted)). In this

case, Vázquez failed to establish that he was even suffering from

depression during the pertinent period of time. Vázquez's case is

thus a far cry from Meléndez-Arroyo, where the appellant had

established a contemporaneous diagnosis and offered affidavits

showing that her mental impairment prevented her from managing even

basic functions like living alone, dressing, and brushing her

teeth. See 273 F.3d at 38. Vázquez's position is more aptly

compared to that of the appellant in Bartlett, who, like Vázquez,

"never averred, nor [did] 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." 749

F.3d at 14. There, as here, an appellant's claims of severe mental

illness, unaccompanied by so much as the suggestion that the

illness rendered the appellant unable to understand or act on his

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legal rights, was not enough to establish entitlement to equitable

tolling.4

The district court acted well within its discretion when

it denied Vázquez's request for equitable tolling on the

insufficiently supported basis of mental illness.5

III. Conclusion

For the forgoing reasons, we affirm the district court's

dismissal of Vázquez's claims.

Although we have previously recognized the "absence of prejudice 4

to the defendant" as a relevant factor in our equitable tolling

analysis, we have also explained that it is "not an independent

basis for tolling." Farris, 660 F.3d at 564 (internal quotation

marks and citation omitted). The absence of prejudice is thus not

sufficient to warrant equitable relief where Vázquez has failed to

establish a basis for equitable tolling on other grounds. That

being the case, no further discussion of this claim is warranted.

As a final matter, we must dispose of Vázquez's poorly briefed 5

assertion that his claims are "saved by the serial violation branch

of the continued violation doctrine." He offers no explanation as

to how the doctrine might work to extend the filing period here,

and we can imagine none. The continuing violation doctrine is an

equitable doctrine that can work to extend the limitations period

to file a claim of discrimination where the discrimination is

ongoing and filing is delayed "because the claimant needed to

experience a pattern of repeated acts before she could be expected

to realize that the individual acts were discriminatory in nature." 

Loubriel v. Fondo del Seguro del Estado, 694 F.3d 139, 144 (1st

Cir. 2012). We have previously explained that the doctrine

"relates to statutes of limitations and has no bearing on relief

from Title VII's exhaustion requirements." Jorge, 404 F.3d at 565

n.7. Certainly, the doctrine has no applicability to Vázquez's

situation, where he filed an informal complaint of disability

discrimination with an EEO counselor on May 12, 2010, and received

a NORF on July 9, 2010. By that date, he undoubtedly was aware of

the purportedly discriminatory conduct and had recognized it as

such, as documented by the EEO counselor's report, which details

Vázquez's allegations of harassment and discrimination.

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AFFIRMED.

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