United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 13, 2007 Decided May 25, 2007

No. 05-5494

CARLA HARRIS,

APPELLANT

v.

ALBERTO GONZALES,

ATTORNEY GENERAL OF THE UNITED STATES,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 04cv02203)

Stephen Z. Chertkof argued the cause and filed the briefs for

appellant.

Rhonda C. Fields, Assistant U.S. Attorney, argued the cause

for appellee. With her on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Michael J. Ryan, Assistant U.S. Attorney, entered an

appearance.

Before: TATEL, GARLAND, and BROWN, Circuit Judges.
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TATEL, Circuit Judge: Appellant, an independent

contractor working for the Department of Justice, contacted an

equal employment opportunity counselor to file a sex

discrimination complaint against the Department, but she failed

to do so until after the 45-day time limit for federal employees

to make such contacts had expired. The applicable regulation

requires an extension of the 45-day period if the complainant

“was not notified of the time limits.” 29 C.F.R. §

1614.105(a)(2). Concluding that appellant should have known

about the 45-day requirement from posted notices, the district

court granted summary judgment to the Department. For the

reasons set forth in this opinion, we reverse.

I.

Title VII of the Civil Rights Act of 1964, as amended,

makes it unlawful for the federal government to discriminate in

employment on the basis of sex, 42 U.S.C. § 2000e-16, a

prohibition that includes discrimination on the basis of

pregnancy, id. § 2000e(k). Before filing suit, Title VII plaintiffs

must timely exhaust their administrative remedies. Id.

§ 2000e-16(c). Specifically, Equal Employment Opportunity

Commission (EEOC) regulations require that “aggrieved

[federal employees] . . . initiate contact with a[n Equal

Employment Opportunity (EEO)] Counselor within 45 days of

the date of the matter alleged to be discriminatory.” 29 C.F.R.

§ 1614.105(a)(1); see id. § 1614.103(b)–(c). Subsection (a)(2)

of the regulation further provides that “[t]he agency or the

[EEOC] shall extend the 45-day time limit . . . when the

individual shows that he or she was not notified of the time

limits and was not otherwise aware of them . . . or for other

reasons considered sufficient . . . .” 29 C.F.R. § 1614.105(a)(2).

From April through October 2002, Appellant Carla Harris,

an employee of Integrated Management Services, Inc. (IMSI),
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worked as an independent contractor in the Security Programs

Office of the Executive Office for United States Attorneys

(EOUSA) of the Department of Justice (DOJ). Seven months

after Harris completed that assignment, DOJ arranged for her to

work in a different EOUSA group. Gloria Harbin, Harris’s

project supervisor, selected her for the new assignment without

knowing that Harris was pregnant. But by the time Harris

reported for her first day of work on May 31, 2003, her

pregnancy was apparent. That same day, after briefly meeting

with Harris, Harbin directed IMSI to remove her from the

contract. IMSI fired her the following day. Over seven months

later, learning that four other women had also complained that

Harbin had discriminated against them because of their

pregnancies, Harris contacted an EEO counselor to file a

complaint of sex discrimination. Although the record is silent

on the matter, we presume that DOJ dismissed Harris’s

complaint as untimely.

Harris subsequently filed suit in the United States District

Court for the District of Columbia, alleging that DOJ unlawfully

discriminated against her on the basis of sex. DOJ moved to

dismiss, arguing that because Harris contacted the EEO

counselor more than 45 days after being fired, she failed to

timely exhaust her administrative remedies. See 29 C.F.R. §

1614.105(a)(1). Harris responded that she should have received

an extension under subsection (a)(2) of the EEOC regulations.

See id. § 1614.105(a)(2). In support, Harris submitted an

affidavit stating that she was “not . . . notified of the time limits

for contacting an EEO counselor and was not otherwise aware

of those time limits.” Harris Aff. ¶ 2. DOJ replied that Harris

had constructive notice of the time limit, submitting an affidavit

from an EOUSA EEO officer stating that EEO posters

“specifically instruct workers that they must request EEO

counseling within 45 days of an allegedly discriminatory act”

and that the “posters . . . were available for display” when Harris
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worked at EOUSA in 2002. Milanés Aff. ¶¶ 2–3. Affidavits

from two other EOUSA employees state that “to the best of

[their] knowledge and belief,” the employees “recall[ed] seeing

an EEO poster displayed [in the break room and in the file

room] during the period of time that Carla Harris worked [at

EOUSA in 2002].” Barnes Aff. ¶ 3 (recalling poster in break

room); Noonan Aff. ¶ 3 (recalling poster in file room).

