USCA11 Case: 22-12818 Document: 17-1 Date Filed: 05/01/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12818
Non-Argument Calendar
____________________
IVAN E. APONTE,
Plaintiff-Appellant,
versus
SECRETARY OF THE ARMY,
ATTORNEY GENERAL OF THE UNITED STATES,
U.S. ATTORNEY’S OFFICE,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
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2 Opinion of the Court 22-12818
D.C. Docket No. 4:21-cv-00193-CDL
____________________
Before WILSON, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
Ivan E. Aponte, a former civilian employee of the Army,
sued the Secretary of the Army, the U.S. Attorney General, and the
U.S. Attorney’s Office for discrimination in violation of Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in
Employment Act (“ADEA”). Aponte, proceeding pro se, appeals
the district court’s dismissal of his complaint for failure to exhaust
his administrative remedies. On appeal, Aponte argues that
unforeseen extraordinary circumstances prevented him from
timely filing his formal complaint with the Equal Employment
Opportunity (“EEO”) Office. After thorough review, we affirm.
I. BACKGROUND
On October 1, 2018, the Army hired Aponte to work as an
internal medicine physician at the Martin Army Community
Hospital at Fort Benning, Georgia. A few months later, on
February 15, 2019, the Army terminated Aponte’s employment for
failure to maintain appropriate clinical privileges.
On March 6, 2019, Aponte contacted an EEO Counselor in
the Army’s EEO Office. Aponte alleged that he was discriminated
against on the basis of his race, sex, age, and national origin and
subjected to a hostile work environment. On April 4, 2019, the
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22-12818 Opinion of the Court 3
EEO Office held its final interview with Aponte. At that time, the
EEO Counselor advised Aponte in writing of his right to file a
formal complaint of discrimination within 15 days.
On April 20, 2019, Aponte mailed his formal complaint,
which was received by the EEO Office on April 24, 2019. On May
2, 2019, the EEO Office advised Aponte that it was dismissing his
formal complaint because it was not timely filed.
On December 15, 2020, Aponte, proceeding pro se, filed this
lawsuit. A few weeks later, on January 8, 2021, Aponte amended
his complaint. Aponte alleged that, while employed at Fort
Benning, the Army discriminated against him because of his race,
sex, national origin, religion, age, and protected conduct and
created a hostile work environment, in violation of Title VII and
the ADEA.
On November 22, 2021, the defendants moved to dismiss
the amended complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6), for Aponte’s failure to exhaust administrative
remedies before filing suit. In opposition, Aponte urged the district
court to apply equitable tolling because (1) his daughter had been
sexually assaulted in late March 2019, (2) he fully cooperated with
the EEO Office’s investigation of his discrimination claims, (3) an
EEO Office employee refused to accept his formal complaint on
April 19 when he visited the EEO Office and instead told him to
await an email with “further instructions,” and (4) that same EEO
Office employee did not respond when Aponte asked if the 15-day
deadline could be extended because it fell on Good Friday.
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On May 5, 2022, the district court ordered the parties “to
conduct very limited discovery on the issue of what
precisely . . . happened on April 19, 2019—who Aponte met, what
(if anything) Aponte tried to file, and what Aponte was told.” The
district court also ordered the parties to file supplemental briefing
after the close of the limited discovery period. Aponte apparently
did not participate in discovery, and he filed an untimely
supplemental brief.
On July 7, 2022, the district court granted defendants’
motion to dismiss, finding that (1) Aponte had mailed his complaint
to the EEO Office on April 20, which was one day after the deadline
of April 19, and (2) Aponte had shown no extraordinary
circumstances that warranted the application of equitable tolling.
The district court entered final judgment, and Aponte timely
appealed.
II. STANDARD OF REVIEW
“We review de novo the district court’s grant of a Rule
12(b)(6) motion to dismiss for failure to state a claim, accepting the
complaint’s allegations as true and construing them in the light
most favorable to the plaintiff.” Newbauer v. Carnival Corp.,
26
F.4th 931, 934 (11th Cir. 2022) (quotation marks omitted). We
review de novo a district court’s denial of equitable tolling, but we
are bound by the district court’s findings of fact unless they are
clearly erroneous. Cabello v. Fernandez-Larios,
402 F.3d 1148,
1153 (11th Cir. 2005).
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III. DISCUSSION
A. Time Requirements
Before an aggrieved federal employee may seek relief
through the filing of a civil action in federal court, he or she must
first seek relief in the agency that has allegedly engaged in
discrimination. See 42 U.S.C. § 2000e-16(b). “This requirement is
not a technicality; rather, it is part and parcel of the congressional
design to vest in the federal agencies and officials engaged in hiring
and promoting personnel primary responsibility for maintaining
nondiscrimination in employment.” Grier v. Sec’y of Army,
799
F.2d 721, 724 (11th Cir. 1986) (alteration adopted) (quotation marks
omitted).
The EEO Commission has promulgated regulations that
govern employment at various federal agencies. See
29 C.F.R.
§ 1614.101 et seq. These regulations set forth the procedures and
time deadlines that employees must follow in presenting
discrimination claims to federal agencies. Ramirez v. Sec’y, U.S.
Dep’t of Transp.,
686 F.3d 1239, 1243 (11th Cir. 2012). These
regulations provide that an aggrieved employee alleging
discrimination must consult an EEO Counselor within 45 days of
the effective date of the alleged discriminatory personnel action.
