Theodoesha Rivers v. Timothy Geithner ( 2014 )


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  •      Case: 12-20817      Document: 00512474582         Page: 1    Date Filed: 12/17/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 12-20817                             FILED
    December 17, 2013
    Lyle W. Cayce
    THEODOESHA RIVERS,                                                             Clerk
    Plaintiff - Appellant
    v.
    TIMOTHY F. GEITHNER, Secretary, United States Department of the
    Treasury; INTERNAL REVENUE SERVICE,
    Defendants - Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:12-CV-1396
    Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Theodoesha Rivers was an employee at the Department of Treasury,
    Internal Revenue Service (IRS) until her resignation in lieu of termination on
    August 12, 2011. As a federal employee, Rivers was informed that if she
    suspected that her employer had taken any adverse employment action against
    her that was based in whole or in part on discrimination due to race, she must
    bring her complaint to the attention of an Equal Employment Opportunity
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 12-20817    Document: 00512474582     Page: 2   Date Filed: 12/17/2013
    No. 12-20817
    (EEO) counselor within forty-five (45) calendar days of the effective date of the
    adverse employment action. Rivers failed to contact an EEO Counselor within
    the prescribed time period. Nonetheless, Rivers filed suit against the IRS
    alleging that the IRS had unlawfully discriminated against her on the basis of
    her race. The district court dismissed Rivers’ suit for her failure to exhaust
    her administrative remedies. Because we find that Rivers has not shown that
    she is entitled to equitable tolling or estoppel of the limitations period for
    contacting an EEO Counselor, we AFFIRM the district court’s ruling.
    FACTS AND PROCEDURAL HISTORY
    Theodoesha Rivers was employed by the IRS from September 15, 2008
    to August 12, 2011.     Rivers alleges that in November 2009, one of her
    supervisors made racially discriminatory comments towards her.            Rivers
    reported her supervisor’s conduct to her Union Office, and after Rivers filed
    her complaint, she alleges that her supervisors retaliated against her by
    creating a hostile work environment. Sometime later, in the spring of 2010,
    the IRS began an investigation into Rivers’ use of the government credit card
    and her time reporting. Pursuant to the IRS’s investigation, Rivers received
    written notice from the IRS explaining that it was investigating her based on
    her misuse of the government credit card.          Rivers was also given an
    opportunity to respond to the investigation both orally and in writing, and
    Rivers chose to only give an oral reply. Rivers was also informed in writing
    that she had administrative remedies available to her, including filing a
    complaint with the Equal Employment Opportunity Commission (EEOC) if she
    felt that the employment actions taken against her were discriminatory in any
    way.   Rivers ultimately decided to resign in lieu of termination, and she
    submitted her resignation effective August 12, 2011.
    On October 13, 2011, Rivers obtained a copy of her investigative file
    pertaining to the credit card infractions. Upon reading the file, Rivers alleges
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    that she realized for the first time that her supervisors, whom she had
    previously reported for discriminatory conduct, had been involved in the
    investigation. It was only upon reading the investigative file, Rivers asserts,
    that she had a reasonable suspicion that her termination was based on
    discrimination and retaliation for her complaints.
    Rivers then contacted an EEO counselor with her complaint of racial
    discrimination on October 17, 2011, four days after she had received her
    investigative file but a total of sixty-six days after the date of her resignation
    in lieu of termination. On December 19, 2011, Rivers filed an administrative
    complaint alleging discrimination based on race, color, and retaliation for prior
    EEO activity. The Department of the Treasury investigated Rivers’ complaint
    and dismissed her complaint pursuant to 
    29 C.F.R. § 1614.107
    (a)(2) because
    she had failed to exhaust her administrative remedies by failing to contact an
    EEO Counselor within the 45 day time period required by the regulation.
    Rivers then filed suit against the IRS in the District Court for the
    Southern District of Texas, Houston Division, again alleging she was subject
    to discrimination on the basis of her race. The Government filed a motion to
    dismiss the case, claiming that Rivers’ failure to exhaust her administrative
    remedies prior to suit rendered the district court without subject matter
    jurisdiction.   In response, Rivers argued that the Government should be
    equitably estopped from asserting the limitations period as a defense to her
    claim because the IRS misled her about the reasons for her termination,
    causing her to forebear from contacting an EEO counselor in a timely fashion.
