Opinion
Civil Action No. 4:01-CV-835-BE
October 22, 2002
MEMORANDUM OPINION AND ORDER
A. PROCEDURAL HISTORY
Plaintiff LeRoy Lee filed an administrative complaint on June 8, 1994 alleging that his employer, the Federal Deposit Insurance Corporation ("FDIC"), had discriminated against him based on his race and sex. (Def Mot. to Dismiss, App., Tab A, p 4.) Lee relied upon the following conduct to support his complaint:
(1) on February 1, 1994, he was placed on leave restriction,
(2) on February 3, 1994, he received a letter of warning for alleged abuse of leave;
(3) between March 11, 1994, and May 17, 1994, he was charged with thirty (30) hours of Absence Without Official Leave (AWOL);
(4) on April 1, 1994, he received a formal letter of reprimand for alleged abuse of leave;
(5) on approximately April 17, 1994, his area of responsibility was reduced as the number of financial institutions in his portfolio decreased; and,
(6) on May 5, 1994, he was excluded from a work meeting
(Def Mot. to Dismiss, App., Tab C, p. 7)
The FDIC issued its Final Agency Decision on May 31, 1996, finding that Lee failed to establish a prima facie case of discrimination based on race or gender and that the agency had articulated legitimate, non-discriminatory reasons for its actions. (Def Mot. to Dismiss, App., Tab C, p. 14). The Equal Employment Opportunity Commission ("EEOC") affirmed the Final Agency Decision on appeal on September 10, 1998. (Def Mot. to Dismiss, App., Tab D, p 22.) Lee's request for reconsideration was denied by the EEOC on July 13, 2001, and Lee was informed of his right to file a civil action within ninety (90) days from the date he received the EEOC's decision. (Compl., App.).
On October 18, 2001, Lee filed a complaint against the FDIC in the United States District Court for the Northern District of Texas, Fort Worth Division. The FDIC has filed a motion to dismiss Lee's complaint on the grounds that Lee (1) failed to file his civil action within the time prescribed by the statute of limitations, (2) failed to exhaust available administrative remedies, and (3) failed to comply with the rules governing service of process when a government agency is a defendant. Because the FDIC relied upon extraneous materials as support for its motion to dismiss, the court converted the motion to one for summary judgment and granted all parties an extension of time to submit any additional materials The deadline for additional submissions has expired and the FDIC's motion is now ripe for determination.
B. STANDARD OF REVIEW
Summary judgment is appropriate 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 judgment as a matter of law FM). R Civ. P.56(c), Celotex Corp. v. Catrett, 477 U.S.317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct 2505, 2509-10, 91 L.Ed 2d 202 (1986) The court views all of the evidence and inferences therefrom in the light most favorable to the nonmovant Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir 1993).
The movant bears the initial burden of showing that no genuine issue of material fact exits, but once the movant makes such a showing, the burden shifts to the nonmovant to produce competent summary judgment evidence of the existence of a genuine issue of material fact Anderson, 477 U.S at 256-57, 106 S.Ct at 2514, 91 L.Ed.2d 202. An issue is genuine if there is sufficient evidence for a reasonable jury to return a verdict in favor of the nonmovant. Id. at 248, 106 S.Ct. at 2510. A fact is material if its resolution would affect the outcome of the suit under the governing law. Id.
C. STATUTE OF LIMITATIONS
Employees in the federal sector who believe they have been the victim of discrimination follow a multi-level administrative complaint process. The agency charged with the discriminatory conduct receives the initial complaint, conducts an investigation, and at the conclusion of the investigation, issues a final agency decision. 29 C.F.R. § 1614.106-110. If not satisfied with the final agency decision, the complainant must either appeal to the EEOC within thirty (30) days or commence a civil action within ninety (90) days. 42 U.S.C. § 2000e-16(c); 29 C FR. §§ 1614.402, 1614.407 If an appeal is taken to the EEOC, the complainant has ninety (90) days from receipt of the EEOC's decision on appeal to commence a civil action. 42 U.S.C. § 2000e-16(c).
