IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-5768

 

JOEL G. PACHECO, JR.,

Plaintiff-Appellant,

versus

DONALD B. RICE, Secretary of

Air Force, ET AL.,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Western District of Texas

 

 (July 1, 1992)

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Joel Pacheco filed this action under Title VII of the Civil

Rights Act of 1964, alleging that he was forced to resign from his

job because of his race. The district court dismissed the suit,

finding Pacheco's claim barred because he failed to initiate the

administrative process within the applicable thirty day period. We

affirm.

I.

In 1985, the United States Air Force employed Pacheco as an

equal employment opportunity officer at Kelly Air Force Base. The

security police at Kelly investigated complaints that Pacheco had

sexually harassed female personnel at the base. Several women
 

1 We need not consider whether the supervisors were

properly dismissed because Pacheco conceded this point below.

2

filed sworn statements that Pacheco had offered them money for

sexual favors and persisted in making unwelcome sexual advances.

Pacheco was given an opportunity to respond to these allegations.

His supervisors evaluated the evidence and decided that he should

be fired. They notified him of their final decision on July 25,

1985. Pacheco resigned the next day.

Three years later, Pacheco allegedly discovered that a

similarly situated Anglo employee of the Air Force, who had also

been accused of sexual harassment, had been investigated under

different procedures and ultimately was not discharged. Within

thirty days, Pacheco filed an informal complaint of discrimination

with an Air Force EEO officer, alleging that he had been forced to

resign because he was Hispanic. He filed a formal complaint the

next month. The Air Force found the complaint untimely. Pacheco

appealed to the Equal Employment Opportunity Commission, which also

found his complaint time barred. He then filed suit in federal

district court against his supervisors and the Secretary of the Air

Force. The district court dismissed the supervisors as improper

defendants and dismissed the complaint because of the

administrative untimeliness, among other reasons. Pacheco

appeals.1

II.

The remedy for claims of employment discrimination by federal

employees under Title VII is provided in 42 U.S.C. § 2000e-16(a)-
3

(e). Henderson v. United States Veterans Admin., 790 F.2d 436, 439

(5th Cir. 1986). Under this legislative scheme, federal employees

must first exhaust their administrative remedies before they may

bring suit in federal court. Hampton v. Internal Revenue Service,

913 F.2d 180, 182 (5th Cir. 1990). The EEOC's regulations provide

that an agency may accept complaints only if 

[t]he complainant brought to the attention of the Equal

Employment Opportunity Counselor the matter causing

him/her to believe he/she had been discriminated against

within 30 calendar days of the date of the alleged

discriminatory event, the effective date of an alleged

discriminatory personnel action, or the date that the

aggrieved person knew or reasonably should have known of

the discriminatory event or personnel action.

29 C.F.R. § 1613.214(a)(1)(i) (1991).

Failure to notify the EEO counselor in timely fashion may bar a

claim, absent a defense of waiver, estoppel, or equitable tolling.

Henderson, 790 F.2d at 439-40; Nealon v. Stone, 958 F.2d 584, 589

(4th Cir. 1992); Benford v. Frank, 943 F.2d 609, 612 (6th Cir.

1991).

Pacheco argues that the thirty day period for notifying an EEO

counselor of his claim did not begin to run until July of 1988,

when he learned that the Air Force had treated an Anglo employee

more favorably than him. He did not perceive that the

circumstances surrounding his discharge were discriminatory until

he discovered this disparate treatment. Because he contacted an

EEO counselor within thirty days of the date he obtained this

information, he contends that his claim is not barred.

We disagree. Section 1614.214(a)(1)(i) requires notice to an

EEO counselor within thirty days of the date when the complainant
4

knows or reasonably should know of "the discriminatory event or

personnel action." Notification within thirty days of the time a

plaintiff apprehends that an adverse employment decision was

motivated by a discriminatory purpose is not sufficient. The only

"discriminatory event or personnel action" of which Pacheco can

complain is the decision to fire him in July of 1985. Pacheco was

given notice of this decision when it was made. The language of

§ 1613.214(a)(1)(i) indicates that the thirty day period for

notifying an EEO counselor began at latest on the effective date of

Pacheco's termination. Pacheco's complaint was three years late.

We have rejected arguments similar to Pacheco's with respect

to time limits in other provisions of Title VII and in other

employment discrimination laws. See Merrill v. Southern Methodist

University, 806 F.2d 600, 605 (5th Cir. 1986) (180 day limitations

period of 42 U.S.C. § 2000e-5(e) begins to run when a plaintiff

knows or reasonably should know that the discriminatory act has

occurred, not when he or she first perceives that a discriminatory

motive caused the act); Chapman v. Homco, 886 F.2d 756, 758 (5th

Cir. 1989) (two year limitations period of 29 U.S.C. § 626(e)(1)

begins to run when plaintiff is notified that his employment is

terminated, not when he learns that the termination was based on

discriminatory factors). To allow plaintiffs to raise employment

discrimination claims whenever they begin to suspect that their

employers had illicit motives would effectively eviscerate the time

limits prescribed for filing such complaints.
 