    In the alternative, Rivers argued that the 45 day time limit for contacting an
    EEO counselor began to run on the day she discovered that discriminatory
    intent motivated the adverse employment action against her, not the date that
    her termination actually occurred. The district court determined that Rivers
    had reason to know of any suspected discriminatory motive at the time of her
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    resignation and that Rivers had not exhausted her administrative remedies
    because she failed to contact an EEO counselor within the 45 day deadline.
    The district court declined to grant her any equitable remedies and dismissed
    Rivers’ suit.
    STANDARD OF REVIEW
    In Title VII cases “[w]e review de novo a district court’s determination of
    whether the exhaustion requirement is satisfied.” Pacheco v. Mineta, 
    448 F.3d 783
    , 788 (5th Cir. 2006). “Where further litigation of [a] claim will be time-
    barred,” however, this Court reviews a dismissal for abuse of discretion. Berry
    v. CIGNA/RSI-CIGNA, 
    975 F.2d 1188
    , 1191 (5th Cir. 1992) (internal citations
    omitted) (alteration in original). In reviewing a decision where “the district
    court declines to exercise its equitable powers, we review decisions on the
    pleadings only for abuse of discretion.” Teemac v. Henderson, 
    298 F.3d 452
    , 456
    (5th Cir. 2002). “As when deciding any other motion on the pleadings, we
    assume the pleaded facts as true, and we will remand if the plaintiff has
    pleaded facts that justify equitable tolling.” Id.; Phillips v. Leggett & Platt, Inc.,
    
    658 F.3d 452
    , 457 (5th Cir. 2011) (“Our review of a district court’s application
    of equitable tolling is for abuse of discretion.”). “A district court abuses its
    discretion when it bases its decision on an erroneous legal conclusion or on a
    clearly erroneous finding of fact.” James v. Cain, 
    56 F.3d 662
    , 665 (5th Cir.
    1995).
    DISCUSSION
    Title VII prohibits an employer from making an adverse employment
    decision that is motivated in part by discrimination on the basis of sex, race,
    color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.
    Monitronics Int’l, Inc., 
    434 F.3d 327
    , 333 (5th Cir. 2005). The exclusive remedy
    for claims of employment discrimination by federal employees under Title VII
    is provided in 42 U.S.C. § 2000e-16(a)-(e). Pacheco v. Rice, 
    966 F.2d 904
    , 905
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    (5th Cir. 1992) (citing Henderson v. United States Veterans Admin., 
    790 F.2d 436
    , 439 (5th Cir. 1986)). Federal employees must seek informal counseling
    with an EEO counselor before filing a complaint of discrimination with the
    EEOC. 
    29 C.F.R. § 1614.105
    (a). An aggrieved employee “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.” 
    Id.
     § (a)(1).
    If an aggrieved employee fails to seek informal counseling within the 45
    day time limit, her claim is time barred. Pacheco, 
    448 F.3d at
    791 n.11
    (“Generally, discrimination claims alleging conduct that occurred more than
    45 days before the initiation of administrative action (contacting an EEO
    counselor) are time barred in a subsequent action in federal court.” (citing 42
    U.S.C. § 2000e-16; 
    29 C.F.R. § 1614.105
    )); Teemac, 
    298 F.3d at 454
     (“Federal
    employees must seek informal counseling before they file an EEOC complaint
    . . . [i]f the employee fails to do so, his claim is barred.”); Rice, 
    966 F.2d at 905
    (“Failure to notify the EEO counselor in timely fashion may bar a claim, absent
    a defense of waiver, estoppel, or equitable tolling.” (citation omitted)).
    The district court granted the Government’s motion to dismiss Rivers’
    claim for lack of jurisdiction based on the fact that Rivers had failed to exhaust
    her administrative remedies since she had not contacted an EEO counselor
    within the 45 day time limit. 1 The parties dispute, however, when the 45 day
    period began to run. Rivers asserts that the limitations period should not have
    1  There is a dispute within this Circuit regarding whether exhaustion implicates this
    Court’s subject matter jurisdiction, or whether exhaustion is merely a statutory prerequisite to
    suit that is subject to equitable remedies such as tolling. See, e.g., Filer v. Donley, 
    690 F.3d 643
    ,
    647 (5th Cir. 2012) (stating that “in this court, there are two jurisdictional issues in this case . . .
