IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51025
(Summary Calendar)
EVANGELINA ULANOFF
Plaintiff-Appellant
versus
WILLIAM J. HENDERSON, Post Master General, United States Postal
Service
Defendant-Appellee
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Appeal from the United States District Court
for the Western District of Texas
(97-CV-534-OG)
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November 20, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Evangelina Ulanoff appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee
William J. Henderson in his capacity as Post Master General of the
United States Postal Service (“Post Office”), dismissing her claims
of sexual harassment and retaliation for engaging in protected EEO
activity. Ulanoff contends that she was sexually harassed by her
supervisor and that because she reported this, she was demoted from
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
acting supervisor to mail carrier. We affirm the decisions of the
district court, concluding that the record supports the grant of
summary judgment.
I. Facts and Proceedings
Evangelina Ulanoff, an Hispanic, began her career with the
Post Office as a PS-5 letter carrier in 1981. In 1987, she was
promoted to the position of acting supervisor via the agency’s 204-
B program. She remained in that position for approximately six
years, most of which was spent at stations in San Antonio, Texas,
where Thomas Bertetti was the station manager.
Ulanoff alleges that Bertetti repeatedly subjected her to
sexual harassment, both verbally and physically, during this time.
Ulanoff states that Bertetti regularly called her into his office
for closed-door meetings during which he asked her offensive
questions about her personal life and her marriage, and that on one
occasion he touched her breast. Ulanoff also alleges that Bertetti
threatened to tell her husband that he (Bertetti) had had sexual
relations with her, which she insists never occurred. Ulanoff
reported Bertetti’s behavior to her immediate supervisor but, as
Bertetti was his supervisor as well, her supervisor stated that he
could do nothing to help her.
Ulanoff was eventually removed from Bertetti’s supervision,
but after an absence of a year and a half, she was returned to his
supervision. Ulanoff claims that Bertetti informed her that he had
2
“made a deal” with area manger Pedro Casias to have her returned to
his (Bertetti’s) supervision.
Ulanoff stated that she approached Casias on a number of
occasions, asking that she be removed from Bertetti’s supervision
because of the persistent pattern of sexual harassment. Casias
appears finally to have agreed to this but informed Ulanoff that
she must explain the reasons for the transfer to Bertetti, which
she never did. Ulanoff claims that when Casias learned that she
had not thus informed Bertetti, he (Casias) was “highly upset.” In
fact, according to Ulanoff, Casias had been so angry that, before
she quit, he reassigned her to the post of mail carrier.
Regardless of the reasons, however, none dispute that, after she
was transferred from Bertetti’s supervision, Ulanoff continued to
work as an acting supervisor for about a year and a half. She
served in that capacity at two different stations until she was
removed from that position and re-assigned as a mail carrier.
On June 9, 1993, eleven months after her last contact with
Bertetti and twenty two days after her removal from the position of
acting supervisor, Ulanoff requested an appointment with an Equal
Employment Opportunity (“EEO”) counselor. Fourteen days later, she
filed a written request for counseling. Ulanoff’s only previous
contact with an EEO counselor had been in a February 1993 telephone
conversation with Alice Orta, who denies that Ulanoff sought
counseling during that call. Ulanoff, in contrast, alleges that
3
Orta urged her not to file a complaint, as doing so would
constitute “career suicide.”
Ulanoff filed a formal complaint of discrimination with the
Post Office a few months later. The Post Office accepted only the
complaint about her removal from the acting supervisor position,
rejecting Ulanoff’s other complaints because she had failed to
cooperate when asked for specific dates and names regarding her
sexual harassment claim and for more specific information regarding
her other claims. Subsequently, however, the Equal Employment
Opportunity Commission, Office of Federal Operations (“EEOC”)
reinstated these claims, finding the rejection improper in light of
the Post Office’s failure to warn Ulanoff that her complaint would
be dismissed if she did not cooperate.
Ulanoff filed two complaints of employment discrimination with
the EEOC against the Post Office. In the first she alleged
(1) discrimination on the basis of sex and national origin, and (2)
retaliation on the basis of her prior EEO activity ( collectively
the “sexual harassment complaint”). In Ulanoff’s other EEOC
complaint, she alleged that the decision not to promote her to the
position of supervisor was based on (1) sex and national origin
discrimination and (2) retaliation for her prior EEO activity (the
“non-promotion complaint”). The EEOC administrative law judge
(“ALJ”) recommended deciding in favor of Ulanoff, finding
actionable sexual harassment in the sexual harassment complaint,
sex discrimination in the non-promotion complaint, and retaliation
4
for protected EEO activity in both complaints. The Post Office
chose not to adopt any of these recommendations, however, finding
the sexual harassment complaint to have been untimely filed and
declining to consider the merits of Ulanoff’s other complaints.
