United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 1998 Decided November 13, 1998
No. 98-7020
Paul Talcott Currier,
Appellant
v.
Radio Free Europe/Radio Liberty, Inc.,
Appellee
Appeal from the United States District Court
for the District of Columbia
(97cv01619)
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Peter C. Cohen argued the cause and filed the briefs for
appellant.
Gil A. Abramson argued the cause for appellee. With him
on the brief were David G. Leitch and Catherine E. Stetson.
Before: Silberman, Rogers, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellant brought a Title VII
suit against his employer. The employer moved for summary
judgment, asserting that appellant's suit was barred because
he had not timely exhausted his administrative remedy with
the EEOC. Rejecting appellant's contention that he had filed
his EEOC complaint on time and his alternative argument
that equitable principles should operate to toll the filing
requirement, the district court granted summary judgment in
favor of the employer. We reverse in part and affirm in part.
I.
Appellant Paul Currier was hired as an independent con-
tractor by appellee Radio Free Europe/Radio Liberty, Inc., a
non-profit Delaware corporation with primary operations in
Prague, the Czech Republic. Appellant was to serve as a
computer network engineer and systems analyst at the
Prague location, and entered into a six-month contract with
appellee to begin December 31, 1995 and to expire on June
30, 1996.1
In February or March 1996, Currier went to a restaurant
in Prague after work. Candace O'Brien, appellee's Director
of Human Resources, was seated at a table with other co-
workers. O'Brien, apparently inebriated, made disparaging
comments regarding appellant's sexual prowess. She then
unbuttoned his pants, squeezed his penis, and exposed his
testicles. The following day, O'Brien--a supervisory official
who had authority to fire appellant--instructed him that "he
had better get in line [with her version of what happened] or
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1 Of course we take the facts and all reasonable inferences
therefrom in the light most favorable to appellant, the nonmoving
party. See, e.g., Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997).
We note that appellant, then acting pro se, alleged neither his
finality nor his equitable estoppel argument in his complaint, but
only in his opposition papers to appellee's motion for summary
judgment. Although appellee raises the issue of whether appellant
should be entitled to amend his complaint in the absence of a formal
request under Fed. R. Civ. P. 15, we assume without deciding that
appellant would be entitled to amend his complaint. We think this
course proper given the district court's disposition of the summary
judgment motion in light of all of appellant's allegations, see Civ.
No. 97-1619, Mem. Op. at 11 n.3 (D.D.C. Jan. 14, 1998).
he would have a problem with her." (O'Brien's "official
version" maintained that appellant had voluntarily exposed
himself at the table.) O'Brien further threatened that if
appellant discussed the actual incident, his employment con-
tract would not be renewed and he would have problems
during the remainder of his existing contract. Appellant took
O'Brien's threats seriously, and refrained from mentioning
the incident. But O'Brien often recounted the "official ver-
sion," and when appellant was asked for his account by a co-
worker in O'Brien's presence, he disputed the "official ver-
sion." O'Brien warned appellant not to make such a mistake
again.
Soon thereafter, Currier encountered one of the "problems"
that O'Brien had promised. At a workplace social event,
appellant had a heated discussion with a female co-worker
about the definition of sexual harassment. The following day,
he learned that O'Brien was investigating the incident and
that he was suspected of sexual harassment against the
female co-worker. Although the investigation was without
basis in fact, he received a termination letter from O'Brien on
May 14, 1996. He viewed this accusation as a pretext for
retaliating against him because of his earlier opposition to
O'Brien's sexual harassment of him.
Less than a week after receiving O'Brien's termination
letter, Currier met with Robert Gillette, appellee's Director of
Broadcasting and a higher ranking management official than
O'Brien. Appellant told Gillette that his previous encounters
with O'Brien made it impossible for O'Brien to conduct a
neutral investigation of appellant's asserted sexual harass-
ment of the female co-worker. Gillette promised to conduct a
second investigation that would be fair and impartial, and
assured Currier that there would be "no final determination"
regarding his employment status until that second investiga-
tion was concluded.
Appellant stopped coming to work after receiving his termi-
nation letter, and his contract expired by its terms on June
30, 1996. But he did not give up his efforts to return to
appellee's employ. Rather, he inquired several times about
the status of Gillette's investigation. Shortly before Thanks-
giving 1996, he met with his former supervisor, Tom Morgan,
and Gillette. Appellant was told that the investigation was
still continuing and had not yet been concluded. Gillette
referred to Morgan as appellant's present "boss" and said
that Morgan "will always be your boss."
