Smith, Kathy J. v. Potter, John E. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3531
KATHY J. SMITH,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General
of the United States,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 02 C 864—Sarah Evans Barker, Judge.
____________
ARGUED SEPTEMBER 12, 2005—DECIDED MAY 2, 2006
____________
Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
COFFEY, Circuit Judge. On November 27, 1998, Kathy
Smith was removed from her position as a mail clerk for the
United States Postal Service (“USPS” or “Postal Service”)
due to “unacceptable misconduct”. Shortly thereafter, Smith
filed a grievance with her union, the American Postal
Workers Union (“APWU”), claiming that the decision to
dismiss her was based on the color of her skin rather than
the quality of her work. After a number of adverse decisions
and related appeals, Smith and the APWU submitted their
dispute to arbitration, which was concluded in favor of the
USPS. Not satisfied with this, Smith filed a complaint with
the USPS Office of Equal Employment Opportunity (“EEO”)
2 No. 04-3531
on June 11, 2001, which was denied as untimely. While her
appeal of the EEO decision was pending with the Equal
Employment Opportunity Commission (“EEOC”),1 Smith
filed a complaint in the United States District Court for the
Southern District of Indiana under Title VII of the Civil
Rights Act of 1964, alleging that her termination from the
USPS was a result of sex and/or race discrimination. See 42
U.S.C. §§ 2000e et seq. In response the USPS filed a motion
to dismiss, which the district court converted into a motion
for summary judgment and granted, holding that Smith had
failed to exhaust her administrative remedies. We affirm.
I. BACKGROUND
At approximately 5:40 on the evening of October 4, 1998,
two postal workers witnessed a co-worker, Kathy Smith,
“throwing large chunks of concrete at the windshield of a
1997 Ford Expedition” parked in the employee parking lot
of the Indianapolis Post Office. The attack on the vehicle
continued until the two onlookers shouted at Smith,
imploring her to stop. At that point, Smith “jumped in her
car” and sped away. Smith, a mail clerk at the Indianapolis
1
The Postal Service, like every other federal agency, is charged
with the initial disposition of discrimination complaints lodged
against the agency by its employees. See 39 C.F.R. § 255.6; 29
C.F.R. §§ 1614.101 et seq. The agency offices created pursuant to
this requirement are known as “agency EEO office[s].” See, e.g.,
Heckman v. Potter, EEOC Request No. 01A52701, *2 (Feb. 24,
2006). Once an agency has dismissed or otherwise disposed of
a complaint, federal employees have the right to appeal that
decision to the EEOC, see 29 C.F.R. §§ 1614.403 et seq., or file a
complaint in federal court, see 29 C.F.R. § 1614.407. That being
the case, references in this opinion to the EEO refer to the initial
agency determination, while references to the EEOC concern the
appeal process and eventual determination, see infra pp. 6-7.
No. 04-3531 3
Post Office (“post office”) and twelve-year veteran of the
Postal Service, was on-duty at the time of the incident.
The target of Smith’s ire was later identified as a motor
vehicle belonging to Karen Hill, Smith’s supervisor at the
post office. According to Smith, the attack on Hill’s motor
vehicle was precipitated by a series of confrontations (some
violent) between the two women in the preceding months.2
Specifically, Smith told her superiors at the Postal Service
that less than two weeks earlier, on September 24, 1998,
Hill had suffered a dislocated shoulder during a physical
altercation between the two women at a work-related
birthday celebration. In addition, Smith alleged that Hill
had vandalized her automobile two months earlier and that
Hill had been placing harassing “hang-up” telephone calls
to her sister. As further proffered justification for
her actions, Smith also admitted that she had been suffer-
ing from an “alcohol problem,” and even stated that she had
been drinking at work on October 4th.
Immediately following the October 4, 1998 attack on Hill’s
car, Smith was suspended pending a Postal Service investi-
gation into the incident. Approximately three weeks later,
on October 22, 1998, the Postal Service sent Smith a letter
informing her that she had been terminated from her
employment, effective November 27, 1998. In support of its
decision, the Postal Service cited Smith’s breach of two
sections of the employee code of conduct3 and two recent
2
The record reflects that the Hill and Smith shared a common
love interest—a fellow postal worker—which served as an impetus
of the conflict.
3
The two sections cited are §§ 651.53 and 666.2 and are entitled
“Unacceptable Conduct” and “Behavior and Personal Habits.”
4 No. 04-3531
incidents of absenteeism.4 The letter also informed Smith
that, as a APWU member, she had the right to file a
grievance challenging her termination in accordance with
the collective bargaining agreement that was in effect at the
time.
Prior to even the prospective date of her termination,
Smith filed a union grievance—called a “Step 1” griev-
ance—attributing her unacceptable conduct on October 4th
to her alcoholism. The union summarily rejected this
explanation, upholding her dismissal and finding that
management had “just cause” to take disciplinary action.
