Filed: Sep. 26, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10393 Summary Calendar _ MARGARET J. LEWIS, Plaintiff-Appellant, versus DONALD RUMSFELD, SECRETARY, DEPARTMENT OF DEFENSE, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 00-CV-28 _ September 21, 2001 Before JOLLY, BARKSDALE, and BENAVIDES Circuit Judges. PER CURIAM:* Margaret J. Lewis appeals the district court’s grant of summary judgment for the Army Air Force Exc
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 01-10393 Summary Calendar _ MARGARET J. LEWIS, Plaintiff-Appellant, versus DONALD RUMSFELD, SECRETARY, DEPARTMENT OF DEFENSE, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas USDC No. 00-CV-28 _ September 21, 2001 Before JOLLY, BARKSDALE, and BENAVIDES Circuit Judges. PER CURIAM:* Margaret J. Lewis appeals the district court’s grant of summary judgment for the Army Air Force Exch..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10393
Summary Calendar
_____________________
MARGARET J. LEWIS,
Plaintiff-Appellant,
versus
DONALD RUMSFELD, SECRETARY,
DEPARTMENT OF DEFENSE,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
USDC No. 00-CV-28
_________________________________________________________________
September 21, 2001
Before JOLLY, BARKSDALE, and BENAVIDES Circuit Judges.
PER CURIAM:*
Margaret J. Lewis appeals the district court’s grant of
summary judgment for the Army Air Force Exchange Service
(represented by the Secretary of Defense) in her suit claiming
discrimination in violation of the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et seq. Because we agree with the district
court’s holding that Lewis failed to properly exhaust her
*
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this opinion should not be published and is not precedent except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.
administrative remedies and that equitable tolling was
inapplicable, we affirm the grant of summary judgment dismissing
her complaint.
I
Until August 28, 1998, Margaret J. Lewis was employed by the
Army Air Force Exchange Service (“AAFES”) and worked for the base
exchange at Dyess Air Force Base in Abilene, Texas. At the point
of her involuntary resignation, Lewis was working as a Department
Manager. In September 1996, David Albaugh became the Dyess Main
Store Manager and Lewis’s second line supervisor. According to
Lewis, Albaugh nitpicked and harassed the older workers at the
Dyess exchange. Lewis claims that Albaugh often ridiculed her
because of her age, and once commented that Lewis was just “old and
senile.” Lewis turned 65 on July 9, 1998.
In July and August 1998, an investigation was conducted into
allegations that Lewis and other employees had used store coupons
from other stores to get discounts on merchandise to which they
were not entitled. Two other employees found to have used coupons
from other stores resigned during July of 1998. Although Lewis
argued that she had permission from management to use the coupons
and agreed to repay the difference, she was placed on
administrative leave on July 31, 1998.
On August 24, 1998, Lewis traveled from Abilene to the AAFES
headquarters in Dallas to meet with Sergeant Tracy Little of the
2
Inspector General’s office.1 They discussed Lewis’s complaints of
age discrimination, placement on administrative leave, and pending
termination. Sergeant Little told Lewis that she would investigate
her claims of age discrimination. Sergeant Little contacted Lewis
in September 1999,2 after Lewis had involuntarily retired, and told
her that AAFES’s actions appeared to be in compliance with the law.
Lewis filed a complaint of age discrimination with the Texas
Commission on Human Rights and the Equal Employment Opportunity
Commission on January 22, 1999. After filing this complaint, Lewis
was instructed, in a letter dated February 26, 1999, to contact an
EEO Counselor. She was provided a list of counselors in April
1999. Lewis contacted EEO Counselor Gail Woods on April 13, 1999,
and met with Woods for EEO counseling on May 7, 1999, to discuss
Lewis’s age discrimination claim. Lewis filed a formal
administrative complaint on June 25, 1999. AAFES dismissed the
administrative complaint because Lewis failed to contact an EEO
Counselor within forty-five days from the date of the adverse
personnel action, as required under 29 C.F.R. §1614.105(a)(1).
Lewis brought this suit against AAFES under the Age
1
The Inspector General’s office investigates claims of fraud,
waste and abuse, and ensures Agency compliance with relevant rules
and regulations. It is not clear from the record why Lewis chose
to go to the Inspector General’s office with her discrimination
complaint.
2
From the record and briefs, it is not clear whether Sergeant
Little contacted Lewis in September of 1998 or September of 1999.
That fact, however, does not determine the final outcome in this
case.
3
Discrimination in Employment Act (“ADEA”) on February 7, 2000. She
filed an amended complaint on October 3, 2000. The district court
granted AAFES’s motion for summary judgment on February 22, 2001,
holding that Lewis failed to comply with the federal regulations,
thereby failed to properly exhaust her administrative remedies, and
that equitable tolling was not appropriate in the circumstances.
Lewis has timely appealed.
II
We review the district court’s grant of summary judgment de
novo. Baldwin v. Daniels, 250 F.3d 943, 948 (5th Cir. 2001).
Lewis acknowledges that she had forty-five days from the date
of the discriminatory action to meet with an EEO counselor under
the administrative rules governing employee discrimination suits
against federal agencies. See 29 C.F.R. §1614.105(1).3 “Failure
to notify the EEO counselor in timely fashion may bar a claim,
absent a defense of waiver, estoppel, or equitable tolling.”