Because the parties submitted evidence outside the

pleadings, the district court treated the motion to dismiss as a

motion for summary judgment. See Harris v. Attorney Gen. of

the United States, 400 F. Supp. 2d 24, 26 (D.D.C. 2005) (citing

FED.R.CIV.P. 12(b)). Granting summary judgment to DOJ, the

court found that “the notice is legally sufficient because the 45-

day time limit is accurately presented on the poster” and that

Harris “had access to the[] rooms [in which the poster was

displayed] throughout her earlier six month employment.” Id.

at 28. As a result, the district court concluded, Harris “failed to

meet her burden of proving reasons that would support an

equitable tolling of the 45-day time limit.” Id. at 28–29.

Harris appeals. We review the district court’s grant of

summary judgment de novo. See Czekalski v. Peters, 475 F.3d

360, 362 (D.C. Cir. 2007). Summary judgment is proper only if,

“view[ing] the evidence in the light most favorable to . . .

[Harris and] draw[ing] all reasonable inferences in her favor,”

there is no genuine dispute over a material issue of fact. Id. at

363; FED. R. CIV. P. 56(c).

II.

We begin by clearing away a couple of preliminary issues.

First, the parties disagree about how subsection (a)(2) interacts

with the more demanding common law standard for equitable

tolling, which is granted only in “extraordinary and carefully
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circumscribed circumstances.” Smith-Haynie v. District of

Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998) (quoting Mondy

v. Sec’y of the Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)).

Harris argues that subsection (a)(2) represents an independent

basis for tolling. For its part, DOJ, agreeing with the district

court, argues that employees must meet the equitable tolling

standard notwithstanding subsection (a)(2). Given subsection

(a)(2)’s mandatory language—“the agency . . . shall extend the

45-day time limit”—we agree with Harris that the agency must

grant an extension if the employee shows that she “was not

notified” or “otherwise aware” of the time limit. 29 C.F.R. §

1614.105(a)(2) (emphasis added). An employee who makes

such a showing need not separately satisfy the common law

standard for equitable tolling. Cf. Teemac v. Henderson, 298

F.3d 452, 455 (5th Cir. 2002) (holding that under the terms of

subsection (a)(2), “[t]he agency must waive the requirement if

the employee lacked . . . notice of the requirement.”); Pauling v.

Sec’y of the Dep’t of the Interior, 160 F.3d 133, 136–37 (2d Cir.

1998) (recognizing “mandatory” terms of the regulation);

Jakubiak v. Perry, 101 F.3d 23, 27 (4th Cir. 1996) (same).

The parties also debate whether subsection (a)(2)’s

requirement for an extension of time—that a plaintiff show she

“was not notified of the time limits and was not otherwise aware

of them,” 29 C.F.R. § 1614.105(a)(2)—requires actual notice or

whether constructive notice will do. Relying on her affidavit,

Harris argues that because she had no actual knowledge of the

45-day requirement, she was entitled to an extension of time.

DOJ does not challenge Harris’s claim that she lacked actual

notice, arguing instead that the EEO posters gave her

constructive notice. Both parties cite Johnson v. Runyon, 47

F.3d 911 (7th Cir. 1995), which held that “subjective ignorance

alone does not automatically entitle [the plaintiff] to the

exception in [subsection (a)(2)].” Id. at 918. Although we have

yet to address this issue, every circuit to have done so has
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followed the lead of the Seventh Circuit in Johnson, which

declined to adopt a “strict theory of constructive notice” and

instead set out a two-step inquiry: (1) whether “notification of

the time requirements was provided,” and (2) whether the

notification was “reasonably geared to inform the complainant

of the time limits.” Id. (internal quotation marks omitted); see,

e.g., Teemac, 298 F.3d at 456 & n.9; Sizova v. Nat’l Inst. of

Standards & Tech., 282 F.3d 1320, 1327 (10th Cir. 2002);

Jakubiak, 101 F.3d at 27. We think this approach makes sense.

For one thing, subsection (a)(2) itself speaks of notification.

Moreover, it cannot be that an employee claiming to have been

unaware of the 45-day time limit would be automatically

entitled to an extension even though the agency, through posters,

employee handbooks, orientation sessions, etc., made

conscientious efforts to advise its employees of the time limit.

