Wilson v. Secy Dept Vet Affair

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

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No. 95-30060

(Summary Calendar)
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FREDDIE M. WILSON,

Plaintiff-Appellant,

versus

SECRETARY, DEPARTMENT OF VETERANS
AFFAIRS, obo, VETERANS CANTEEN
SERVICES, ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court
For the Western District of Louisiana
(CV 93 2179)
_______________________________________________
(August 23, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Freddie Wilson filed an action against Jesse Brown, Secretary

of the Department of Veterans Affairs, James Donohoe, Director of

Veterans Canteen Services, and Charles Lizyness, alleging

violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e

(1988), and claims under the Federal Tort Claims Act, 28 U.S.C.

*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
§§ 2671-2680 (1988). The district court issued an order

dismissing both claims or in the alternative granting summary

judgment against Wilson. She appeals the court's ruling on the

Title VII claim. We affirm.

I

On December 17, 1991, Wilson filed a formal complaint with the

Equal Employment Opportunity Commission ("EEOC"), alleging that her

supervisor had sexually harassed her during her employment with the

Department of Veterans Affairs. The EEOC found her application

untimely and dismissed her complaint. Wilson's attorney received

notice of the EEOC decision on May 3, 1993, and mailed a copy to

Wilson in Germany. Wilson received the decision on May 25, 1993,

and mailed a letter to the EEOC on May 28, 1993, discussing

information relating to her claim. On June 7, 1993, Wilson's

attorney submitted a Form 573 to the EEOC, requesting an appeal of

the Agency's decision.1 The EEOC found that the notice violated

the thirty-day time limit on such appeals and denied the appeal.2

Subsequently, Wilson brought this action under Title VII of the

1
Form 573 is the EEOC's "Notice of Appeal/Petition" form. 29 C.F.R.
§ 1614.403(a). Under the applicable regulations, "[t]he complainant should use
EEOC Form 573, Notice of Appeal/Petition, and should indicate what he or she is
appealing." Id.
Section 1614 became effective on October 1, 1992. 57 Fed. Reg. 12634
(1992). Wilson filed her complaint on December 17, 1991, before that section
became effective. The EEOC should, therefore, have processed her complaint under
the previous § 1613. Id. However, the time limit for appeal under § 1613 is
twenty days as compared to the thirty-day limit allowed by § 1614. 29 C.F.R.
§§ 1613.233, 1614.402. Under § 1613, even Wilson's letter of May 28 would have
been late; accordingly, we defer to the EEOC's decision to apply the more lenient
regulations to Wilson's appeal.
2
The Commission used May 3))the date when Wilson's attorney received
notice of the denial of her application))and June 7))the date that Wilson's
attorney filed the Form 753 with the EEOC))to establish that she had not appealed
within the thirty-day limit.

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Civil Rights Act and the Federal Tort Claims Act. The Secretary

moved for summary judgment, arguing that because Wilson's request

for appeal had been untimely, she had failed to exhaust her Title

VII administrative remedies, thereby barring her from bringing an

action in district court. The Secretary also argued that the

district court lacked subject matter jurisdiction over the FTCA

claim. The district court granted the motion for summary judgment

on the Title VII claim, and it dismissed the FTCA claim with

prejudice. Wilson now appeals.

II

Wilson contends that the district court should not have

granted summary judgment on her Title VII claim, arguing that the

Agency erroneously dismissed her appeal because (1) her letter of

May 28 was a notice of appeal filed within the statute of

limitations, and (2) alternatively, equitable considerations

entitle her to a tolling of the statute. We exercise de novo

review of the grant of a summary judgment. Duffy v. Leading Edge

Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). Summary judgment

"shall be rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the

affidavits if any show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c).

Wilson argues that the EEOC incorrectly decided that her

appeal was untimely. "If an EEOC charge is untimely filed, a suit

based upon the untimely charge should be dismissed." Barrow v. New

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Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir. 1991); Templeton

v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir. 1979) (per

curiam); see also National Ass'n of Gov't Employees v. City Pub.

Serv., 40 F.3d 698, 711 (5th Cir. 1994) ("[C]ourts have no

jurisdiction to consider Title VII claims as to which the aggrieved

party has not exhausted administrative remedies.").

We will reverse an agency's interpretation of its regulations

only if the decision is arbitrary or capricious. Motor Vehicle

Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42,

103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983) ("The scope of

review under the `arbitrary and capricious' standard is narrow and

a court is not to substitute its judgment for that of the

agency."); Wilson v. United States Dep't of Agric., 991 F.2d 1211,

1215 (5th Cir. 1993) (looking "at the agency's decision to

determine if it was reached in an arbitrary or capricious

manner."), cert. denied, ___ U.S. ___, 114 S. Ct. 1296, 127 L. Ed.

