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Case Law - save on Lexis / WestLaw. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ m 01-11471 Summary Calendar _______________ HANDY M. TEEMAC, Plaintiff-Appellant, VERSUS WILLIAM J. HENDERSON, POSTMASTER GENERAL, Defendant-Appellee. _________________________ Appeal from the United States District Court for the Northern District of Texas _________________________ July 26, 2002 Before JONES, SMITH, and discrimination before filing a formal complaint EMILIO M. GARZA, Circuit Judges. with the Equal Employment Opportunity Commission ("EEOC"). The court rejected JERRY E. SMITH, Circuit Judge: Teemac's request for equitable tolling. Finding no error, we affirm. Handy Teemac sued the Postmaster General, claiming the United States Postal I. Service ("USPS") had fired him because of his Teemac worked as a casual employee for religion. The district court dismissed because the USPS. He alleges that the USPS violated Teemac had failed to seek informal counseling the Civil Rights Act of 1964, 42 U.S.C. within forty-five days of the alleged § 2000e et seq., by discharging him because of his religious beliefs. Teemac claims he tolling and relying on this court's strict informed a supervisor that he could not work requirements for tolling. The district court on Sundays but that the supervisor nonetheless granted the USPS's motion to dismiss the scheduled him to work on a Sunday. Teemac complaint under FED. R. CIV. P. 12(b)(6). did not show up, and in November 1996 the USPS fired him for failing to follow III. instructions. Federal employees must seek informal counseling before they file an EEOC II. complaint. 29 C.F.R. § 1614.105(a). If the In March 1997, Teemac filed a formal com- employee fails to do so, his claim is barred. plaint with the EEOC. In June 1997, the Pancheco v. Rice, 966 F.2d 904, 905 (5th Cir. USPS determined that he had failed to make a 1992). The employee must establish waiver, timely informal complaint to the EEOC estoppel, or equitable tolling to circumvent counsel as required by 29 C.F.R. § 1614.105. this requirement. Id. The USPS dismissed Teemac's formal claim. The EEOC affirmed the USPS's decision but A. remanded for the USPS to conduct a supple- We have not precisely defined the standard mental investigation and determine whether for reviewing a dismissal on the ground that Teemac had constructive or actual notice of the federal employee failed timely to seek in- the informal complaint requirement. formal counseling.1 We must consider wheth- er district courts owe deference to the EEOC's The USPS then found that Teemac had conclusion. We also must reconcile the boiler- constructive notice of the informal counseling plate abuse of discretion standard for re- requirement and rejected Teemac's request for viewing refusals to toll with the boilerplate equitable tolling. The EEOC affirmed the de novo standard for reviewing dismissals on agency's ruling and dismissed Teemac's formal complaint. 1 Pacheco, 966 F.2d at 906-07 (reviewing dis- Teemac sued, explaining that he lacked ac- missal on pleadings for failure to seek informal tual notice of the informal counseling counseling but failing to note the standard of re- requirement. He worked for the USPS for view); Henderson v. United States Veterans only thirty-nine days, recently had immigrated Admin., 790 F.2d 436, 441 (5th Cir. 1986) to the United States, unsuccessfully sought ad- (reviewing agency and district court's dismissal for vice from local attorneys, and could not conformity with regulation but failing to describe understand the orientation session. He urges the relevant standard of review). See Oaxaca v. that these circumstances justify equitable Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A Apr. tolling. 1981) (avoiding standard of review question by finding that district court had dismissed complaint The district court found that Teemac had prematurely and ordering further discovery on the failed to seek counseling from an EEO officer question of equitable tolling); Wilson v. Sec'y, within forty-five days of the adverse Dep't of Veterans Affairs, 65 F.3d 402, 404 (5th employment action. The court rejected Cir. 1995) (reviewing for arbitrariness and Teemac's requests for equitable tolling, noting capriciousness the EEOC's decision about whether that he bore the burden of proving the need for federal employee had timely filed an internal appeal). 