Appellant filed an administrative complaint with the San
Francisco office of the EEOC on March 28, 1997. The EEOC
issued a notice of right to sue, and appellant brought suit
against appellee in the district court under Title VII, contend-
ing, first, that O'Brien had sexually harassed him, and second,
that she had retaliated against him for opposing her advances
by terminating his employment. Appellee moved to dismiss
the complaint, or in the alternative for summary judgment, on
the ground that appellant had not filed his EEOC complaint
in the time required by 42 U.S.C. s 2000e-5(e)(1) (1994).
Appellant argued in opposition that it was improper to start
the clock when he received the termination letter because
that termination decision was not a final decision. Alterna-
tively, he argued that one of appellee's officials had misled
him into believing that he would be rehired, and therefore
that appellee should be equitably estopped from asserting the
statutory deadline. The district court disagreed and granted
summary judgment in favor of appellee.
II.
42 U.S.C. s 2000e-5(e)(1) requires that "[a] charge ...
shall be filed [with the EEOC] within one hundred and eighty
days after the alleged unlawful unemployment practice oc-
curred."2 Only after exhausting this administrative remedy
can an aggrieved person bring suit in district court. Jarrell
v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C. Cir.
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2 A three-hundred-day time limit applies when the aggrieved
person has initially instituted proceedings with a state or local
agency with authority to grant or seek relief from the unlawful
practice. See 42 U.S.C. s 2000e-5(e)(1). The district court con-
cluded that this longer time limit did not apply to appellant, because
appellant never instituted proceedings with the District of Columbia
Office of Human Rights and because that office would not have had
1985) (citing Brown v. General Servs. Admin., 425 U.S. 820,
832-33 (1976)). Here, the parties agree that appellant filed
his EEOC complaint on March 28, 1997. For appellant's
EEOC complaint to have been timely, the precise " 'unlawful
employment practice' of which he complains," Delaware State
College v. Ricks, 449 U.S. 250, 257 (1980), must have occurred
within 180 days of his EEOC filing, i.e., on or after Septem-
ber 29, 1996.
The parties disagree on when the unlawful employment
practice occurred, and thus on when the statutory clock
started ticking. Appellee argues that we should count from
the date appellant received his termination letter, May 14,
1996; thus measured, appellant did not file his EEOC com-
plaint for 328 days, which is too late. Appellant, while not
offering a specific starting date, contends that the clock did
not start ticking until long after May 14, 1996, because the
May 14 termination decision was not yet a final decision.
Alternatively, he argues that appellee's manager's misleading
assurances of reinstatement should equitably estop appellee
from asserting the statutory filing deadline.3 Under either of
appellant's approaches, of course, he would not be deemed to
have failed to exhaust his administrative remedy.4
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subject matter jurisdiction over his charge in any event. Appellant
does not challenge these conclusions on appeal.
3 Appellant argues in his reply brief that appellee waived its right
to assert the statute of limitations by raising that defense in its pre-
answer motion rather than in its answer--which has yet to be filed.
This argument could not prevail because appellant asserted it for
the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 119
(1976). In any event, it is without merit given our recent decision
in Smith-Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.
Cir. 1998), where we held that "an affirmative defense may be
raised by pre-answer motion under Rule 12(b) when the facts that
give rise to the defense are clear from the face of the complaint."
4 Appellant focuses on the equitable estoppel argument in his
brief and does not clearly articulate the finality argument as a
separate issue. For ease of analysis, we treat the issues separately.
A.
We begin with the question of when (if ever) appellant had
notice that the termination decision was final so as to start
the clock on the EEOC filing deadline. See Ricks, 449 U.S.
at 261 (holding that the starting point for the deadline occurs
when plaintiff has notice of an official, i.e., not "tentative,"
decision). The parties agree that appellant received the
termination letter from O'Brien on May 14, 1996,5 and that
O'Brien had the authority to fire him.
