OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Washington, D.C. 20540-1999
CHARLES A. HUGHES, III,
v. Case No. 98-SN-56 (RP)
THE OFFICE OF THE
UNITED STATES SENATE
SERGEANT AT ARMS,
Before the Board of Directors: Glen D.
Nager, Chair; Virginia A. Seitz, Member.
DECISION OF THE BOARD
Appellant, Charles A. Hughes, III (Hughes),
appeals from the decision of the Hearing Officer dismissing his
complaint for failure to comply with the time requirements of section
402(a) of the Congressional Accountability Act (CAA or Act), 2 U.S.C.
§ 1402(a). The Board concludes that Hughes failed to comply with
the time limits in the Act and that the Hearing Officer did not
abuse her discretion when she denied him equitable tolling of those
time limits. The Board thus affirms the judgment of the Hearing
According to Hughes, the facts are as follows:
Hughes worked for almost 28 years in the Senate Services Department,
a print shop/bindery, within the Office of the Senate Sergeant at
Arms (SSA). Sworn Statement of Charles A. Hughes (April 21, 1999)
(Statement) at ¶ ¶ 2, 3. Hughes alleges that, on several occasions,
he complained to SSA management, human resources personnel, and
congressional offices about his Department's mismanagement, illegal
acts, and unsafe working conditions, including violations of the
OSHAct, as made applicable by the CAA. Transcript (tr.) at 20-21,
27, 50, 51; Statement at ¶ 3. As a result, he asserts, on October
2, 1997, he was suspended without cause; on October 20, 1997, he
was removed from his job as night shift supervisor and isolated
in a day job without duties; and on November 12, 1997, he was officially
notified that he would be terminated, effective December 19, 1997,
and therefore took retirement. Statement at ¶ 3.
Hughes acknowledges that he had a general familiarity
with the CAA and the Office of Compliance (Office). He had received
a memorandum about the CAA in 1995 and had been mailed brochures
about the Office. He saved some of these materials in case he needed
them, but did not read them in detail. Tr. at 46-47; Statement at
¶ 4. In addition, Hughes had experience in filing workplace grievances
through other channels. Tr. at 27, 50-52, 57-58. Hughes had taken
seminars in labor and employment law provided for SSA supervisors,
tr. at 54, but he had declined to attend a seminar on the CAA because
it was scheduled outside of his normal work hours, tr. at 45.
Hughes claims that, in October 1997, fearing
that he was about to be fired, he telephoned the Office to "get
a brief idea of what they were set up to do" and was told that he
should speak to an Office counselor. Tr. at 21. He met with a counselor
on or about October 20, 1997 for about 45 minutes. Statement at
¶ 6. According to Hughes, he told the counselor that he needed help
and that he thought that he was about to be terminated. Id. He brought
documentation of his complaints of workplace violations and described
incidents which he believed constituted, inter alia, safety violations
and illegal discrimination. Tr. at 23. The counselor allegedly told
Hughes that he had "a weak discrimination case," tr. at 27, 45;
and that there was nothing that the Office could do for him, tr.
at 31; Statement at ¶ 6. The counselor tried several times to explain
to Hughes what he considered technicalities about the Act, which
he did not understand. Tr. at 30, 31, 45. The counselor gave Hughes
a copy of the Procedural Rules of the Office (Procedural Rules or
Rules). Tr. at 36. Hughes kept this copy of the Rules, but did not
read it until more than a year later. See tr. at 41, 53. Hughes
does not recall the counselor explaining how to make a formal request
for counseling; describing the processes and time limits for counseling
and mediation; providing him with a form to file requesting formal
counseling; or otherwise inquiring whether he wished to initiate
the counseling process. Tr. at 31; Statement at ¶ 6.
Hughes alleges that approximately two weeks
later he spoke to the counselor briefly by telephone to arrange
to pick up the materials he had left with her. Tr. at 32-34; Statement
at ¶ 8. He maintains that he told her that he had additional reason
to believe that he was about to be fired. Tr. at 32-33; Statement
¶ 8. Hughes came to the Office about ten days later and the counselor
handed him his papers, again stating that he had a weak discrimination
case. Tr. at 33-34. She did not provide him with additional information
about his rights under the CAA or the Office's processes. Tr. at
34; Statement at ¶ 8.
On November 12, 1997, Hughes received notice
that he would be terminated. Nonetheless, he had no further contact
with the Office for over a year. He did not inform the Office of
his forced retirement or inquire further about counseling or mediation.
Tr. at 42. During the intervening period, he consulted by telephone
or in person with approximately a dozen attorneys, taking with him
to meetings the copy of the Procedural Rules that the counselor
had given him. Tr. at 36; Statement at ¶ 9. But Hughes asserts that
he did not read the Rules during that period and did not learn about
the time limits for making claims under the Act until he met with
his present attorney on or about November 18, 1998. See tr. at 41.
Apparently at the suggestion of his present
attorney, Hughes met again with the Office counselor on November
24, 1998. Tr. at 38; Statement at ¶ 9. At that meeting, Hughes was
given and filled out a form entitled, "Formal Request for Counseling."