The EEOC's denial of Lee's request for reconsideration is dated and certified as mailed on July 13, 2001. (Compl , App.). The denial letter notes that, for timeliness purposes. there is a presumption that the decision was received within five (5) calendar days after it was mailed. The Fifth Circuit Court of Appeals has not directly addressed the issue, but other federal courts have followed a presumption in Title VII cases that a letter mailed to the charging party's address of record is received by the addressee (and the 90-day limitations period begins to run) three to five days after the letter is mailed. See, e.g., Baldwin County Welcome Cir. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (assuming without discussion that Federal Rule of Civil Procedure 6(e) created presumption that EEOC notice was received three days after mailing). Lozano v. Ashcroft, 258 F.3d 11 60. 1165 (10th Cir. 2001 ) (finding employer and employee subject to three-or-five-day presumption for receipt of notice); Loyd v. Sullivan, 882 F.2d 218 (7th Cir. 1989) (following five-day presumption); Cook v. Providence Hosp., 820 F.2d 176, 179 n. 3 (6th Cir. 1987) (applying five-day presumption); Edwards v. Galveston-Texas City Pilots, 203 F. Supp.2d 759, 775 n. 9 (S.D. Tex. 2002) (finding action untimely under either three-or-five-day presumption) Even using the more beneficial five-day rule, Lee filed his complaint on October 18, 2001 — ninety-two (92) days after the date he presumptively received notice of the EEOC's action
It is undisputed that the EEOC notice was correctly addressed.
Federal Rule of Civil Procedure 6(e) provides that
[w]henever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail. 3 days shall be added to the prescribed period.
Lee objects to the FDIC's arguments of untimeliness, and notes that the postmark on the letter he received from the EEOC bears the date July 16, 2001 despite the EEOC affirmation that the letter was deposited in the mail on the previous Friday, July 13, 2001. Lee's argument does not rebut the five-day presumption, nor has Lee submitted any competent evidence of the actual date he received notice in order to trump the presumptive date of receipt.
The filing requirements of Title Vii are not jurisdictional prerequisites to bringing suit in federal court, but are more akin to statutes of limitation and are subject to the doctrines of waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U 5 385, 393, 102 S.Ct 1127, 71 L.Ed.2d 234 (1982); Nilsen v. City of Moss Point, 701 F.2d 556, 562 (5th Cir. 1983). Equitable tolling applies to the statutory time limits set out in 42 U.S.C § 2000e-16(c) See generally Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L Ed.2d 435 (1990). But the Supreme Court has also cautioned against too freely tolling the ninety-day period, stating that the procedural requirements for gaining access to the federal courts are not to be disregarded out of a vague sympathy for particular litigants Baldwin County Welcome Cir., 466 U.S. 147, 152, 104 S.Ct 1723, 80 L.Ed.2d 196 (1984). See also Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir 1992) (noting that equitable considerations justifying tolling have been applied sparingly).
The Supreme Court recognized in Irwin v. Departmnent of Veterans Affairs, 498 U.S 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), that equitable tolling has been allowed in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. See id at 96, 111 S.Ct at 458 See also Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir. 2002) Tolling may also be appropriate where the EEOC's notice did not adequately inform the plaintiff of the ninety-day time limit, where a motion for appointment of counsel is pending, or where the court has led the plaintiff to believe that he has satisfied the statutory prerequisites to suit. Baldwin County Welcome Cir., 466 U.S. at 151, 104 S.Ct. at 1726. And the Fifth Circuit has acknowledged that equitable tolling may apply where an employee's lack of sophistication prevents him from understanding Title Vii procedures. Teemac, 298 F.3d at 457. Courts are much less forgiving in receiving late filings, however, when the claimant has not exercised due diligence in preserving his legal rights Irwin, 498 U.S. at 96, 111 S.Ct. at 458
Although there may be situations in which equitable tolling is appropriate, this is not one of those situations. First, Lee has not argued that the ninety-day limitation period should be tolled in the instant case Moreover, there are no facts apparent in the record that would justify equitable tolling.
