ÁNGEL A. Vázquez-RIVERA, Plaintiff, Appellant,
MAGDA FIGUEROA; NANNETTE LÓ PEZ-SILVA; DEPARTMENT OF JUSTICE; UNITED STATES OF AMERICA; JOHN D. CUSHMAN; GUNNAR G.F. PEDERSEN; JOSÉ L. ORTEGA; U.S. ARMY; CONJUGAL PARTNERSHIP ORTEGA-LÓ PEZ, Defendants, Appellees
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José Antonio Fusté, U.S. District Judge.
Carlos R. Rodríguez-García, with whom Rodrí guez-Garcí a, P.S.C., was on brief for appellant.
Ginette L. Milané s, with whom Rosa Emilia Rodrí guez-Vé lez, United States Attorney, Nelson Pé rez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, were on brief for appellee.
Before Lynch, Chief Judge, Torruella and Selya, Circuit Judges.
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.
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 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 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 ...