Statement at ¶ 11. Hughes was also given another copy of the Procedural
Rules. Hughes and the counselor reviewed a memorandum that Hughes'
attorney had prepared describing Hughes' previous contact with her.
Statement at ¶ 10. The counselor took issue with the memorandum's
characterization of their prior meeting as formal counseling, stating,
according to Hughes, "you didn't make a claim; it was up to you
and you didn't make a claim." Tr. at 38. Hughes avers that, if the
counselor had given him the counseling request form at his first
meeting with her, he would have completed the paperwork "just to
get the help." Tr. at 39.
On November 27, 1998, the Office mailed Hughes
a Notification of End of Counseling Period," by certified mail,
return receipt requested. Office Of Compliance Certification (April
2, 1999) (Certification) at ¶ 2. Hughes acknowledged receipt on
November 30, 1998 and requested mediation on December 1, 1998. Id.
at ¶ 2-3. Hughes testified that he read the Procedural Rules for
the first time as he was preparing for mediation. Tr. at 41. Hughes
received a Notification of the End of Mediation on January 5, 1999.
Id. at ¶ 4. When mediation failed, Hughes filed a complaint with
In his complaint, Hughes alleged that the SSA
violated section 207(a) of the CAA, ("Prohibition Of Intimidation
Or Reprisal"), 2 U.S.C.§ 1317(a), by forcing him to retire in reprisal
for his complaints about violations of the OSHAct, as made applicable
by the CAA. The SSA moved to dismiss the complaint on the ground
that Hughes had failed to request counseling within 180 days after
the date of the alleged violation, as required by section 402(a)
of the Act, 2 U.S.C. § 1402(a). After considering the pleadings,
Hughes' sworn statement and testimony, and the briefs and argument
of counsel, the Hearing Officer granted the motion and dismissed
the complaint with prejudice. Memorandum of Decision and Order Dismissing
the Complaint, (Decision) No.98-SN-56 (RP) (May 3, 1999) at 1.
The Hearing Officer concluded that Hughes did
not comply with the time requirements of the Act because more than
180 days had elapsed between the events giving rise to his retirement
on December 19, 1997, and his November 24, 1998 request for counseling.
Id. at ¶ 1.b. She found that, despite his timely initial contact
with the Office on October 20, 1997, Hughes failed to "follow through
on counseling, mediation, and procedures outlined in the material
given to him." Id. at ¶ 1.c.
The Hearing Officer rejected Hughes' argument
that the October 20, 1997 meeting with the counselor was a request
for counseling as contemplated by section 402(a) of the Act. Id.
at ¶ 2. Rather, she found that "he came to the Office of Compliance
seeking advice . . . . and left feeling discouraged about the 'technicalities'
of the Act." Id. at ¶ 2. b. She further concluded that Hughes "did
not behave as if he had initiated a counseling process." Id. at
¶ 2. c. She pointed out that, by his own admission, Hughes had failed
to read the written materials the counselor had given him or to
contact the Office, except to pick up his documents, for over a
year after his initial October 1997 meeting: "He did not notify
the Office that he wished to pursue any matters which he had discussed
on October 20, 1997 until he filed a request for counseling on November
24, 1998." Id.
The Hearing Officer also concluded that there
was no legal or equitable basis for tolling the limitations periods
in the Act. Id. at ¶ 3. She found that Hughes was educated and capable
of comprehending what rights were available to him, was generally
informed about his rights under the Act, and was able to pursue
those rights. Id. at ¶ 3. a-c. And she determined that the limitations
period could not be equitably tolled because "[t]he Office of Compliance
did not mislead Mr. Hughes or fail in its duties to him." Id. at
¶ 3. d.
The Hearing Officer concluded that, even assuming
the facts asserted by Hughes were true, he had failed to satisfy
the time requirements of the CAA and that the limitations periods
in the Act should not be tolled. We must decide whether these conclusions
are "arbitrary, capricious, an abuse or discretion, or otherwise
not consistent with law." 2 U.S.C. § 1406(c)(1).
To initiate a timely proceeding under the CAA,
an employee must request counseling within 180 days of the alleged
violation of the Act. 2 U.S.C. §1402(a). The Hearing Officer found,
and Hughes acknowledges, that the complaint at issue arises from
a counseling request that was filed substantially more than 180
days after the alleged violations of the Act. On November 12, 1997,
Hughes received official notice that he would be terminated. See
Statement at ¶ 3. Assuming that to be the date of the violation,
see Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), Hughes
had to request counseling by May 11, 1998. This complaint arises
from a formal request for counseling which Hughes made on November
24, 1998, see Certification at ¶ 2 - i.e., 197 days too late.
