Tommy E. Robinson v. Mike Jojanns , 147 F. App'x 922 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 9, 2005
No. 05-10947
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00702-CV-JMF-1
TOMMY E. ROBINSON,
CSI Inspector, USDA FSIS,
Plaintiff-Appellant,
versus
MIKE JOJANNS,
Secretary of Agriculture,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 9, 2005)
Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
In his complaint in this case, Tommy Robinson, a 60-year-old black male
employee of the Food Safety and Inspection Service (“FSIS”), a division of the
United States Department of Agriculture (“Department”), alleged that the
Department discriminated against him on account of his age, sex, and race, in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e-2(a)(1), when if refused to promote him to the position of Customer Safety
Office.1 On the Department’s Fed. R. Civ. P. 12(b)(6) motion to dismiss, the
district court concluded that the complaint failed to state a claim for relief and
dismissed it. The court did so on the ground, among others, that Robinson failed to
contact an EEO counselor (and complain about the alleged discrimination) within
the time limit prescribed by law. Robinson now appeals. We affirm.
Federal sector employees, such as Robinson, who believe that they have
been subject to discrimination, must initiate contact with an EEO counselor within
45 days of the effective date of the personnel action. See 29 C.F.R. §
1614.105(a)(1).2 An employee who fails to do so suffers the dismissal of his
1
Although Robinson’s complaint alleges age discrimination in violation of Title VII,
discrimination on the basis of age is prohibited under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 623(a)(1), not Title VII. We therefore treat the age claim as having
been brought under the ADEA.
2
An agency, however, “shall extend the 45-day time limit in paragraph (a)(1) of this
section when the individual shows that . . . he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred.” Id. § 1614.105(a)(2).
This provision provides Robinson no relief in this case; that is, nothing in the complaint
suggests, much less alleges, that the Department should be held to have extended the 45-day
limit.
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complaint. Id. § 1614.107(a)(2); cf. Manning v. Carlin, 786 F.2d 1108, 1109 (11th
Cir. 1986).
The record indicates that, on September 17, 2001, the Department informed
Robinson that someone else had been chosen for the Customer Safety Office
position he was seeking. He contacted the EEO counselor on December 13, 2001,
42 days after the 45-day period for contacting a counselor had expired. Even if we
were to assume that the 45-day period did not begin to run until October 16, 2001,
when Robinson filed a grievance with his union complaining of sex and age
discrimination, the contact was still untimely—13 days late.
In an attempt to get around the limitations bar, Robinson makes two
arguments. First, he says that he did not learn of the unlawful discrimination until
November 15, 2001. We reject this argument because he did not present it to the
district court. Second, he says that he did not learn that the person who obtained
the position, Debra Davis, is white until sometime after he filed his grievance with
the union on October 16, 2001. Thus, the 45-day period did not begin to run on
that date. We reject this argument for the same reason we reject the first one;
Robinson failed to present it to the district court.
The prerequisite of timely contact with an EEO counselor is not
jurisdictional, and is subject to waiver, estoppel and equitable tolling. See 29
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C.F.R. § 1614.604(c); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982). Equitable tolling applies
“when the defendant misleads [plaintiff] into allowing the statutory period to lapse,
when [plaintiff] has no reasonable way of discovering the wrong perpetrated
against [him], or when [plaintiff] files a technically defective pleading and in all
other respects acts with the proper diligence which statutes of limitations were
intended to insure.” Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993)
(citations omitted).
We have considered, and reject, the notion that Robinson’s filing of the
grievance with the union tolled the 45-day period. He suggests that the
Department’s request for an extension of time to respond to his grievance operated
to toll the limitations period. Such request, however, did not meet the equitable
tolling test set out above. Moreover, Robinson fails to state how this request
prevented him from contacting an EEO counselor.
We find no basis for disturbing the district court’s decision.
AFFIRMED.
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