Opinion
Civil No. 99-7151-KI
February 1, 2001
The Law Office of Bradley P. Avakian, P.C., Portland, Oregon 97204. Attorney for Plaintiff
Ronald K. Silver, Assistant United States Attorney Portland, Oregon 97204. Attorney for Defendant.
OPINION AND ORDER
Plaintiff Donald Tucker was unable to become a chaplain with the Bureau of Prisons because, in the Bureau's opinion, he did not hold the required degree or its equivalent. Tucker alleges a religious discrimination claim under Title VII. Before the court is defendant's motion for summary judgment (#11).
FACTS
Donald Tucker has been employed by the Bureau of Prisons ("BOP") for over 18 years, currently as a drug treatment specialist. He is also an ordained minister for the Church of the Nazarene. Tucker became interested in becoming a chaplain for the BOP. The BOP has long required a Master's of Divinity degree for chaplain applicants. To address shortages of clergy from particular religions needed to minister to the inmates, the BOP has made some exceptions and accepted academic equivalents for certain denominations. For example, until 1997, no Muslim seminary offered a Master's of Divinity degree so no Islamic clergy would have been able to meet the strict requirement.
Although Janet Reno, as the former attorney general of the United States, is the named defendant, I will discuss the facts as if the BOP is the defendant.
Tucker started a Master's of Divinity program in 1991. When he found the program repetitive of his undergraduate classes, Tucker spoke to Father Charles Riggs, chaplaincy administrator for the BOP, about changing his degree program. Riggs told Tucker that the Master's in Christian Counseling, a program Tucker was considering, would meet the equivalency requirement of the BOP. Tucker changed programs and eventually earned the Master's in Christian Counseling degree.
Riggs denies this but I must view the evidence in the light most favorable to the nonmoving party.
In September 1995, the BOP formalized the equivalency requirement. It broke down the required number of credits among four broad topics. Tucker applied twice for a chaplain position after that date and was turned down because the BOP decided that the degree he earned was not equivalent to the Master's of Divinity.
Tucker contacted an EEO counselor about the alleged discrimination. When the issue was not informally resolved, Tucker received notice of his appeal rights on September 15, 1997. He filed his formal administrative complaint by mail in an envelope postmarked October 1, 1997. Tucker had a hearing before an administrative law judge, who recommended dismissal on July 21, 1999, because of untimeliness. The Department of Justice then issued a final agency decision ruling against Tucker on the merits.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
DISCUSSION
As a federal employee, Tucker must exhaust his administrative remedies before filing suit. Vinieratos v. U.S. Depart. of Air Force, 939 F.2d 762, 768 (9th Cir. 1991) (Title VII). The formal complaint must be filed within 15 days of receipt of the notice of appeal rights. 29 C.F.R. § 1614.106(b). A document is timely if it is received or postmarked before the expiration of the filing period. 29 C.F.R. § 1614.604(b).
Tucker received the notice by certified mail on September 15 and filed his complaint on October 1, 16 days later. Thus, his filing is one day late. Tucker suggests no reasons why the statute of limitations should be equitably tolled. Instead, he relies on Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995). In Girard, the IRS rejected plaintiff's complaint as untimely. Plaintiff appealed this decision to the EEOC, which found that the plaintiff's complaint was timely. The IRS did not seek review of the EEOC decision, accepted the complaint, and began an investigation. Plaintiff's administrative complaint was dismissed on the merits and plaintiff filed an action in federal court. Id. at 1245-46. The court held that the EEOC determination that the complaint was timely was binding on the IRS. Consequently, the court would not allow the IRS a "second bite at the apple" on this defense in the district court. Id. at 1247.
This case is distinguishable from Girard. Here, the EEOC administrative judge dismissed Tucker's case as untimely for failing to contact an EEO counselor within the 45-day period. The judge did not address the timeliness of the formal complaint within the 15-day filing period, although the BOP raised the issue. The Department of Justice Final Decision disagreed with the EEOC and found that Tucker contacted the EEO counselor within the deadline. Then it noted that because the EEOC administrative law judge specifically declined to address the lateness of complainant's formal complaint, it would address the merits of the case. Thus, there was no EEOC determination binding the BOP which was favorable to Tucker.
Consequently, this issue falls back to the law stated in Boyd v. United States Postal Service, 752 F.2d 410 (9th Cir. 1985), which held that the receipt and investigation of a complaint does not waive objection to the failure to comply with filing time limits when the investigation does not result in an administrative finding of discrimination. Id. at 414. The BOP continually raised the untimeliness issue. It never specifically found that the complaint was late but that it would decide it anyway. The BOP did not waive the timeliness issue. Tucker missed the statute of limitations by one day. Summary judgment is granted against his claim.
CONCLUSION
Defendant's motion for summary judgment (#11) is granted. The action is dismissed.
IT IS SO ORDERED.