PUBLISH
UNITED STATES COURT OF APPEALS
Filed 11/19/96
TENTH CIRCUIT
PAULETTA C. MOSLEY,
Plaintiff-Appellant,
No. 95-6311
v.
FEDERICO PENA, Secretary of the
Department of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the W. District of Oklahoma
(D.C. No. CIV-94-1353-L)
Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, Oklahoma (Greg L.
Maguire, Dean & Associates, Jones, Oklahoma on the brief), for Plaintiff-
Appellant.
Steven K. Mullins, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney, and Robert J. Troester, Assistant United States Attorney, with
him on the brief), Oklahoma City, Oklahoma, for Defendant-Appellee.
Before TACHA, McWILLIAMS, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
Plaintiff brought this action for discrimination based on race and
retaliation, alleging that defendant’s actions violated Title VII of the Civil Rights
Act of 1964. Plaintiff’s amended complaint included three separate claims of
discrimination. The district court granted summary judgment to defendant,
holding that plaintiff’s first claim was time-barred; that her second claim was
filed prematurely because she failed to exhaust her administrative remedies; and
that she had failed to establish a prima facie case with respect to her third claim.
We affirm the grant of summary judgment on each of her claims.
Plaintiff Pauletta Mosley, an African-American, was employed by the
Federal Aviation Administration (FAA) from 1969 until 1994, when she retired.
After she was denied a promotion in 1990, Mosley filed administrative complaint
91-43, alleging discrimination based on race and in retaliation for her previous
charge of discrimination in another case. The agency issued a finding of no
discrimination and plaintiff thereafter appealed to the Equal Employment
Opportunity Commission (EEOC). The EEOC affirmed the agency’s finding of
no discrimination on April 29, 1994. On August 18, 1994, Mosley filed her
Complaint in district court.
In January 1993, after she was passed over for promotion a second time and
while her first complaint was still pending before the EEOC, Mosley filed
administrative complaint 93-141, again alleging discrimination based on race and
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retaliation. The agency issued a finding of no discrimination and Mosley
appealed the decision to the EEOC. On September 6, 1994, Mosley requested that
the EEOC cancel her appeal and issue a right-to-sue letter. On September 19,
1994, before receiving a response from the EEOC, Mosley filed an Amended
Complaint in district court which included claim 93-141.
On April 8, 1993, Mosley filed her last administrative complaint, 93-377,
alleging discrimination in the settlement process of claim 93-141. On November
26, 1993, while 93-377 was pending, Mosley was again denied a promotion. The
agency issued its finding of no discrimination on claim 93-377 on August 18,
1994. Mosley thereafter included 93-377 in her Amended Complaint filed
September 19, 1994.
The district court granted summary judgment to defendant on all three
claims, holding that 91-43 was time-barred; that 93-141 was prematurely filed
because Mosley had failed to exhaust her administrative remedies; and that
Mosley had failed to establish a prima facie case of discrimination in 93-377.
Plaintiff first challenges the district court’s grant of summary judgment on
claim 91-43. She argues that her appeal was timely or, in the alternative, that
equitable considerations justify tolling the filing requirements of 42 U.S.C. §
2000e-16(c).
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This court reviews the district court’s entry of summary judgment de novo,
applying the same legal standard used by the district court. Schusterman v.
United States, 63 F.3d 986, 989 (10th Cir. 1995), cert. denied, 116 S. Ct. 1823
(1996). Summary judgment is appropriate if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c).
Section 2000e-16(c) of Title VII requires a plaintiff suing for racial
discrimination in federal employment to file a claim within ninety days of receipt
of notice of a final action by the EEOC. Compliance with the filing requirements
of § 2000e-16(c) “is not a jurisdictional prerequisite, rather it is a condition
precedent to suit that functions like a statute of limitations and is subject to
waiver, estoppel, and equitable tolling.” Million v. Frank, 47 F.3d 385, 389 (10th
Cir. 1995). “Equitable tolling may be appropriate where ‘the defendant has
actively misled the plaintiff respecting the cause of action, or where the plaintiff
has in some extraordinary way been prevented from asserting his rights.’” Id.