Smith timely appealed, filing what is known as a “Step 2”
grievance, and the union once again ruled against her. On
appeal, not only did the union once again find that there
was “just cause for the disciplinary action”; they also
concluded that Smith’s removal would “promote the effi-
ciency of the Postal Service and enable the agency to
provide a safe work place.” After a final unsuccessful
appeal—referred to as “Step 3” in the grievance pro-
cess—Smith pursued her contractual right to have an
arbitrator decide whether or not she had been discharged
for just cause. The arbitrator affirmed the union’s previous
decisions in an award dated June 6, 2001, concluding that
just cause existed to terminate Smith, primarily due to the
fact that “[t]he risk of a similar violent outburst [would be]
too great” and Smith’s “vandalism jeopardized the safety of
the workplace and impacted Management’s ability to
provide a secure work environment.”
Smith responded to the adverse arbitration decision with
the filing of a formal complaint5 with the USPS’s EEO office
4
The letter stated that on February 27, 1997 and August 11,
1997, Smith was issued written warnings for “unauthorized
absence from work” and “failure to maintain a regular work
schedule.”
5
The record reflects that Smith had previously filed an informal
(continued...)
No. 04-3531 5
(“EEO”). In her complaint, Smith alleged that her termina-
tion was not only unwarranted but was also discriminatory
in nature. The EEO complaint alleged that Smith had been
discriminated against on the basis of her race when she, a
white female, was fired for vandalizing Hill’s vehicle while
Hill, a black female, had not been disciplined for: (a)
vandalizing her (Smith’s) vehicle on July 7, 1998; (b)
placing harassing phone calls to Smith’s family; and (c)
assaulting Smith and dislocating her shoulder on Septem-
ber 24, 1998.6 See supra p. 3.
On August 23, 2001, the USPS EEO office issued a “Final
Agency Decision” dismissing Smith’s complaint for failure
to comply with the Agency’s 45-day time limit for lodging a
discrimination complaint. See 29 C.F.R. § 1614.105(a)(1). In
support of its decision, the EEO cited the fact that Smith
was “or should have been aware of the time limit for
5
(...continued)
complaint with the USPS’s EEO office on February 3, 1999. In the
complaint, Smith presented a “mixed” claim of race and sex
discrimination. She specifically alleged that Hill, a black female,
had not been disciplined when she vandalized Smith’s car in July
of 1998 or when she allegedly attacked Hill and dislocated her
shoulder in September of 1998, see supra p. 3, whereas she
(Smith), a white female had been dismissed for essentially the
same behavior. In addition, Smith alleged that unlike three other
male co-workers, she was dismissed for having a problem with
alcohol. In accordance with USPS guidelines for resolving an
informal discrimination complaint, Smith thereafter agreed to
take part in a dispute resolution procedure. However, two hours
into mediation, Smith decided to withdraw claiming that she
found the process “very frustrating and emotional.” Smith’s
complaint was voluntarily dismissed as a result of her withdrawal
from the mediation.
6
Smith claimed that all of these incidents happened while Hill
was “on the clock” or supposed to be performing official USPS
duties.
6 No. 04-3531
contacting an EEO Counselor, as posters, including the 45-
day time limit were clearly on display at the post office
where [she] had worked.” Citing Reeb v. Economic Opportu-
nity of Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975), the
EEO pointed out that “the 45-day limitation period begins
to run when a person with reasonably prudent regard for
his/her rights knew or should have known that s(he) was
being discriminated against,” and Smith had not filed a
complaint with the EEO until well after the 45-day regula-
tory time limit had expired.7
Undeterred, Smith filed a timely administrative appeal of
the EEO determination with the EEOC on September 13,
2001. On appeal, Smith claimed for the first time that in
October of 1998, she telephoned the USPS’s EEO office and
was informed by an EEO counselor8 that she was required
to conclude the union grievance process she had initiated
before pursuing any action for discrimination or harass-
ment through the EEO. In the alternative, Smith also
argued that although her dismissal from employment was
effective as of November 27, 1998, she was not actually
removed from the USPS payroll until June 8, 2001—after
the union grievance process was concluded.9 Accordingly,
7
As noted above, documented contact with the EEO was not
initiated by Smith until February 3, 1999, which was 68 days
after Smith’s effective removal date and well beyond the 45-day
time limit of 29 C.F.R. § 1614.105(a)(1). See supra p. 5 n.5.
8
Smith was unable to recall the name or exact date that she
allegedly called the EEO office nor, could she remember the name
of the person she talked with. In an affidavit, dated June 14, 2003,
Smith states that she telephoned the EEO office “shortly after
[she] was suspended” and spoke to “[a] female, whose name [she
did] not know.”
9
Article 16.5 of the collective bargaining agreement between the
USPS and the APWU provides that when an employee initiates
(continued...)
No. 04-3531 7
Smith’s position was that she had complied with the 45-day
time limit of 29 C.F.R. § 1614.105(a)(1) when she filed a
complaint with the EEO within four days of the final
disposition of the grievance process (on June 11, 2001), and
that, due to the fact that she was misled by the USPS’s
EEO office, the Postal Service should be estopped from
arguing otherwise.