2d 649 (1994). "A decision is arbitrary or capricious only when it

is `so implausible that it could not be ascribed to a difference in

view or the product of agency expertise.'" Wilson, 991 F.2d at

1215 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S. Ct.

at 2867). "The agency decision need only have a rational basis,

and it does not have to be a decision which the court would have

made." Wilson, 991 F.2d at 1215.

Wilson argues that her letter to the EEOC on May 28 was an

appeal and should have satisfied the statute of limitations. EEOC

regulations provide that:

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 The complainant, agent, grievant or individual class
claimant (hereinafter complainant) must file an appeal
with the Director, Office of Federal Operations, Equal
Employment Opportunity Commission, at P.O. Box 19848,
Washington, DC 20036, or by personal delivery or
facsimile. The complainant should use EEOC Form 573,
Notice of Appeal/Petition, and should indicate what he or
she is appealing.

29 C.F.R. § 1614.403(a).

Wilson asserts nothing more than that this court should

consider her letter an appeal. Wilson provides no authority,

however, to support excusing her failure to comply with the

regulations. Also, the letter did not state that she was appealing

the EEOC's decision. We therefore hold that the Commission's

decision that Wilson did not file a timely appeal was not arbitrary

or capricious.

Wilson alternatively contends that equitable considerations

merit a tolling of the thirty-day time limit on filing an appeal to

the EEOC. EEOC regulations allow that "[t]he time limits in this

part are subject to waiver, estoppel and equitable tolling." 29

C.F.R. § 1614.604(c). A complaining party in a Title VII case

bears the burden of providing the justification for application of

equitable tolling principles. Nowlin v. RTC, 33 F.3d 498, 503 (5th

Cir. 1994); Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.

1988), cert. denied, 488 U.S. 1007, 109 S. Ct. 789, 102 L. Ed. 2d

781 (1989).

In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir.

1979), we discussed three possible bases for tolling: (1) the

pendency of a suit between the same parties in the wrong forum;

(2) plaintiff's unawareness of the facts giving rise to the claim

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because of the defendant's intentional concealment of them; and

(3) the EEOC's misleading the plaintiff about the nature of her

rights. See id. at 1302-03. None of these apply in this case, but

"Chappell does not hold that these three are the only bases for

tolling . . . ." Blumberg, 848 F.2d at 644-45. Therefore,

Wilson's inability to satisfy one of the bases for tolling under

Chappell is not necessarily fatal to her claim. However, we "have

generally been much less forgiving in receiving late filings where

the claimant failed to exercise due diligence in preserving his

legal rights." Irwin v. Department of Veterans Affairs, 498 U.S.

89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435 (1990); see also

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S. Ct.

1723, 1726, 80 L. Ed. 2d 196 (1984) (per curiam) ("One who fails to

act diligently cannot invoke equitable principles to excuse that

lack of diligence."); Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir.

1992) (requiring due diligence to warrant equitable tolling).

Wilson argues that despite all "due diligence," overseas

mailing delays caused her appeal to be untimely. Such delays, she

contends, are clearly a "circumstance beyond complainant's control"

and entitle her to equitable tolling. Wilson claims to have acted

with all due diligence but she provides no support for this

contention. She fails to explain why she could not have notified

her attorney of her intent to appeal in the event of a unfavorable

decision by the EEOC. She also fails to explain why she could not

have avoided overseas mail and communicated via telephone or

facsimile machine. Because it was within Wilson's power to

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ameliorate the circumstances that resulted in her untimely filing,

we agree with the D.C. Circuit that overseas delays do not warrant

tolling. See Rao v. Baker, 898 F.2d 191 (D.C. Cir. 1990) (holding

that mailing delays to Philippines did not justify tolling or

excuse lack of diligence).

Indeed, to some extent, we question the relevance of the

overseas delays to Wilson's claim for equitable tolling, because

her attorney could have responded for her. Notice to her attorney

constituted notice to Wilson, Irwin, 498 U.S. at 96, 111 S. Ct. at

458; see also 29 C.F.R. § 1614.402(b) ("If the complainant is

represented by an attorney of record, then the 30-day time period

. . . shall be calculated from the receipt of the required document

by the attorney."), and Wilson offers no explanation for her

attorney's failure to protect her rights. Accordingly, Wilson's

counsel's inaction does not warrant an extension of the limitations

period. See Irwin, 498 U.S. at 96, 111 S. Ct. at 458 (refusing to

toll a 30 day statute of limitations in a Title VII case, where the

plaintiff was late in filing because his attorney had been out of

the office when the EEOC notice was received, and holding that

"principles of equitable tolling . . . do not extend to what is at

best a garden variety claim of excusable neglect"). Wilson has

filed to meet her burden to show that the EEOC should have applied

equitable tolling to her appeal; therefore, the district court

properly granted summary judgment to the Secretary.

III

For the foregoing reasons, we AFFIRM the judgment of the

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district court.

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