    [t]he first is whether [employee] exhausted his administrative remedies under Title VII”). But
    see Phillips, 
    658 F.3d at 457
     (“The limitations period for filing a discrimination charge with the
    EEOC is not a jurisdictional prerequisite, and it may be tolled by equitable modification.”
    (citations omitted)). Since Rivers has not shown that she is entitled to equitable tolling or
    estoppel, we need not reach this jurisdictional dispute in this case.
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    begun the day of her resignation, but rather when she had a reasonable
    suspicion that her termination was based on discrimination. This Circuit’s
    precedent clearly establishes, however, that “in Title VII cases [] the
    limitations period starts running when the plaintiff knows of the
    discriminatory act, not when the plaintiff perceives a discriminatory motive
    behind the act.” Christopher v. Mobil Oil Corp., 
    950 F.2d 1209
    , 1217 n.2 (5th
    Cir. 1992) (citing Merrill v. Southern Methodist University, 
    806 F.2d 600
    , 605
    (5th Cir.1986) (emphasis original)); Chapman v. Homco, Inc., 
    886 F.2d 756
    , 758
    (5th Cir. 1989) (“[T]his Court [has] rejected the [] argument that the statute of
    limitation in a Title VII case should not begin to run until the date of discovery
    of the alleged discriminatory practices.”); see also Phillips, 
    658 F.3d at 455
    (“Generally, the limitations period begins on the date of the alleged unlawful
    employment action.”).
    In the instant case the 45 day time limit for contacting an EEO counselor
    began to run on August 12, 2011, the day that the IRS took adverse
    employment action against Rivers by informing her that she would be
    terminated, resulting in Rivers submitting her resignation.          Rivers first
    contacted an EEO counselor on October 17, 2011, a total of sixty-six days after
    the date of her resignation in lieu of termination. Therefore, Rivers did not
    contact an EEO counselor within the 45 day period provided in 
    29 C.F.R. § 1614.105
    (a)(1) and the district court properly found that Rivers’ complaint was
    time barred.
    In the alternative, Rivers asserts that she is entitled to equitable
    remedies that would allow her complaint to the EEO counselor to be considered
    timely.   Rivers argues that the IRS concealed relevant facts during its
    investigation and misled Rivers about the reasons for her termination,
    therefore, she contends that the IRS should be estopped from asserting the 45
    day limitations period as a defense to her claim.
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    An employer may be equitably estopped from asserting the limitations
    period as a defense when the employee’s failure to comply with an EEOC
    deadline was a result of the employer’s misconduct. Christopher, 
    950 F.2d at 1215
     (noting that estoppel is warranted when a “plaintiff’s unawareness of his
    ability to bring a claim -- either unawareness of the facts necessary to support
    a discrimination charge or unawareness of his legal rights -- is due to
    defendant’s misconduct”); Rhodes v. Guiberson Oil Tools, 
    927 F.2d 876
    , 879
    (5th Cir. 1991) (“If the defendant did conceal facts or misled the plaintiff and
    thereby caused the plaintiff not to assert his rights within the limitations
    period, the defendant is estopped from asserting the EEOC filing time as a
    defense.”). The employee “bears the burden of presenting facts which, if true,
    would require a court as a matter of law to estop the defendant from asserting
    the statute of limitations.” McGregor v. Louisiana State Univ. Bd. of
    Supervisors, 
    3 F.3d 850
    , 865 (5th Cir. 1993) (internal quotations and citations
    omitted). An employee may be entitled to equitable tolling of a filing deadline
    if “the [employee’s] lack of awareness of the facts supporting his claims [is]
    because of the defendant’s intentional concealment of them.” Manning v.
    Chevron Chem. Co., LLC, 
    332 F.3d 874
    , 880 (5th Cir. 2003).
    Rivers is not entitled to equitable tolling or estoppel because she has not
    shown that the IRS concealed facts from her or affirmatively misled her about
    the reasons underlying her termination. See 
    id.