2 Before its amendment in 1987, the regulation provided

that a federal employee's discrimination complaint may be

processed only if "[t]he complainant brought to the attention of

the Equal Employment Opportunity Counselor the matter causing him

to believe he had been discriminated against within 30 calendar

days of the date of that matter, or, if a personnel action,

within 30 calendar days of its effective date." 29 C.F.R. §

1613.214(a)(1)(i) (1987).

 

3 The Supreme Court has indicated that "the same

rebuttable presumption of equitable tolling applicable to suits

5

In Jensen v. Frank, 912 F.2d 517, 520 (1st Cir. 1990), the

First Circuit confronted the same time limit that is at issue here,

albeit in its pre-1987 form.2 Like Pacheco, Jensen was a federal

employee who learned after his discharge that a similarly situated

co-worker of a different national origin was treated more leniently

than he. Because this co-worker's case led him to suspect that his

discharge was discriminatory, he argued that the thirty day period

did not begin to run until he found out about his co-worker's more

favorable treatment. The First Circuit rejected this argument. It

concluded that whatever role discrimination may have played in the

lenient treatment of Jensen's fellow employee, it could not fairly

be characterized as an event triggering Jensen's obligation to

contact an EEO officer. The same logic applies here. We find

nothing in the amended version of § 1613.214(a)(1)(i) that mandates

a different result. 

We recognize that the time limit established by this

regulation is subject to the traditional equitable defenses of

waiver, estoppel, and equitable tolling. See Henderson, 790 F.2d

at 440; Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981).3
against private defendants should also apply to suits against the

United States." Irwin v. Veterans Admin., 111 S. Ct. 453, 457

(1990).

6

Equitable tolling is appropriate when, despite all due diligence,

a plaintiff is unable to discover essential information bearing on

the existence of his claim. Rhodes v. Guiberson Oil Tools Div.,

927 F.2d 876, 878 (5th Cir. 1991); Cada v. Baxter Healthcare Corp.,

920 F.2d 446, 452 (7th Cir. 1990); see also Reeb v. Economic

Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975).

Indeed, the EEOC has expressly provided a mechanism by which the

thirty day time limit on employment discrimination complaints by

federal employees may be extended. Its regulations say that "[t]he

agency shall extend the time limits in this section when the

complainant shows that he/she was not otherwise aware of them, was

prevented by circumstances beyond the complainant's control from

submitting the matter within the time limits; or for other reasons

considered sufficient by the agency." 29 C.F.R. § 1613.214(a)(4).

The doctrine of equitable tolling has its limits, however. It

does not permit plaintiffs to suspend the time for filing

discrimination complaints indefinitely when they discover instances

of disparate treatment of other employees months or years after

their discharge. It is to be expected that some relevant facts

will come to light after the date of an employee's termination --

one purpose of filing an administrative complaint is to uncover

them. See Olson v. Mobil Oil Corp., 904 F.2d 198, 203 (4th Cir.

1990). The requirement of diligent inquiry imposes an affirmative

duty on the potential plaintiff to proceed with a reasonable
7

investigation in response to an adverse event. Compare Jensen v.

Snellings, 841 F.2d 600, 607 (5th Cir. 1988).

The gist of Pacheco's complaint was that the investigation of

the sexual harassment charges against him was not performed in

accordance with Air Force regulations and policies, whereas similar

investigations involving Anglo employees were done by the book,

with more favorable results for the employees. There is no reason

that Pacheco could not have raised this issue at the time he

resigned. The procedures governing disciplinary proceedings were

well established at the time. As a career EEO officer, Pacheco was

undoubtedly far more familiar with them than most Air Force

employees. If Pacheco suspected that he was being singled out

because of his race, he could easily have complained or sought

information as to how disciplinary proceedings were supposed to be

handled. Inquiry into past disciplinary proceedings would have

been proper. Instead, he sat on his rights for three years. This

was not a case for equitable tolling.

Finally, Pacheco's argument that the Civil Rights Act of 1991

somehow modifies the time limit imposed by § 1613.214(a)(1)(i) is

without merit. He seems to rely on the amended version of 42

U.S.C. § 2000(e)-5(e), that an unlawful employment practice occurs

with respect to seniority systems when the seniority system is

adopted, when an individual becomes subject to it, or when a person

is injured by the application of the seniority system. Even if

this provision were to be applied retroactively, a question we do
8

not address here, it is inapplicable in this case where no

seniority system is at issue. 

AFFIRMED.