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Teemac v. Henderson

Court: Court of Appeals for the Fifth Circuit
Date filed: 2002-07-26
Citations: 298 F.3d 452
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            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.
                                                      1981) (avoiding standard of review question by
tolling.
                                                      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).
                                                               5
See Century Marine Inc. v. United States, 153                     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
     (...continued)                                        “notified” nor “otherwise aware” of the
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                                                          7
     FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir.                (...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-
                                                              9
Terrorism and Effective Death Penalty Act’s                     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
                                                                 11
requirement counted as notification, even if                        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
                                                             12
F.2d 473, 478 (5th Cir. 1991) (finding that                     (...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