2 the pleadings. tolling. Although the regulation vests the agency with the responsibility for making the The district court reviewed the EEOC's initial decision, the regulation also prescribes refusal to toll de novo. In most cases, federal guidelines. The agency must waive the district courts review deferentially an agency's requirement if the employee lacked actual and formal adjudication and review the agency's constructive notice of the requirement; interpretations o f its regulations for likewise, the agency must toll if outside events arbitrariness and capriciousness. The agency's prevented the employee from seeking informal factfinding need only be supported by counseling.4 substantial evidence.2 The Civil Rights Act of 1964, however, provides federal employees The regulation plainly limits agency with the same right to a de novo trial that discretion, and courts can interpret these private employees possess. District courts regulatory limits as ably as can agencies. cannot presume the correctness of the EEOC's Parity requires that district courts apply the factual findings.3 Parity trumps the deference same standards that govern a private normally afforded to administrative agencies. employer's civil action. Like every appellate court to consider the issue, we conclude that We conclude that the de novo trial the district court should make an independent requirement extends to the EEOC's judgment about an employee's tolling request.5 determination about equitable tolling. Section 1614.105 codifies the doctrine of equitable 4 The text provides: The agency or the Commission shall extend 2 Allentown Mack Sales & Serv., Inc., 522 U.S. the 45-day time limit in paragraph (a)(1) of 359, 366-67, 374 (1998) (explaining that the this section when the individual shows that Administrative Procedure Act directs courts to he or she was not notified of the time limits review agencies for "reasoned decisionmaking," and was not otherwise aware of them, that which requires arbitrary and capricious review of he or she did not know and reasonably the agency's interpretation of its own regulations should not have known that the and substantial evidence review of its fact finding). discriminatory matter or personnel action occur red, that despite due diligence he or 3 Chandler v. Roudebush, 425 U.S. 840, 862 she was prevented by circumstances beyond (1976) (requiring district court to conduct de novo his or her control from contacting the trial even after EEOC had concluded that federal counselor within time limits, or for other employee's title VII claim lacked merit); id. at 864 reasons considered sufficient by the agency n.39 ("Prior administrative findings made with or the Commission. respect to an employment discrimination claim may, of course, be admitted as evidence at a 29 C.F.R. § 1614.105(a)(2). federal-sector trial de novo.") (citations omitted). See Century Marine Inc. v. United States, 153 5 E.g., Roman-Martinez v. Runyon, 100 F.3d F.3d 225, 231 (5th Cir. 1998) (explaining that even 213, 216, 218 (1st Cir. 1996) (reviewing, de novo, where the Contracts Dispute Act prohibits district court's dismissal at summary judgment administrative findings from being binding, the because of employee's request for tolling informal district court can consider them as evidence in a counseling requirement based on mental condition); subsequent proceeding). (continued...) 3 We now must consider our standard for other motion on the pleadings, we assume the reviewing the district court's decision. pleaded facts as true, and we will remand if the plaintiff has pleaded facts that justify equitable A district court may refuse to toll tolling.8 "[R]aising the limitations defense in a limitations because it interprets a statute or motion to dismiss may easily be premature regulation to prohibit tolling or because it because facts tolling the running of the statute refuses to exercise its equitable discretion to do not necessarily appear in the complaint." toll. Where the district court interprets a Dawson, 4 F.3d at 130 (citing 5 CHARLES A. statute or regulation, appellate courts review WRIGHT & ARTHUR R. MILLER, FEDERAL de novo.6 Where, however, the district court PRACTICE AND PROCEDURE § 1277 (West 2d declines to exercise its equitable powers, we ed. 1990)). review decisions on the pleadings only for abuse of discretion.7 As when deciding any B. The regulation requires extension of the time limit where the employee was neither 5 "notified" nor "otherwise aware" of the (...continued) Goldman v. Sears, Roebuck & Co., 607 F.2d informal counseling requirement. 