(quoting Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981, 985 (10th Cir.
1981)).
For purposes of determining when the plaintiff received notice of the
EEOC’s final action, notice to an attorney is imputed to the client. Noe v. Ward,
754 F.2d 890, 892 (10th Cir. 1985). Because Mosley failed to notify the EEOC
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that she was no longer represented by counsel, notice to her former attorney is
properly imputed to her. But see Coates v. Shalala, 914 F. Supp. 110, 112 (D.
Md. 1996).
Mosley asserts that her former attorney, Alma Washington, did not receive
notice of the EEOC’s final action in 91-43 until May 20, 1994, and that her
complaint was timely filed ninety days later. The record, however, contains a
copy of a signed receipt indicating Washington received notice of the EEOC’s
final action by certified mail on May 16, 1994. Notwithstanding this evidence,
Mosley relies on unspecified “Post Office procedures” and a series of handwritten
numbers on the envelope to argue that Washington did not receive the EEOC’s
letter until May 20, 1994. Mosley has failed, however, to point to any record
evidence to support her bare allegation that the numbers on the envelope relate to
the letter’s actual date of delivery. Accordingly, we affirm the district court’s
grant of summary judgment on claim 91-43.
In the alternative, Mosley argues that the time for filing her claim should be
equitably tolled because she was misled by the EEOC’s “inconsistent mailing
practices” and by its failure to comply with the Code of Federal Regulations.
Having carefully reviewed the record on appeal, the court determines that the
EEOC’s actions did not actively mislead the plaintiff. Plaintiff’s reliance on the
mailing practices of non-EEOC agencies to support her claim that the EEOC
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misled her is misplaced; her argument that she relied upon EEOC statements and
practices of which she was not yet aware is disingenuous. Moreover, because
plaintiff does not claim to have relied upon the C.F.R. sections she cites, her
argument that she was misled by the EEOC’s failure to comply with them is
unpersuasive.
Mosley next challenges the district court’s grant of summary judgment on
claim 93-141 for failure to exhaust administrative remedies. Administrative
exhaustion is a jurisdictional prerequisite to suit under 42 U.S.C. § 2000e-16.
Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993). Despite this general
requirement, a plaintiff may be excused from exhausting administrative remedies
on related claims of discrimination or retaliation that occur after the filing of the
original EEOC complaint. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.
1994). This exception, however, does not apply to Mosley because she treated
her retaliation claim 93-141 as a separate and distinct claim from the underlying
claim of discrimination.
In Ingels, the plaintiff’s retaliation claim was not the subject of a separate
EEOC claim. Id. at 620. Rather, the plaintiff added the related retaliation claim
to his fully exhausted underlying EEOC claim at the district court level. Id.
Ingels asserted he was not required to file separate administrative charges for his
retaliation claim because that claim was related to his underlying claim of
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discrimination. Id. at 624-25. This court agreed and held that plaintiffs should
not be put to the additional burden of exhausting their administrative remedies on
retaliation claims as well as on the underlying claim. Id. at 625. The court
stated: “‘Indeed, requiring a plaintiff to file a second EEOC charge under these
circumstances could have the perverse result of promoting employer retaliation in
order to impose further costs on plaintiffs and delay the filing of civil actions
relating to the underlying acts of discrimination.” Id. (quoting Butts v. City of
New York Dept. of Housing Preservation & Dev., 990 F.2d 1397, 1402 (2d Cir.
1993)).
However, the Ingels rationale does not apply when, as here, the plaintiff
has chosen to undertake the burden of filing separate claims with the EEOC. In
Ingels, the plaintiff treated his retaliation claim as ancillary; in this case, Mosley
treated her retaliation claim as separate. Although Mosley could have chosen to
treat that claim as ancillary to the underlying discrimination claim 91-43, she
instead filed a separate formal complaint with the EEOC alleging retaliation.
