Lisa Renshaw Nygren v. John Ashcroft , 109 F. App'x 816 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3041
___________
Lisa A. Renshaw Nygren, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
John Ashcroft, United States * [UNPUBLISHED]
Attorney General, *
*
Appellee. *
___________
Submitted: May 14, 2004
Filed: August 24, 2004
___________
Before WOLLMAN, HAMILTON,1 and BYE, Circuit Judges.
___________
PER CURIAM.
Correctional officer Lisa Renshaw Nygren (Nygren) brought suit against her
employer, the Federal Correctional Institute at Sandstone, Minnesota (FCI-
Sandstone), alleging that she had been sexually harassed by a co-worker. The district
court2 granted summary judgment for FCI-Sandstone, concluding (1) that Nygren
1
The Honorable Clyde H. Hamilton, United States Circuit Judge for the Fourth
Circuit, sitting by designation.
2
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
failed to comply with an Equal Employment Opportunity Commission (EEOC)
regulation mandating that federal employees initiate contact with an EEO counselor
within 45 days of alleged discrimination, and (2) that Nygren was not entitled to
equitable tolling of the limitation. We affirm.
I.
We recite the facts in the light most favorable to Nygren, who commenced a
twelve-month probationary period of employment with FCI-Sandstone in June 1999.
As part of her training, Nygren selected William Gaede as her employee mentor.
Gaede was initially helpful, but began making sexually offensive comments and
gestures to Nygren.3 This conduct continued through early 2000 and culminated on
June 26, 2000, when Gaede approached Nygren from behind and ran his finger
between her legs.
Nygren initially reported Gaede’s behavior to Lieutenant Polly King on July
8, 2000. King furnished Nygren with a copy of FCI-Sandstone’s written policy on
sexual harassment,4 a copy of which Nygren had received upon her arrival at FCI-
Sandstone and during annual training on workplace discrimination. King also
3
Among other things, Gaede inquired about Nygren’s sex life and would
mention that he had an erection. Eventually, he began moving from behind his desk
with an erection visible beneath his pants and would point to and make comments
about it.
4
The policy tells the reader that “the employee may seek relief by either
notifying the contact person for the Sexual Harassment Prevention Plan, pursuing the
EEO Complaint process, or using the Negotiated Grievance process . . . or the Agency
Grievance Procedure.” Program Statement 3717.17. It further states that
“[e]mployees should be informed that if they choose to use the EEO Complaint
process, they must do so within 45 days of the action(s) of which they are
complaining.” Id. (emphasis in original).
-2-
reported Nygren’s complaints to higher management, an event that ultimately
triggered a disciplinary investigation by the Bureau of Prisons’ Office of Internal
Affairs (OIA).
On July 13, 2000, Nygren met with EEO counselor Thomas Gafkjen. She did
not complete a written request for counseling during the meeting, but informed
Gafkjen that if the “internal investigation did not resolve the issue, [she] would be
interested in pursuing an EEO complaint.” Although it is Gafkjen’s practice to inform
employees that they must meet with him again within 30 days to pursue EEO
remedies, he did not provide Nygren with written information during the meeting or
inform her of any deadline for filing an EEO complaint.
Nygren met with several FCI-Sandstone officials during August. She prepared
a memorandum on August 10, 2000, for the Special Investigative Supervisor which
states: “I have an understanding with Mr. Gaede that his inappropriate behavior will
not be tolerated any further. He understands this and I have not had any more
problems at this time. There is also an understanding that if this becomes a problem
again, I will take further action.” This same sentiment is reflected in the Associate
Warden’s notes of her meeting with Nygren on August 23, 2000: “I then asked
Ms.[Nygren] three separate times if she felt that I needed to take further action and
she stated that she did not.”
On August 24, 2000, Nygren met with Warden T. C. Peterson, who Nygren
contends questioned her about having a sexual relationship with Gaede, told her that
she was “flirtatious,” and insinuated that she had somehow invited Gaede’s
misbehavior. Warden Peterson nevertheless involved the OIA, and on September 26,
2000, Nygren submitted an affidavit for the investigation, which stated in part that
“Gaede has not engaged in any unprofessional or inappropriate behavior in my
presence following the incident in his office when he placed a finger between my
-3-
legs.” The affidavit also detailed Nygren’s conversation with Warden Peterson and
her belief that Peterson’s statements were inappropriate.
The investigation concluded on October 23, 2000, with a finding that there was
“insufficient corroborating evidence” that Gaede had engaged in unprofessional
conduct. Nygren did not learn of this outcome until December 10, 2000. She
subsequently informed both King and the Federal Women’s Program Manager, Debra
Helmbrecht, that she wished to file an EEO complaint. Helmbrecht told Nygren that
she was an EEO Counselor, and several weeks later, on February 12, 2001, helped
Nygren complete a written request for EEO counseling. Nygren later discovered that
Helmbrecht was not an EEO counselor, so she returned to see Gafkjen on March 6,
2001, to file an EEO complaint.
II.