Ulanoff then filed this lawsuit in district court, alleging
that she was (1) sexually harassed by her supervisor, Thomas
Bertetti, (2) removed from the Postal Service’s 204-B program in
retaliation for complaining to the EEOC about that harassment, and
(3) denied promotion to supervisor in retaliation for her EEO
activity and because of her sex. The Post Office filed motions for
summary judgment on all three charges and the district court
granted these motions. Ulanoff then filed a motion for
reconsideration of the court’s summary judgment on her first and
third claims.
After further briefing, the district court affirmed its
dismissal of the sexual harassment claim as untimely and the sex
discrimination claim for non-promotion as unmeritorious. The court
did reinstate the claim for retaliatory non-promotion, however,
which claim proceeded to trial. At the conclusion of the trial,
the jury returned a verdict for the Post Office.
Ulanoff filed this appeal, limited to the issues of the
district court’s dismissal of the sexual harassment complaint as
untimely and the retaliatory removal claim on its lack of merit.
She did not appeal either the district court’s grant of summary
judgment on the non-promotion claim grounded in sex discrimination
5
or the jury’s verdict on the non-promotion claim grounded in
retaliation.
II. Analysis
A. Standard of Review
We review a district court’s grant of summary judgment de
novo.1 In so doing, we “review the record independently, make any
factual inferences in favor of the nonmovant, and then ask whether
the movant is entitled to judgment as a matter of law.”2
B. Timeliness of the Sexual Harassment Claim
Ulanoff contends that the district court erred in rejecting
her sexual harassment claim against the Post Office as untimely.
The court ruled that she had not complied with the requirement of
29 C.F.R. § 1614.105(a)(1) which directs that she “initiate contact
with a Counselor within 45 days of the date of the matter alleged
to be discriminatory.” During both the processing of her
administrative complaint and discovery for her civil suit, Ulanoff
stated that she was sexually harassed by Thomas Bertetti, who had
been her supervisor from August 1987 until March 1991 and again
from July 1992 until September 1992. Ulanoff first contacted EEO
counselor Alice Orta in February 1993, at which time Ulanoff
apparently neither made a formal complaint nor requested
1
See Degan v. Ford Motor Company, 869 F.2d 889, 892 (5th
Cir. 1989).
2
Id.
6
counseling. Ulanoff did not formally request counseling until June
23, 1993. Facially then, Ulanoff did not report her claim timely.
1. Estoppel
There are, however, a number of exceptions to the 45 day
limit, namely equitable estoppel, equitable tolling, and waiver.3
Ulanoff contends that the Post Office is estopped from raising the
issue of timeliness as it did so only after the ALJ issued his
report recommending a finding of discrimination. Her reliance on
Abernathy v. Brown,4 an EEOC decision in which the Commission held
that an agency is estopped from raising a claim of untimeliness
unless it does so in the EEOC hearing, is misplaced. First, the
relevant language in Abernathy is dicta; furthermore, we are not
bound by the decisions of the EEOC. When presented with Ulanoff’s
claims, the Post Office investigated. The EEOC hearing is part of
this investigative process, in which the ALJ recommends a decision
that the agency is free to accept, reject, or modify as it sees
fit. Estoppel is typically granted in situations bordering on
misrepresentation, as when the defendant’s conduct induces the
plaintiff to refrain from exercising her rights.5 Ulanoff’s sexual
harassment complaint was initially presented as a continuing
violation that occurred from 1987 until May 18, 1993. That being
3
See 29 C.F.R. § 1614.604(c).
4
EEOC Appeal No. 01962216, 1997 WL 90886 (Feb. 26, 1997).
5
See Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878
(5th Cir. 1991), rev’d on other grounds, 39 F.3d 537 (5th Cir.
1994).
7
so, it is obvious why the Post Office did not raise the issue of
timeliness at that juncture.
Ulanoff claims that the Post Office’s failure to assert the
limitations defense induced her not to file her complaint within
the statutory period, which should estop the Post Office from
maintaining its defense of time bar. The evidence demonstrates,
however, that the 45 day window had closed long before Ulanoff ever
filed her complaint. That being the case, Ulanoff cannot
reasonably claim that the Post Office’s failure to raise the issue
of timeliness somehow prevented her from contacting an EEO
counselor within the specified time period.
Ulanoff presents three additional arguments in an effort to
support her equitable estoppel claim. First, she argues that a
widespread fear and mistrust of the EEO process pervaded the San
Antonio post office stations, making employees inclined to turn to
the EEO only as a last resort. The record contradicts this
contention; instead, it shows that San Antonio postal employees
regularly availed themselves of the EEO process. Second, Ulanoff
contends that when she contacted EEO counselor Alice Orta, Orta
discouraged her from filing a complaint or otherwise pursuing
action against the Post Office, telling her, as noted, that doing
so would be “career suicide.” Whether or not this occurred is
irrelevant, however, as Ulanoff’s first conversation with Orta took
place well after the expiration of the 45 day period, rendering
this argument moot. Third, Ulanoff contends that when she informed
8
her supervisors of the harassment she had suffered while under
Bertetti’s supervision, each supervisor told her either that he
could not or would not help her. Ulanoff does not contend, though,
that her supervisors in any way withheld information about the EEOC
process, misled her, or dissuaded her from pursuing other remedies.