But were the circumstances such that O'Brien's decision
was not actually final? Appellant claims that Gillette, a
manager directly superior to O'Brien in appellee's organiza-
tional hierarchy, assured him less than a week after May 14
that O'Brien's decision was not a "final determination." Gil-
lette is claimed to have again told Currier around Thanksgiv-
ing that the investigation was still ongoing; Currier was not
told that Gillette's investigation had concluded by the time he
filed his charges with the EEOC's San Francisco office the
following March. Appellee reminds us that in Ricks, the
Supreme Court was careful to point out that an employer that
expresses an "official position" and simultaneously "indi-
cate[s] a willingness to change its [official position]" based on
the outcome of a pending grievance proceeding does not
thereby render that "official position" a "tentative" decision.
Ricks, 449 U.S. at 261. And appellee refers us to our recent
warning that "a plaintiff [may not] avoid the holding in Ricks
simply by labeling the final decision 'preliminary' and proce-
dures to review that decision an 'integral part' of the decision
process rather than collateral review of the final decision."
Harris v. Ladner, 127 F.3d 1121, 1125 (D.C. Cir. 1997).
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5 That appellant's six-month contract expired by its own terms on
June 30, 1996 does not have any relevance for the start date
because appellant does not allege any continuing violation between
May 14, 1996 and June 30, 1996. See Ricks, 449 U.S. at 257 ("Mere
continuity of employment, without more, is insufficient to prolong
the life of a cause of action for employment discrimination.").
It is true that the reconsideration of Currier's termination
would not alone render the initial decision "preliminary"
rather than "final." But we think appellant points to more
than mere reconsideration in his effort to identify a later
starting date for the statutory clock. He claims that a
supervisor of the initial decision-maker informed him shortly
after that initial decision that "there would be no final
determination ... until the conclusion of his investigation."
In other words, an authoritative voice (Gillette) expressly
disavowed the finality of the initial determination,6 which
implies a later starting date--though it remains unclear ex-
actly when the decision became final--that could bring appel-
lant's EEOC complaint within the statutory time limit.
Whether Gillette did indeed make such an assurance and
whether, if he did, it was true, may well be contested.7 At
this juncture, however, appellant has created a genuine issue
on this material fact. See Fed. R. Civ. P. 56(c); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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6 We note that to our knowledge appellee did not have in place a
formal direct or collateral review procedure for personnel decisions.
Cf. Harris, 127 F.3d at 1125 (distinguishing Ricks on the ground
that the formal reconsideration process in Ricks resembled collater-
al review rather than direct review). In such a situation, it seems
appropriate to put stock in a manager's characterization of the
decisionmaking process.
7 If Gillette's description of O'Brien's decision as non-final were a
falsehood, appellee might be equitably estopped, see Part II.B infra,
from asserting Title VII's EEOC filing deadline as an affirmative
defense. Cf. Ricks, 449 U.S. at 261 (holding that an employer's
offer to reconsider a final decision does not toll the limitations
period as a matter of equity, but making no mention of the
possibility that a false offer could equitably estop the employer). If
appellant fails on remand to prove the facts underlying his finality
argument, he still may attempt to prove the facts underlying his
equitable estoppel argument under our alternative holding in Part
II.B infra.
B.
Even if we viewed the May 14, 1996 letter as a final
decision that started the statutory clock, we would still con-
clude that the district court improperly granted summary
judgment in favor of appellee because appellant has pointed
to sufficient facts in his affidavit to create a genuine issue as
to whether equitable principles should toll the EEOC filing
deadline.
Title VII's time limit on filing a complaint with the EEOC
is not jurisdictional and is subject to "estoppel[ ] and equita-
ble tolling." Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 393 (1982). Both equitable estoppel and equitable tolling
operate, in a practical sense, to toll a limitations period.
Although the Supreme Court and our court have occasionally
conflated the two doctrines, see, e.g., Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 96 (1990); Bowden v. United
States, 106 F.3d 433, 438 (D.C. Cir. 1997), they have distinct
criteria. Whereas equitable tolling allows a plaintiff to avoid
the bar of the limitations period if despite all due diligence he
is unable to obtain vital information bearing on the existence
of his claim, Smith-Haynie v. District of Columbia, 155 F.3d
575, 579 (D.C. Cir. 1998), equitable estoppel in the statute of
limitations context prevents a defendant from asserting un-
timeliness where the defendant has taken active steps to
prevent the plaintiff from litigating in time, id. at 580; see
also Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-52
(7th Cir. 1990). Here, we treat appellant as asserting the
latter.