“Summary judgment is appropriate if there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law.” Angelo Iafrate Const.,
LLC v. Potashnick Const., Inc., 370 F.3d 715, 719 (8th Cir. 2004). We consider the
decision to grant summary judgment de novo, applying the same standard as the
district court. Id.Federal employees who wish to sue the United States for employment
discrimination must exhaust available administrative remedies. See Bailey v. United
States Postal Serv., 208 F.3d 652, 654 (8th Cir. 2000). Among them is an EEOC
regulation mandating that the aggrieved employee “initiate contact with a [EEO]
Counselor” within 45 days of the alleged discrimination in order to attempt an
informal resolution. 29 C.F.R. § 1614.105(a)(1). The regulation does not define
“initiate contact,” see Bailey, 208 F.3d at 654 n.2, but the EEOC has issued a number
of decisions that interpret “initiate contact” to require that the employee “contact an
agency official logically connected to the EEO process and exhibit an intent to begin
-4-
the EEO process.” Allen v. Runyon, Doc. No. 5950933, 1996 WL 391224 at *3
(EEOC July 9, 1996); Pauling v. Secretary of the Dep’t of Interior, 960 F. Supp. 793,
803 (S.D.N.Y. 1997) (collecting decisions). We defer to this interpretation, which
neither party challenges. See Auer v. Robbins, 519 U.S. 452, 461 (1997) (agency
interpretation of its own regulation is controlling unless “plainly erroneous or
inconsistent with the regulation.”).
Although Nygren contacted someone logically connected with the EEO
process5 within 45 days of the June 26, 2000, assault, she did not exhibit an intent to
begin the EEO process. She did not complete a written request for counseling during
her initial meeting with Gafkjen or otherwise seek to file a complaint, see Bailey, 208
F.3d at 654, and her statements to Gafkjen and other FCI-Sandstone officials indicate
that she was not interested in pursuing the matter unless Gaede’s conduct resumed.
Nygren nevertheless argues that her claim is timely in light of the Supreme
Court’s decision in Nat’l RR Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Morgan held that a Title VII hostile work environment claim is timely when “an act
contributing to the claim occurs within the filing period” id. at 117, a rule that we
have applied to EEOC regulatory time limits. See Jensen v. Henderson, 315 F.3d
854, 856 (8th Cir. 2002). Nygren suggests that events subsequent to the June 26
assault – including Warden Peterson’s comments on August 24, 2000, and what she
characterizes as the inadequate response to her complaints – form part of a single,
actionable hostile environment that existed within 45 days of her later attempts to
initiate EEO proceedings. We disagree. Nygren’s September 26, 2000, memo
confirms that Gaede’s misbehavior had ceased, which was precisely the relief
requested by Nygren. We therefore conclude that by waiting until March of 2001 to
5
Nygren contacted Gafkjen, an EEO counselor, but the contact person can
include a supervisor. See Buckli v. Caldera, Doc. No. 5970223, 1998 WL 1944318at *2 (EEOC Oct. 8, 1998).
-5-
file a complaint, she failed to initiate contact with an EEO counselor within 45 days
of the allegedly discriminatory conduct.
Nygren’s final contention is that the 45-day limitation should not apply under
the doctrines of equitable tolling and equitable estoppel.6 Equitable tolling is
appropriate in cases of excusable ignorance, where “‘the plaintiff, despite all due
diligence, is unable to obtain vital information bearing on the existence of [her]
claim.’” Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1328 (8th Cir. 1999)
(quoting Chakonas v. City of Chicago, 42 F.3d 1132, 1135-37 (7th Cir. 1994)). The
failure to file must be truly beyond the employee’s control. The employee who fails
to timely file despite general knowledge of her right to avoid workplace
discrimination and a suspicion that this right has been violated is not entitled to
tolling. See Briley v. Carlin, 172 F.3d 567, 570 (8th Cir. 1999) (citation omitted);
Dring, 58 F.3d at 1329 (identifying test as “‘whether a reasonable person in the
plaintiff’s situation would have been aware that he had been fired in possible
violation of [discrimination laws].’” (citation omitted)). Similarly, equitable estoppel
operates to prevent employees from being “lulled or tricked into letting the EEOC
filing deadline pass . . . .” Dring, 58 F.3d at 1329. The doctrine applies if “the
employee’s failure to file in timely fashion is the consequence of either a deliberate
design by the employer or of actions that the employer should unmistakably have
understood would cause the employee to delay filing his charge.” Id. (citations and
internal quotation marks omitted). We conclude that neither doctrine applies here.
Based on her conduct and statements, Nygren knew that she had a right to be
free from workplace discrimination and was sufficiently aware of that right to contact
an EEO counselor and prison management about the matter. She obviously knew
6
The EEOC may extend the filing deadline if the employee shows that “she was
not notified of the time limits and was not otherwise aware of them . . . .” 29 C.F.R.
§ 1614.105(a)(2).
-6-
whom to contact, and her statements to Gafkjen clearly show that she also knew of
her right to file an EEO complaint. Furthermore, she had at least constructive
knowledge of EEO deadlines through the written policy she received both from
Lieutenant King and in annual discrimination training. The policy plainly specifies
that the EEO process is distinct from other remedies, including FCI-Sandstone’s
internal investigatory procedures, and makes abundantly clear (through textual
emphasis) that employees who wish to pursue an EEO complaint have 45 days in
which to do so. This policy was made known to staff by classroom training on
employment discrimination (which Nygren attended) and posters identifying EEO
counselors and the steps of the EEO process. Finally, there is no evidence that
Gafkjen and various FCI-Sandstone officials, by deliberate design or affirmative
conduct, did anything that they should have understood would cause Nygren to delay
pursuit of her administrative remedies.
The judgment is affirmed.
______________________________
-7-