29 C.F.R. 1014, 1017 (1st Cir. 1979) (affirming district § 1614.105(a)(2); Oaxaca, 641 F.2d at 391. court's refusal to give deference to EEOC's class- We review this interpretive question de novo. ification of claim as timely); Briones v. Runyon, Supra note 6. 101 F.3d 287, 290 (2d Cir. 1996) (noting district court's independent review and subsequently re- Providing adequate noti fication to viewing district court's decision); Kontos v. United employees generally is sufficient; the employer States Dep't of Labor, 826 F.2d 573, 575 n.4 (7th need not prove that an individual employee Cir. 1987) (noting potential conflict between understood the notice.9 Teemac does not authority vested by regulation and parity principle and choosing to exercise de novo review). 6 FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir. 7(...continued) 1993) ("Because the district court held that that AEDPA's time limit does not violate the equitable tolling was unavailable as a matter of law Suspension Clause); Ott v. Johnson, 192 F.3d 510, and did not withhold equitable tolling simply as a 513 (5th Cir. 1999) (reviewing, for abuse of matter of discretion, we follow Cruz and apply the discretion, decision not to toll); Fisher v. Johnson, de novo standard of review."); Hickey v. Irving 174 F.3d 710, 712-13 (1999) (explaining that Indep. Sch. Dist., 976 F.2d 980, 983-84 (5th Cir. district court's discretionary refusal to toll one-year 1992) (remanding because district court failed to time limit should be reviewed for abuse of consider Texas statute that mandates tolling statute discretion, even where made on the pleadings). of limitations until claimant turns eighteen). 8 Shipp v. McMahon, 234 F.3d 907, 911 (5th 7 United States v. Patterson, 211 F.3d 927, 931 Cir. 2000), cert. denied, 532 U.S. 1052 (2001). (5th Cir. 2000) (reviewing refusal to toll Anti- Terrorism and Effective Death Penalty Act's 9 Pauling v. Sec'y of the Dep't of the Interior, ("AEDPA") one-year time limit for abuse of dis- 160 F.3d 133, 136 (2d Cir. 1998) (refusing to find cretion); Molo v. Johnson, 207 F.3d 773, 775 (5th that informational posters created constructive Cir. 2000) (reviewing district court's conclusion notice because employee lacked access to those (continued...) (continued...) 4 argue that the USPS failed generally to notify misled by the defendant about the cause of its employees of the counseling requirement. action or is prevented in some extraordinary For example, he acknowledges that the USPS way from asserting his rights." United States distributed information about the informal v. Patterson, 211 F.3d 927, 930 (5th Cir. counseling requirement during new employee 2000). In dictum, we have stated that orientation; posters also displayed the equitable tolling may apply when an information. Teemac, instead, relies on his employee's "lack of sophistication" prevents specific circumstances to prove that he him from understanding title VII's procedures. excusably failed to learn about the informal Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir. counseling requirement. This argument 1992). sounds more like a traditional equitable tolling argument, or a request for tolling based on Teemac's strongest argument for equitable "other reasons." tolling is his inability to speak fluent English; he claims the language barrier prevented him C. from understanding the instructions provided We review for abuse of discretion a district during new employee orientation. We court's decision not to exercise equitable toll- previously have refused to toll statute of ing or extend the time limit for "other limitations based on an employee's lack of reasons." Supra note 7. The party who familiarity with English. In Nat'l Ass'n of invokes equitable tolling bears the burden of Gov't Employees v. City Pub. Serv. Bd., 40 proof.10 Equitable tolling applies only in "rare F.3d 698, 709 (5th Cir. 1994), however, the and exceptional circumstances." Davis v. employees' English-speaking attorney could Johnson, 158 F.3d 806, 811 (5th Cir. 1998). interpret t itle VII's administrative Courts grant requests for equitable tolling requirements. Because Teemac did not have most frequently where "the plaintiff is actively legal representation available at the new employee orientation, National Association does not resolve the question. 