Furthermore, her August 18, 1994 complaint in district court did not include or
refer to her retaliation claim 93-141 even though she had already received an
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adverse decision from the FAA on claim 93-141. Instead, Mosley chose to
administratively appeal the decision in 93-141. 1
As a consequence, Mosley treated her retaliation claim 93-141 as distinct
from the underlying claim 91-43. This court feels obliged to do the same. Under
the circumstances, we find Mosley was required to exhaust her administrative
remedies. Accordingly, the district court did not err when it granted defendant’s
motion for summary judgment on claim 93-141 on the ground that Mosley had
failed to exhaust her administrative remedies.
Finally, Mosley challenges the district court’s grant of summary judgment
on claim 93-377, which alleged discrimination based on race and retaliation.
Mosley argues that she suffered discrimination in settlement negotiations with the
FAA on claim 93-141. In the alternative, she argues that she suffered
discrimination when she was not selected for promotion in November 1993.
With respect to her claim that she suffered discrimination in the settlement
process, Mosley has failed to present evidence that similarly-situated individuals
outside her protected group were treated differently. As a result, she has failed to
establish a prima facie case of discrimination based on race. See Cole v. Ruidoso
1
Mosley failed to exhaust her administrative remedies in claim 93-141
because she later canceled her appeal and requested the EEOC to issue her a
right-to-sue letter. Before the EEOC responded, Mosley filed her complaint in
district court which included the underlying claim 91-43 and the retaliation claim
93-141.
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Mun. Schs., 43 F.3d 1373, 1380 (10th Cir.1994). Because she has failed to
demonstrate that the failure to settle her claim was an adverse employment action
or that a causal connection exists between her protected activity and the non-
settlement of her claim, Mosley has likewise failed to establish a prima facie case
of retaliatory discrimination. See Murray v. City of Sapulpa, 45 F.3d 1417, 1420
(10th Cir. 1995).
Mosley’s argument that she is not required to establish a prima facie case
because she has presented direct evidence of discrimination is unpersuasive. “A
plaintiff in an employment discrimination case proves discrimination by direct
evidence when she presents proof of ‘an existing policy which itself constitutes
discrimination.’” Tomsic v. State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1477
(10th Cir. 1996) (quoting Ramsey v. City & County. of Denver, 907 F.2d 1004,
1008 (10th Cir. 1990)). Mosley argues that the statements of Peter Kochis, the
director of the FAA facility where she was employed, constitute direct evidence
of discrimination in the settlement negotiations of claim 93-141. 2 “Statements
2
The EEO counselor investigating claim 93-141 reported that:
Mr. Kochis stated (off the record) would you want to hire a problem
employee who file [sic] (EEO) all the time on you (meaning every
time a selection is made). Mr. Kochis stated are you (EEO
Counselor) familiar with Ms. Mosley [sic] previous EEO cases (she
files all the time) but one case where she got her relatives a contract,
our office went after her (termination) but we had to bring her back
and so I’m sure there are some hard feeling [sic] still about this
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which on their face are expressions of personal opinion, however, can only
support an inference of discrimination if the trier of fact finds the inference
reasonable, and so constitute only circumstantial or indirect evidence of
discrimination against the plaintiff.” Id. Because Kochis’s statements are on
their face expressions of personal opinion and not proof of an existing policy
which itself constitutes discrimination, Mosley is not relieved of the burden of
establishing a prima facie case.
Mosley’s argument that she suffered discrimination when she was not
selected for promotion in November 1993 is likewise unavailing. Mosley filed
administrative complaint 93-377 on April 8, 1993. Accordingly, the
discrimination she claims to have suffered occurred after she filed her claim.
Because the FAA’s failure to promote Mosley in November 1993 cannot provide
the basis for a complaint filed seven months earlier, we affirm the district court’s
grant of summary judgment on claim 93-377.
For the foregoing reasons, the district court’s grant of summary judgment
on claims 91-43, 93-141 and 93-377 is AFFIRMED.
particular situation. At that time I (Mr. Kochis) was not the
Manager.
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