Hughes asserts, however, that he timely requested
counseling under the Act on October 20, 1997, and that this request
should toll the Act's time limits so as to make timely the complaint
arising out of his November 24, 1998 request for counseling. In
making this assertion, Hughes acknowledges that he failed to pursue
the mandatory processes of the Act after his October 20, 1997 meeting
with the counselor. He did not seek mediation within fifteen days
of the end of the thirty-day counseling period; a fortiori, he did
not file a complaint with the Office or a civil action within ninety
days of the end of a mediation period arising out of that alleged
request for counseling. See 2 U.S.C. §§ 1403, 1404. But he attributes
his omissions to the Office's failure to provide him with the necessary
information at the October 20, 1997 meeting with the counselor and,
on that basis, maintains that he is entitled to equitable tolling
of the time limit to request counseling for a period of close to
a year. We find no abuse of discretion in the Hearing Officer's
conclusion that Hughes is not entitled to toll the time limits in
the Act for so long a period.
Preliminarily, we note that the October 20,
1997 date precedes the date of the principal violation of the Act
alleged by Hughes - his wrongful forced retirement in lieu of termination.
Thus, Hughes could not at this meeting have initiated counseling
on his claim that he was unlawfully forced to retire.
Hughes attempts to avoid this problem by asserting
that counseling was "ongoing" throughout the thirty-day period and
therefore that he was still in counseling on November 12, 1997,
when the notice of termination occurred. This argument is difficult
to square with Hughes' failure later to inform the counselor that
he had in fact been forced to retire, especially in light of the
Act's clear purpose to ensure that parties utilize the Act's mechanisms
to adjust their disputes.
For purposes of decision, however, we
will assume without deciding that Hughes requested counseling on
October 20, 1997; we also assume without deciding that Hughes may
invoke the doctrine of equitable tolling under the Act;
(2) and we assume without deciding that the Office's alleged
conduct might support some period of equitable tolling.
(3) Nonetheless, on the facts proffered by Hughes, he
is not entitled to equitable tolling of the Act's time limits for
a period long enough to make timely his November 24, 1998 request
for counseling, because Hughes plainly failed to exercise due diligence
to protect his rights during the period at issue.
Even where a plaintiff has some justification
for a late filing, he does not receive a limitless extension of
the applicable limitations period. Rather, it is well established
that a plaintiff seeking equitable tolling of a limitation period
is obligated to act with due diligence to protect his or her rights.
See Irwin v. Dep't of Veterans Affairs, 498 U S. 89, 96 (1990) ("We
have generally been much less forgiving in receiving late filings
where the claimant failed to exercise due diligence in preserving
his legal rights."), citing Baldwin County Welcome Center v. Brown,
466 U S. 147, 151 (1984)). (4) Thus,
the litigant who seeks to rely on equitable tolling "must sue as
soon after the statute of limitations has expired as he obtains
the information or would have done so had he been reasonably diligent."
Wolin v. Smith Barney Inc., 83 F 3d 847, 852 (7th Cir.
1996) (emphasis added). See id. at 853 ("in a case of equitable
tolling the plaintiff must be continuously diligent and sue (if
he is beyond the statutory period) as soon as it is practicable
for him to do so."). (5)
In the circumstances here, we agree with the
Hearing Officer that it was not reasonable for Hughes to sleep on
his claims for close to a year. Hughes is well educated and capable.
He had a copy of the Office's Rules. There, in relatively straightforward
language, the processes of the Act are explained and the time limits
are clearly set forth. See Rule § 2.03. The Rules further explain
that once the employee has formally requested counseling, the employee
has the responsibility for going forward at all times. See Rule
2.03(k) ("Duty to Proceed. An employee who initiates a proceeding
under this part shall be responsible at all times for proceeding,
regardless of whether he or she has designated a representative.").
Yet, for a period of almost a year after his last contact with the
Office and after his retirement, Hughes failed to make any inquiry
whatsoever about his case. He did not notify the Office of his notice
of termination or forced retirement; he did not inquire about further
counseling; he did not ask about mediation. He did not even consult
the brochures or the Rules in his possession. If, as he states,
Hughes believed that he was engaged in counseling under the Act,
at some reasonable time after the thirty-day counseling period,
Hughes had a duty to inform the Office of his forced retirement
or to make an inquiry about proceeding further under the Act or
to look at the Rules. He failed to do so. (6)
Accordingly, even assuming that Hughes initiated
counseling on October 20, 1997, it was not reasonable for him to
fail to take any action to pursue his claims under the CAA for almost
a year. He therefore was not entitled to equitable tolling of the
time limits in the Act for that period. See Luckett, 53 F.3d at
873 (unreasonable delay when plaintiff waits 14 months to hear from
the court); Jarrett, 22 F.3d at 260 (failure to pay filing fee within
five months unreasonable delay); Demers, 779 F.2d at 99 (failure
to investigate union prosecution of claim for three years unreasonable
For these reasons, the Hearing Officer's conclusions
that Hughes failed to satisfy the time limits in the Act and that
Hughes was not entitled to equitable tolling of those limits were
neither unlawful nor an abuse of discretion. 2 U.S.C. § 1406. The
judgment of the Hearing Officer is affirmed.
IT IS SO ORDERED.
Issued, Washington, D.C. September 8, 1999.