Again we begin with Ricks. There the Supreme Court
reaffirmed that "the pendency of a grievance, or some other
method of collateral review of an employment decision, does
not toll the running of the limitations periods." Ricks, 449
U.S. at 261 (citing International Union of Elec., Radio, and
Mach. Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-
40 (1976)). Appellee contends that because appellant's equi-
table estoppel argument rests only on an allegation that the
termination decision was being reconsidered, it is foreclosed
by Ricks. If that were all Currier alleges, we would agree.
In that regard, Gillette's statement promising appellant a
"fair and impartial investigation," standing alone, provides
inadequate support for appellant's equitable estoppel theory.
Similarly insufficient, by themselves, are Morgan's instruction
to "hang tight" and his assurance that "it's not over yet."
We think, however, that an employer's affirmatively mis-
leading statements that a grievance will be resolved in the
employee's favor can establish an equitable estoppel. See
Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518,
1532 (11th Cir. 1992) (sex discrimination plaintiff was given
"repeated assurances" that her salary would be raised to the
level that other workers were receiving); Coke v. General
Adjustment Bureau, 640 F.2d 584, 595 (5th Cir. 1981) (em-
ployer misrepresented to employee that it would reinstate
him). Under those circumstances, an employee understand-
ably would be reluctant to file a complaint with the EEOC for
fear he would jeopardize his chances to gain relief voluntarily.
Appellant has identified statements made by one of his
supervisors from which he concluded not only that he was
being reconsidered, but that he would be reinstated. Specifi-
cally, he asserted the following in his affidavit, describing a
meeting shortly before Thanksgiving 1996, "Mr. Gillette re-
ferred to Mr. Morgan as 'my boss.' Mr. Gillette said that Mr.
Morgan was my boss and would always be my boss," which,
in context, could be understood to mean that Currier would
be triumphant. To be sure, it is a bit of a stretch for
appellant to have inferred from these statements that appel-
lee intended to continue to employ him. But we cannot say,
at the summary judgment stage, that no reasonable factfinder
could find that this inference was plausible and that appellant
made the inference at the time. See Anderson, 477 U.S. at
249.8
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8 Although appellant's contract would have expired by its terms
on June 30, 1996 wholly apart from the May 14, 1996 termination
decision, appellant had earlier been involved in negotiations with
several of appellee's managers regarding a contract renewal. Ap-
pellant thus might reasonably have inferred from Gillette's state-
III.
Thus far we have discussed only appellant's retaliation
claim. Appellant also asserted in his complaint a claim of
hostile work environment sexual harassment, and did not
carefully explain to the district court or to us how the finality
and equitable estoppel arguments were applicable to his
hostile environment theory.
Here we can be brief. As with his retaliation claim,
appellant was obliged to file an EEOC complaint within 180
days of the "[precise] unlawful employment practice," Ricks,
449 U.S. at 257, of which he complains. The last day on
which he could have been subjected to hostile environment
sexual harassment was his last day at work; thereafter he
was not in a work environment, let alone a hostile one. See
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993);
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-67
(1986). Giving appellant the factual benefit of the doubt, the
district court assumed his last day of work to be the day his
contract expired, June 30, 1996. Counting from that date,
appellant's EEOC complaint was filed 281 days later on
March 28, 1997, which is too late.
Appellant's finality and equitable estoppel arguments are
inapposite to his hostile environment claim. Gillette's assur-
ance that O'Brien's termination decision was not a final
determination goes only to the allegedly retaliatory termi-
nation--the hostile environment occurred, and appellant had
notice of it, when he was at work. Similarly, Gillette's
misleadingly optimistic statements suggesting that appellant
would be rehired could not have been misleading as to
appellee's position toward the hostile environment allegedly
created by O'Brien. Those statements could only lull appel-
lant into believing that his retaliation claim would be remed-
ied, not into believing that the already experienced harm from
the episodes of hostile environment sexual harassment would
somehow be cured. Accordingly, the district court correctly
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ments that, in addition to the grievance being resolved in his favor,
a new contract was on the horizon.
granted summary judgment in favor of appellee on the hostile
environment claim.
* * * *
For the foregoing reasons, the district court's decision to
grant summary judgment to appellee is reversed on appel-
lant's retaliation claim and affirmed on appellant's hostile
work environment claim.
So ordered.