McCarthy, Thomas v. Wilsack, Thomas

Filing 38

ORDER denying 33 Motion for Summary Judgment; denying 34 Motion for Reconsideration. Signed by District Judge Barbara B. Crabb on 4/21/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THOMAS M. McCARTHY,
ORDER
Plaintiff,
15-cv-312-bbc
v.
THOMAS J. VILSACK,
Secretary, U.S. Department of Agriculture,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Thomas McCarthy brought this lawsuit against defendant Thomas
Vilsack in which he alleged that the U.S. Department of Agriculture discriminated against
him because of his race, sex and age when the agency failed to interview him for two
positions, in violation of Title VII of the Civil Rights Act and the Age Discrimination in
Employment Act. In an order dated March 14, 2016, dkt. #31, I granted defendant's
motion for summary judgment. The only issues I decided were that plaintiff had failed to
comply with the 45-day deadline to contact an Equal Employment Opportunity counselor,
29 C.F.R. § 1614.105(a)(1), and that plaintiff failed to show that he was entitled to
equitable tolling. Lapka v. Chertoff, 517 F.3d 974, 981 (7th Cir. 2008) (court must "bar
claims if the forty-five day requirement is not satisfied and there is no occasion for equitable
tolling").
Now plaintiff has filed two motions that are ready for review: (1) a "motion for
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summary judgment based on new information," dkt. #33; and (2) a "motion for
reconsideration," dkt. #34. Because plaintiff filed both of these motions after judgment was
entered, dkt. #32, I will construe both of them as requests under Fed. R. Civ. P. 59(e) to
alter or amend the judgment.
Plaintiff does not argue that I erred in finding that he did not comply with the
deadline in § 1614.105(a)(1). He raises new arguments in support of a view that he should
be excused from the deadline, but it is too late to do that. Sigsworth v. City of Aurora,
Illinois, 487 F.3d 506, 511-12 (7th Cir. 2007) (“[I]t is well-settled that a Rule 59(e) motion
is not properly utilized to advance arguments or theories that could and should have been
made before the district court rendered a judgment.”).
In any event, plaintiff’s new arguments are not persuasive. First, he says that 29
C.F.R. § 1614.105(a)(2) allows individuals to contact a counselor after the 45-day deadline.
That is true, but the exception applies only
when the individual shows that he or she was not notified of the time limits
and was not otherwise aware of them, that he or she did not know and
reasonably should not have been known that the discriminatory matter or
personnel action occurred, that despite due diligence he or she was prevented
by circumstances beyond his or her control from contacting the counselor
within the time limits, or for other reasons considered sufficient by the agency
or the Commission.
29 C.F.R. § 1614.105(a)(2). See also Shropshear v. Corp. Counsel of City of Chicago, 275
F.3d 593, 595 (7th Cir. 2001)(“Equitable tolling permits a plaintiff to avoid the bar of the
statute of limitations if despite the exercise of all due diligence he is unable to obtain vital
information bearing on the existence of his claim.”).

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Plaintiff does not deny that he was aware of the time limits. Instead, he says that he
was not aware of potential discrimination until July 2013, when he learned that he had been
rated “Best Qualified” for the positions to which he applied. (He does not identify the
person or entity that gave him the rating.) This argument fails because plaintiff overlooks
a key part of the provision, which requires him to show that he could not have discovered
that information earlier with reasonable effort.

Plaintiff has not shown that he was

prevented from learning his rating before July 2013.

In fact, plaintiff admits that he

discovered his rating by reading old emails that defendant had sent him. Dkt. #34 at 3. In
other words, plaintiff seems to be admitting that he had the information he needed earlier;
he simply failed to look at it. That does not qualify as reasonable effort.
Further, it is undisputed that plaintiff did not contact a counselor until September
2013. Plaintiff does not provide any justification for waiting another two months after he
learned the information about his rating. He says that making a complaint will “mean a
mountain of resistance from” the agency, dkt. #34 at 3, but he cites no evidence to support
that allegation. Even if it were true, agency “resistance” is not a ground in the regulation for
extending the deadline.
Most of plaintiff’s remaining arguments are devoted to an attempt to show that
defendant discriminated against him. However, as noted above, I did not consider the
merits of plaintiff's claims; I granted defendant's motion because plaintiff had failed to
comply with § 1614.105. Under Lapka, 517 F.3d at 981, even if I agreed with plaintiff that
he had strong evidence of discrimination, I could not consider that evidence in light of his

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failure to contact a counselor within the deadline.
Finally, plaintiff criticizes the agency for failing to investigate his complaint. Again,
because plaintiff’s complaint was untimely, the agency was not required to consider the
merits of plaintiff’s claims.

ORDER
IT IS ORDERED that plaintiff Thomas McCarthy’s motions, dkt. ##33 and 34,
are DENIED.
Entered this 21st day of April, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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