The EEOC provided sufficient notice to Lee that his complaint must be filed within ninety (90) calendar days of receiving the EEOC's Denial of Request for Reconsideration. The Certificate of Mailing also cautioned that, for timeliness purposes, the Commission would presume that the decision was received within five calendar days. Nonetheless, Lee filed his complaint with this court on October 18, 2001, ninety-two (92) days after the presumed date of receipt Lee has not provided any reason other than his own lack of diligence for his failure to timely file his civil action The principles of equitable tolling do not apply, and Lee's complaint is untimely
D. EXHAUSTION OF ADMINISTRATIVE REMEDIES
The FDIC further asserts that this action must be dismissed because Lee has not exhausted his remedies. Before bringing suit, an employee must exhaust his administrative remedies against his federal employer. See Brown v. Genemal Services Admnin., 425 U.S. 820, 832-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Exhaustion of administrative remedies is a jurisdictional prerequisite to federal jurisdiction National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir. 1994) A cause of action may be based not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial charges of discrimination Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir 1995); National Ass'n of Gov't Employees, 40 F.3d at 711-12.
On June 8, 1994, Lee filed an EEOC complaint alleging discrimination based on race (black) and sex (male). (Def Mot. to Dismiss, App., Tab A, p. 4) On August 9, 1994, the FDIC sent a certified letter to Lee acknowledging that the issues to be investigated were race and sex discrimination. ((Def Mot to Dismiss, App, Tab B, p 5) Lee was also asked to clarify any misunderstanding of the issues, but there is no evidence that he considered the FDIC's statement of the issues to be erroneous. The EEOC later issued its own decision addressing only the issues of race and sex discrimination (Def Mot. to Dismiss, App., Tab D, p. 17)
On October 18, 2001, Lee filed the instant complaint in the United States District Court for the Northern District of Texas. Lee's complaint, verbatim, reads:
Plaintiff was employed to work alone (sic) with four other employees to investigate accounting records of failed banks. Shortly after being employed plaintiff became the sole employee assigned to the investigation of accounting records, alone (sic) with an increasing workload.
Plaintiff after 5 years had developed a condition and was placed under a doctors' (sine) care. Although continuing to work management refuse (sic) to accept the doctor (sic) leave slips and letters. Management proceeded to consider the plaintiff absent without leave and went as far as to report the plaintiff absent knowing the plaintiff was at work. Management additionally provide (sic) false information concerning meetings and withheld previous management evaluations.
During the six months the plaintiff was under a doctors (sic) care he was written, (sic) up given a raise and fired.
For the first time, Lee seems to be asserting disability discrimination, but a claim of disability discrimination was not included in the initial charge he filed with the FDIC or pursued with the EEOC, neither is it like or related to the initial charge's allegations. Lee does not allege exhaustion of his administrative remedies or explain why he should be excused from the exhaustion requirement.
Lee's complaint does not appear to reference race or sex. although he reasserted in the joint status report the parties filed in this action in August 2002 that he is indeed pursuing a race-based Title VII action As discussed supra, his claims of race or sex discrimination by the FDIC are time-barred.
Because Lee failed to exhaust administrative remedies, this court lacks subject matter jurisdiction over Lee's complaints of disability-related discrimination by his former employer.
E. SERVICE OF PROCESS
The FDIC also asserts that Lee has not effected proper service as required by Rule 4 of the Federal Rules of Civil Procedure. Given the disposition of this case because of its untimeliness and exhaustion issues, the court deems it unnecessary to address the merits of this argument However, the court observes that Lee has been given a previous opportunity to cure his failure to serve the Attorney General for the United States or the United States Attorney for the Northern District of Texas, but has not taken advantage of that opportunity. See generally FED. R Civ. P. 4(i).
Lee makes a vague reference to the 2001 anthrax scare that significantly slowed mail service to and from the Washington. D.C. area. The court does not find this excuse to be persuasive. Lee was cautioned in March 2002 that his case was subject to dismissal because he had not Filed proof of service, and he was subsequently granted an extension of time until May 15. 2002 to complete service. Lee has not provided proof of service on either the Attorney General or the United States Attorney for this district.
It is ORDERED that Defendant's Motion for Summary Judgment, filed August 7, 2002, is granted.