9(...continued) areas but admitting possibility of constructive More persuasively, courts in a long line of notice); Jakubiak v. Perry, 101 F.3d 23, 27 (4th cases have held that employees' ignorance of Cir. 1996) (considering whether employee bulletin the law, even when stemming from illiteracy, was "reasonably geared" to provide notice); Clark cannot justify tolling.11 Section 1614.105 v. Runyon, 116 F.3d 275, 277-78 (7th Cir. 1997) (finding that USPS's prominent posters announcing requirement counted as notification, even if 11 Baldwin County Welcome Ctr. v. Brown, 466 employee was not aware of informal counseling U.S. 147, 152 (1984) (finding that even a pro se requirement); Johnson v. Runyon, 47 F.3d 911 (7th plaintiff can forfeit his rights if he sleeps on them); Cir. 1995) (explaining that "subjective ignorance Mohasoc Corp. v. Silver, 447 U.S. 807, 825 alone does not automatically" require tolling under (1980) (refusing to excuse lay persons from the regulation). compliance with title VII statute of limitations even though some courts of appeals had adopted a more 10 Wilson, 65 F.3d at 404; Conaway v. Control lenient interpretation of the time limit); Graham- Data Corp., 955 F.2d 358, 362 (5th Cir. 1992) Humphreys v. Memphis Brooks Museum of Art, ("[T]he plaintiff has the burden of demonstrating a Inc., 209 F.3d 552, 561 (6th Cir. 2000) (explaining factual basis to toll the period.") (citation omitted). (continued...) 5 departs from this well-established principle by Teemac, however, never brought an informal making the federal employee's knowledge of complaint before the EEO counselor, even af- the informal counseling requirement relevant. ter the forty-five-day deadline had lapsed; he The regulation, however, cabins the reasons only filed the formal complaint. that a district court may be required to toll. The regulation mandates tolling only where the Formal and informal complaints serve very employee lacks actual and constructive notice different purposes; informal counseling fosters of the informal complaint requirement. early and amicable dispute resolution. We read this regulation as a narrow Discounting Teemac's good faith procedural exception, situated against the well-established mistake as minor would compromise the background rule that employees are charged informal complaint requirement. We cannot with knowing the law. Once the USPS excuse all inadvertent noncompliance as notified its employees about the informal harmless. counseling requirement, Teemac had the obligation to investigate terms and conditions Teemac also argues that he did not work at of employment left ambiguous because of his the post office very long, did not see the in- language deficiencies. We will not toll the formational posters, and had a subordinate time limit because of Teemac's lack of English status as a casual worker. None of these ar- fluency. guments excuses noncompliance. The USPS provided information on the informal Teemac spoke to local lawyers and visited counseling requirement during employee libraries in an attempt to understand his orientation, at the beginning of Teemac's employment rights; he argues that he zealously employment. The orientation material pursued his rights and merely made a careless supplemented the posters. Although Teemac and understandable mistake. Although the em- explains that casual workers received an ployee's diligent pursuit of remedies is rele- abbreviated orientation, he does not argue that vant, Teemac admits that, standing alone, it the USPS failed to provide them with the does not justify tolling. Outside the title VII information on informal counseling. Nor does context, courts have excused missed deadlines he contend that the USPS described casual where plaintiffs filed a defective pleading.12 workers as exempt from the informal counseling requirements. 11(...continued) AFFIRMED. that even pro se litigants are charged with knowing and following the law); Fisher, 174 F.3d at 714 ("[I]gnorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing."); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991) (finding that 12(...continued) illiteracy and ignorance of the law cannot justify that employee improperly filed in state court would equitable tolling). toll the federal statute of limitations); Perez v. United States, 167 F.3d 913, 918 (5th Cir. 1999) 12 Burnett v. N.Y. Cent. R.R., 380 U.S. 424, (tolling limitations period where plaintiff named 425-27 (1965) (finding that suit against railroad national guard in wrong capacity and time limit (continued...) subsequently lapsed). 6 |
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