29
C.F.R. § 1614.105(a)(1). The purpose of this requirement is to
allow the agency the opportunity to investigate the claim internally
and “try to informally resolve the matter.” See
id. § 1614.105(a).
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Within 30 days of the date the employee first contacted the
EEO Office, the EEO Counselor must conduct a final interview
with the employee. Id. § 1614.105(d). If the employee’s claims
remain unresolved, then the EEO Counselor must notify the
employee in writing of his right to file a formal discrimination
complaint. Id. 1 Aponte does not dispute that he received notice of
that right on April 4, 2019.
Then, within 15 days of receiving that written notice from
the EEO Counselor, the employee must file his formal complaint
with the agency against which he alleges discrimination. Id.
§ 1614.106(a)–(c).
The employee’s failure to comply with any of these time
limits requires the agency to dismiss the complaint. Id.
§ 1614.107(a)(2). However, the administrative deadlines are not
jurisdictional prerequisites and are subject to waiver, estoppel, and
equitable tolling. Id. § 1614.604(c).
Generally, equitable tolling of a limitations period applies
when the plaintiff demonstrates that an inequitable event
prevented his timely action. Booth v. Carnival Corp.,
522 F.3d
1148, 1150 (11th Cir. 2008). In other words, “equitable tolling
1 The notice must inform the employee “of the right to file a discrimination
complaint within 15 days of receipt of the notice, of the appropriate official
with whom to file a complaint[,] and of the [employee’s] duty to assure that
the agency is informed immediately if the [employee] retains counsel or a
representative.”
29 C.F.R. § 1614.105(d).
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requires the party seeking tolling to prove (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958, 971 (11th Cir.
2016) (quotation marks omitted). “In determining whether a
plaintiff meets this burden, we must keep in mind that equitable
tolling is an extraordinary remedy which should be extended only
sparingly.” Arce v. Garcia,
434 F.3d 1254, 1261 (11th Cir. 2006)
(cleaned up).
B. Aponte’s Formal Complaint Was Untimely and Equitable
Tolling Was Not Warranted
Aponte’s formal complaint was not timely filed with the
Army’s EEO Office. Because Aponte received written notice of his
right to file a formal complaint on April 4, 2019, the 15-day deadline
for filing a formal complaint was April 19, 2019. See
29 C.F.R.
§ 1614.604(d). Although Aponte completed and signed his formal
complaint on April 19, it was not postmarked until April 20 or
received until April 24. Under the regulations, a document is
“deemed timely if it is received or postmarked before the
expiration of the applicable filing period.”
Id. § 1614.604(b).
Accordingly, Aponte’s mailing (and thereby filing) of his formal
complaint on April 20 fell outside the 15-day period and was
untimely under
29 C.F.R. § 1614.106(b).
The crux of Aponte’s appeal, however, is that extraordinary
circumstances should excuse his late filing. Specifically, Aponte
argues that (1) he was “very cooperative” with the EEO Office
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investigation; (2) the deadline for filing his formal complaint fell on
a religious holiday (i.e., Good Friday), so he should be given a
reasonable accommodation; and (3) the Army misled him. 2 Based
on these reasons, Aponte contends that “there is enough plausible
data to apply the equitable doctrine in [his] favor.”
We disagree. In his supplemental brief before the district
court, Aponte explained that he went to the EEO Office at Fort
Benning on April 19, and an EEO Office employee expressly
encouraged him to mail his formal complaint that day. On appeal,
Aponte again acknowledges that he was told to mail his formal
complaint on April 19. Yet Aponte did not mail the formal
complaint that day as he was encouraged to do. Instead, Aponte
waited until the next day (April 20) to mail it.
Aponte offers no explanation for why he did not mail the
formal complaint on April 19. Since Good Friday is not a legal
holiday, see Fed. R. Civ. P. 6(a)(6), the U.S. Postal Service was
open, and Aponte did not show that he was prevented from
accessing a postal facility on April 19.
2 In addition, Aponte makes a passing reference to the fact that he started
“medications due to a disability on April 13, 2019.” To the extent Aponte is
offering this information as an additional reason in support of his equitable
tolling argument, we will not entertain it on appeal because he did not raise it
before the district court. Bryant v. Jones,
575 F.3d 1281, 1308 (11th Cir. 2009)
(“[L]egal theories and arguments not raised squarely before the district court
cannot be broached for the first time on appeal.”).
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Moreover, Aponte offers no compelling explanation as to
how the deadline being on a religious holiday prevented him from
mailing the formal complaint in the 15 days before the April 19
deadline. See, e.g., Sandvik v. United States,
177 F.3d 1269, 1272
(11th Cir. 1999) (rejecting a party’s equitable-tolling argument
where the party’s “motion was late because his lawyer sent it by
ordinary mail from Atlanta less than a week before it was due in
Miami” and noting that “the problem was one that [the party’s]
counsel could have avoided by mailing the motion earlier”).
Lastly, the district court found that Aponte “did not present
any evidence that the Army misled him in any way or placed
unreasonable obstacles in his way that prevented him from filing
his complaint in a timely manner.” That finding is supported by
the record and is not clearly erroneous.
IV. CONCLUSION
For these reasons, we conclude that Aponte has not met his
burden of showing that some extraordinary circumstance stood in
the way of his timely filing the formal complaint. Therefore, we
affirm the district court’s dismissal of Aponte’s complaint for failure
to exhaust his administrative remedies.
AFFIRMED.