3
Section 1614.105(a) states
aggrieved persons who believe they have been
discrimination against on the basis of . . . age or
handicap must consult a Counselor prior to filing a
complaint in order to try to informally resolve the
matter.
(1) An aggrieved person must initiate contact with a
Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the
action.
Under 29 U.S.C. § 633a(c)-(d), Lewis could also have given the EEOC
thirty days’ notice of intent to file a lawsuit, as long as the
notice was within 180 days of the events giving rise to the
complaint, and then filed the lawsuit directly in federal court.
4
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). Although more
than forty-five days had passed between the date of the allegedly
discriminatory action and Lewis’s meeting with an EEO counselor,
Lewis contends, first, that her initial complaint of age
discrimination to the Investigator General’s office (“IG”)
satisfies the 29 C.F.R. §1614.105(a)(1) requirement and, second or
alternatively, that she is entitled to equitable tolling because
the IG failed to notify her of the relevant time limitations.
Lewis’s meeting with the Sergeant Little does not satisfy the
requirements of 29 C.F.R. §1614.105(a)(1) because Little is not an
EEO Counselor within the meaning of the regulation. An EEO
Counselor is appointed by the EEO Director of the applicable agency
and has significant duties that are defined in the regulations;
EEO Counselors must inform individuals of their rights and
responsibilities in writing, they must submit reports to the
agency, and they must inform individuals of the relevant time
frames. See 29 C.F.R. §1614.105(b); 24 C.F.R. §7.12. The names,
addresses and phone numbers of the EEO Counselors must be clearly
posted for employees to see. 29 C.F.R. §1614.102(b)(7). Allowing
plaintiffs to substitute complaints to other offices for counseling
with an EEO Counselor destroys the purpose of having EEO Counselors
who must comply with federal regulations. Thus, Lewis’s argument
that her complaint to the IG satisfies the section 1614.105(a)
requirement that she meet with an EEO counselor within forty-five
days is unpersuasive.
5
Lewis next argues that she is entitled to equitable tolling of
her claim because the IG did not inform her that she needed to file
any further complaint to preserve her rights. Furthermore,
because Sergeant Little of the IG’s office stated the opposite--
that she told Lewis to file a claim with an EEO Counselor and
directed her to the EEO Counselor’s office--there is a fact issue
as to what the IG told Lewis, which would preclude summary
judgment.
As we have often recognized, the time limits established in
the regulations are not jurisdictional; they are subject to the
traditional equitable defenses of estoppel and equitable tolling.
Conway v. Control Data Corp., 955 F.2d 358, 362 (5th Cir. 1992).4
Federal courts typically apply equitable tolling only “sparingly.”
Rowe v. Sullivan,
967 F.2d 186, 192 (5th Cir. 1992) (citations
omitted). Lewis has the burden of demonstrating facts that would
entitle her to equitable tolling. Hood v. Sears Roebuck,
168 F.3d
4
The regulations even expressly allow the agency or the EEOC
to extend the 45-day time limit
when the individual shows that he or she was not notified
of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not
have . . . known that the discriminatory matter or
personnel action occurred, that despite due diligence he
or she was prevented by circumstances beyond his or her
control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the
agency or the Commission.
29 C.F.R. §1614.105. The agency here declined to extend the 45
days and dismissed her complaint. It specifically noted that Lewis
was under constructive notice of her rights because the regulations
were properly posted.
6
231, 232 (5th Cir. 1999). Equitable tolling or equitable estoppel
is appropriate “when a plaintiff’s unawareness of his ability to
bring a claim--either unawareness of the facts necessary to support
a discrimination change or unawareness of his legal rights–-is due
to the defendant’s misconduct.” Christopher v. Mobil Oil Corp.,
950 F.2d 1209, 1215 (5th Cir. 1992). The EEOC’s misleading the
plaintiff about his or her rights can also be the basis for
equitable tolling, although incomplete oral statements made by the
EEOC during a telephone call are not sufficient to merit tolling.
Conway, 955 F.2d at 362-63.
Lewis argues that the IG’s failure to inform her that she was
required to meet with an EEO Counselor was a misrepresentation on
which she relied. The IG, however, even according to Lewis’s
account, made no misrepresentation; Sergeant Little did not tell
Lewis that she did not need to file a complaint, nor did she give
Lewis incorrect information. Even viewing the facts in the light
most favorable to Lewis, Sergeant Little at most gave Lewis
incomplete information, which under the circumstances is no basis
for equitable tolling. Furthermore, Lewis was under constructive
notice of the deadlines in the EEO process because the names and
addresses of the EEO Counselors, as well as the 45 day time period,
were posted in the break room at the Dyess exchange in accordance
with 29 C.F.R. §1614.102(b)(4). In sum, these facts simply do not
support equitable tolling.
III
7
In conclusion, we hold that the district court properly
granted the defendant’s motion for summary judgment because Lewis
did not initiate contact with an EEO Counselor within the governing
time period and because she is not entitled to equitable tolling.
The judgment of the district court is therefore
A F F I R M E D.
8