     (holding that “[w]e equitably
    toll a limitations period only when the employer’s affirmative acts mislead the
    employee and induce him not to act within the limitations period” (citation
    omitted) (emphasis original)); Ramirez v. City of San Antonio, 
    312 F.3d 178
    ,
    184 (5th Cir. 2002) (“A court will equitably toll a limitations period only when
    the employer’s affirmative acts mislead the employee.”).
    Rivers alleges that she did not know that her supervisors, whom she had
    previously reported for discrimination, had been involved in the investigation
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    of her credit card use until she read her investigative file, which to River’s
    surprise included portions of private conversations between Rivers and her
    supervisors. Rivers contends that because the IRS concealed the fact that her
    supervisors were heavily involved in the investigation she had no way of
    knowing that her termination for her credit card misuse had a discriminatory
    motive. As the district court found, Rivers had admittedly been a part of the
    conversations with her supervisors, therefore, she cannot now claim that she
    was wholly unaware of the existence of these conversations. Her allegation
    that she was surprised to see that the conversations had been made part of her
    investigative file is not enough to warrant estoppel. This Court has found that
    an aggrieved employee is not entitled to equitable estoppel when she is aware
    of the facts surrounding any discriminatory treatment, but claims
    unawareness of the employer’s discriminatory purpose. See Christopher, 
    950 F.2d at 1216
     (“[E]quitable estoppel is not warranted where an employee is
    aware of all of the facts constituting discriminatory treatment but lacks direct
    knowledge of the employer’s subjective discriminatory purpose.”).
    Rivers also avers that the IRS concealed facts and misled her because it
    did not allow her a chance to defend herself against the charges in its
    investigation, and that had she been provided with all of the information
    regarding the investigation, she “would have been able to correct any perceived
    deficiencies and maintain her employment.”           However, Rivers herself
    submitted a letter she received from the IRS to the district court as an exhibit
    attached to her motion opposing the dismissal of her case. (R. 69). This letter
    explained that Rivers was given written notice of the charges against her on
    January 26, 2011, that she gave an oral reply to the charges on March 23, 2011,
    and that she declined to submit a written reply. Accordingly, Rivers was given
    notice and an opportunity to respond, therefore, her argument that the IRS
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    deliberately concealed the nature and facts of its investigation from her is
    without merit.
    As such, Rivers has not shown that the IRS affirmatively or actively
    sought to mislead her, which is a requirement for the application of equitable
    estoppel or tolling. See e.g., Tucker v. United Parcel Service, 
    657 F.2d 724
    , 725–
    26 (5th Cir. Unit B Sept. 1981) (applying equitable tolling when the employer
    informed seasonal employees they would not be recalled to work after the
    holidays, and then recalled almost exclusively white and not black seasonal
    workers after the EEOC filing deadline had passed); Coke v. General
    Adjustment Bureau, Inc., 
    640 F.2d 584
    , 595 (5th Cir. Mar. 1981) (reversing
    summary judgment for the employer and finding a genuine issue of material
    fact existed in regards to equitable tolling when an employee who was demoted
    and replaced by a younger man reasonably relied on the employer’s
    misrepresentations that he would be reinstated when forbearing to file his age
    discrimination claim); Reeb v. Economic Opportunity Atlanta, Inc., 
    516 F.2d 924
    , 930 (5th Cir. 1975) (holding that equitable modification of the limitations
    period was warranted when the defendant actively sought to mislead the
    employee by informing her that her position was being terminated due to a
    lack of funding, then hiring a less qualified male employee to replace her).
    The IRS did not actively mislead Rivers to prevent her from filing a
    discrimination claim by proffering misleading reasons for her termination.
    Rather, the IRS conducted a year-long investigation into her credit card use in
    which it gave her written notice of the charges against her and an opportunity
    to respond. Furthermore, Rivers has not once asserted during the pendency of
    this litigation that the allegations of her credit card misuse were untruthful in
    any way.    Accordingly, Rivers has not shown that she is entitled to the
    equitable remedies of tolling or estoppel.
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    CONCLUSION
    Rivers failed to exhaust her administrative remedies when she did not
    contact an EEO counselor within 45 days of her resignation in lieu of
    termination. Rivers also has not shown that she is entitled to equitable tolling
    or estoppel of the limitations period. For these reasons, we AFFIRM the
    district court’s dismissal of Rivers’ suit.
    10