As each of her arguments is unavailing, Ulanoff‘s invoking of the
doctrine of equitable estoppel is unavailing.
2. Equitable Tolling
Ulanoff next advances equitable tolling as an exception to
time bar. “Equitable tolling focuses on the employee's ignorance,
not on any possible misconduct by the employer.”6 But, as Ulanoff
has not contended that she was unaware of her rights or of the EEO
process generally, this exception is inapplicable.
3. Waiver
Regarding waiver, we note that the Post Office had not made a
finding of discrimination when it raised the defense of time bar.
Therefore, Ulanoff cannot maintain the position that a federal
agency “by merely accepting and investigating a tardy complaint,
automatically waives its objection to the complainant’s failure to
comply with the prescribed time delays.”7 On the contrary, “to
waive a timeliness objection, the agency must make a specific
finding that the claimant’s submission was timely.”8 As the Post
6
Id.
7
Oaxaca v. Roscoe, 641 F.2d 386, 389 (5th Cir. 1981).
8
Rowe v. Sullivan, 967 F.2d 186, 190 (5th Cir. 1992).
9
Office made no such finding here, it did not waive its right to
assert a timeliness objection when it failed to advance it at the
EEOC hearing.
4. Continuing Violation
Ulanoff nevertheless continues to assert that the sexual
harassment she suffered was a continuing violation perpetrated by
the Post Office, so that in fact her complaint was filed within the
45 day window. To invoke the continuing violation doctrine, a
plaintiff must point to a series of related acts of discrimination,
at least one of which falls within the 45 day limitation period.9
A plaintiff may not use this doctrine to resurrect past
discrimination, even if the effects of that discrimination linger.10
“This theory of continuing violation has to be guardedly employed
because within it are the seeds of the destruction of statutes of
limitation in Title VII cases.”11 Moreover, the continuing
violation theory does not alleviate a plaintiff’s obligation to
demonstrate that the harassment was both perpetrated on her and
negatively affected her.
After carefully reviewing the record in light of Ulanoff’s
arguments, we discern no support for her contention that the
harassment was a continuing violation. The record gives no
9
See Berry v. Board of Supervisors of L.S.U., 715 F.2d 971,
979 (5th Cir. 1983).
10
See id.
11
Abrams v. Baylor College of Medicine, 805 F.2d 528, 533
(5th Cir. 1986).
10
indication that Ulanoff was harassed by anyone other than Bertetti,
and he retired in October 1992. Thus, she cannot and has not shown
that she suffered any harassment within the relevant 45 day window
for filing her complaint. The Post Office’s affirmative defense of
time bar is valid.
C. The Retaliatory Removal Claim
Ulanoff alleged that she was removed from her 204-B job of
acting supervisor in retaliation for having engaged in protected
EEO activity. To establish a claim of reprisal discrimination,
Ulanoff must show that (1) she engaged in activity protected by
Title VII, (2) an adverse employment action occurred, and (3) there
was a causal connection between these two events.12 Ulanoff has
shown that she engaged in protected activity by reporting her
claims to an EEO counselor and filing a complaint with the EEOC.
She has also shown that she suffered an adverse employment action,
when she was removed from a 204-B position as acting supervisor and
returned to her former status of mail carrier. Like the district
court, however, we conclude that Ulanoff has failed to establish
the required causal link between her protected activity and the
adverse employment action that she suffered.
For Ulanoff to show a causal connection, she must demonstrate,
at a minimum, that those responsible for her removal from the 204-B
position were aware that she had filed a complaint against the
12
See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir.
1996).
11
agency based on her supervisor’s alleged misconduct. The record,
however, does not support this contention, containing no evidence
that those responsible for the relevant employment decision had any
knowledge of her harassment complaint. Neither is there any
evidence implying that those who made the decision to demote
Ulanoff did so in retaliation for her protected activity. In fact,
the record actually shows that those who Ulanoff claims acted in
retaliation (such as Casias) had no input in the decision to return
her to her former position as a mail carrier.
III. Conclusion
After carefully reviewing the briefs of the parties and
relevant portions of the record, we conclude that the district
court did not err in granting summary judgment for the Post Office,
dismissing Ulanoff’s claims of sexual harassment and retaliatory
removal. Her sexual harassment claim is barred as untimely filed,
and she failed to produce probative evidence of a causal connection
between her protected EEO activity and her removal from the
position of acting supervisor. The judgment of the district court
is, in all respects,
AFFIRMED.
12