Nonetheless, we cannot say that no reasonable jury, viewing

the evidence in the light most favorable to Harris and drawing

all inferences in her favor, could conclude that she lacked

constructive notice of the 45-day requirement. To begin with,

the postersthemselves are not part of the record, and none of the

affidavits includes the posters’ actual language. The affidavits

state only that the posters were directed to “workers.” Milanés

Aff. ¶¶ 2–3; Noonan Aff. ¶ 3. Without the actual text, we have

no way of determining whether the posters were “reasonably

geared” to notify Harris—an independent contractor—that she

was subject to the same 45-day time limit that applies to federal

employees, see, e.g., Sizova, 282 F.3d at 1327 (finding that EEO

posters at National Institute of Standards and Technology

directed to persons “on the job” were not reasonably geared to

notify plaintiff, a university fellow who believed herself to be an

employee of the university, not the Institute), rather than the

longer period of time available to private sector employees, see

42 U.S.C. § 2000e-5(e)(1) (establishing 180-day time limit for

private sector employees); 29 C.F.R. § 1601.13(a)(4)(ii)
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(establishing 300-day time limit for private sector employees

where the EEOC has a worksharing agreement with a state or

local agency). 

In addition to failing to recite the posters’ actual language,

the affidavits are insufficient to determine whether the posters

were displayed in a manner “reasonably geared” to inform

Harris of the time limit. For example, the two affidavits

asserting that EEO posters were displayed at EOUSA when

Harris worked there say only that the posters were displayed in

a break room and file room “available to all employees and

contractors . . . during the period of time that Carla Harris

worked [there].” Barnes Aff. ¶ 3; see also Noonan Aff. ¶ 3. But

the mere fact that these rooms were available to

contractors—absent information such as the placement of the

posters and the number of contractors who entered these rooms,

as well as the frequency with which they did so—tells us

nothing about the likelihood that Harris herself was ever in these

rooms or, if so, whether she should have seen the posters. As

the Seventh Circuit has explained, “[t]he presence or absence of

posted notices does not, standing alone, determine whether the

limitations period should be tolled.” Johnson, 47 F.3d at 918

(internal quotation marks omitted) (quoting Cano v. U.S. Postal

Serv., 755 F.2d 221, 222–23 (1st Cir. 1985)).

All three affidavits, moreover, relate to 2002, when Harris

was employed in a different EOUSA office. Barnes Aff. ¶ 2;

Milanés Aff. ¶ 3; Noonan Aff. ¶ 2. They say nothing about the

presence of posters on May 31, 2003, the day Harris’s new

contract assignment started and the day before she was fired.

Harris’s potential exposure to posters at a different EOUSA

office in a separate contract assignment seven months prior to

her firing is insufficient to eliminate a genuine issue of material

fact regarding her notice of the 45-day requirement. 
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Furthermore, we are unsure whether the posters were even

posted during Harris’s previous six-month contract assignment.

Two of the affidavits state, “[t]o the best of my knowledge and

belief, I recall seeing an EEO poster displayed.” Barnes Aff.

¶ 3; Noonan Aff. ¶ 3. Yet we have expressly held that affidavits

based upon belief are inadequate to support a motion for

summary judgment. Londrigan v. FBI, 670 F.2d 1164, 1174

(D.C. Cir. 1981) (“[Rule 56(e)’s] requirement of personal

knowledge by the affiant is unequivocal, and cannot be

circumvented. An affidavit based merely on information and

belief is unacceptable.” (footnotes omitted)). To be sure, the

two affidavits use the word “knowledge,” but they never say that

affiants “saw” the posters. Instead, they say only that, “to the

best of” the affiants’ knowledge, they “recall” seeing them.

This, together with the use of the word “belief,” leaves us

wondering whether the affiants actually saw the EEO posters. 

DOJ’s third affidavit, from an EEO officer, is equally

ambiguous as to whether the posters were actually displayed.

The affidavit states only that EEO posters were “available for

display by EOUSA offices in 2002.” Milanés Aff. ¶ 3

(emphasis added). It never says that posters were in fact

displayed, much less that they were displayed in a location

“reasonably geared” to notify Harris.

We reverse the district court’s grant of summary judgment

and remand for further proceedings consistent with this opinion.

So ordered.