While her EEOC appeal was pending, however, Smith
short-circuited the administrative process by filing this
action in the United States District Court for the Southern
District of Indiana on June 3, 2002, claiming that she had
been discriminated against by the USPS on the basis of her
race, in violation of 42 U.S.C. § 2000e. Pursuant to 29
C.F.R. § 1614.409, once Smith filed her complaint in federal
court the EEOC, by operation of law, lost any authority to
proceed with her appeal. See § 1614.409 (stating that:
“Filing a civil action under § 1614.408 or § 1614.409 shall
terminate Commission processing of the appeal”). Indeed,
beginning on June 3, 2002, the EEOC lacked authority over
Smith’s appeal and was barred from deciding or otherwise
adjudicating the appeal. See, e.g., Harris v. Dep’t. of Veter-
ans Affairs, EEOC Appeal No. 01A51717 (2005); Olson v.
Dep’t. of Treasury, EEOC Appeal No. 01983200 (2001).
Nonetheless, the EEOC, in an unusual and unexplained
breach of regulations, proceeded with the appeal and issued
an opinion on September 12, 2002, reversing its earlier
9
(...continued)
the grievance procedure the “employee shall remain on the job or
on the clock (in pay status)” until the final “disposition of the
grievance, either by settlement or an arbitrator’s final and binding
decision.” Thus, although Smith was officially terminated from
her employment by the USPS effective November 27, 1998, by
operation of the collective bargaining agreement, she remained in
“pay status” until the grievance process was concluded in June of
2001.
8 No. 04-3531
determination and concluding that Smith’s original EEO
complaint was, in fact, timely under 29 C.F.R.
§ 1614.105(a)(1).10 This prompted Smith to file a motion to
withdraw her federal action, which the district court
summarily denied.
The defendant filed a motion to dismiss, or in the alterna-
tive, motion for summary judgment for the first time on
September 16, 2002, arguing that Smith had failed to
exhaust her administrative remedies.11 That motion was
denied without prejudice while the district court ascer-
tained whether any parallel administrative proceedings
were erroneously taking place. In addition, the court issued
a stay of the proceedings.12 Once the district court was
satisfied that all agency proceedings had been terminated
in accordance with 29 C.F.R. § 1614.409, the court lifted the
stay and the defendants renewed their motion to dismiss, or
in the alternative, moved for summary judgment.
On August 27, 2004, the district court granted the defen-
dant’s renewed motion and treated it as a motion for
summary judgment.13 The court ultimately concluded that
10
The EEO appellate decision states: “[T]he record reflects that
complainant’s last day in pay status was in November 1998;
however, the PS Form 50 also indicates that complainant’s
effective removal date was June 8, 2001. Given this difference,
and considering that complainant’s initial EEO Counselor contact
occurred only several days after the effective removal date
identified on the PS Form 50, the Commission determines that
[Smith’s] EEO Counselor contact was timely.”
11
The motion was entitled “Defendant’s Motion to Dismiss, or in
the alternative, Motion for Summary Judgment.”
12
This action by the district court was spurred by the surprise
EEOC decision of September 12, 2002.
13
Citing the fact that the parties had submitted various “materi-
als outside the pleadings, e.g., sworn declarations from witnesses
(continued...)
No. 04-3531 9
Smith had failed to exhaust her administrative remedies by
failing to contact an EEO counselor within 45 days of the
effective date of her dismissal (November 27, 1998) as
required by 29 C.F.R. § 1614.105. In so deciding, the court
also: (a) rejected Smith’s argument that the Postal Service
should have been equitably estopped from asserting Smith’s
breach of the limitations period based on the misleading
telephone conversation that she allegedly had with an EEO
counselor in October of 1998, see supra p. 6; and (b) refused
to consider the conclusion of her union grievance procedure
(the June 6, 2001 arbitration decision) as the “effective
date” of personnel action under § 1614.105.
II. ISSUES
On appeal, Smith argues that the district court errone-
ously granted summary judgment to the Postal Service on
the grounds that she failed to exhaust her administrative
remedies. In particular, Smith challenges the district
judge’s conclusion that she failed to timely contact an EEO
counselor and that equitable estoppel should not apply with
regards to her alleged misleading conversation with an
EEO representative in October of 1998. Smith also claims
that the district court should have deferred to the Septem-
ber 12, 2002, decision of the EEOC holding that her coun-
selor contact was timely pursuant to § 1614.105.
13
(...continued)
other than the parties, EEOC letters, grievance forms from the
plaintiff ’s union, etc.” the district court properly converted the
defendant’s motion into a motion for summary judgment. Smith
v. Potter, 2004 WL 1936292 at *9, No. IP 02-0864-C-B/S (S.D. Ind.
Aug. 27, 2004); Fed. R. Civ. P. 12(b); McCoy v. Gilbert, 270 F.3d
503, 508 (7th Cir. 2001).
10 No. 04-3531
III. ANALYSIS
We review the district court’s grant of summary
judgment14 in favor of the Postal Service de novo. See Evans
v. City of Chicago, 434 F.3d 916, 924 (7th Cir. 2006). In
determining whether summary judgment is proper at this
stage of the proceedings, we view the record in the light
most favorable to the non-moving party, here Smith. See
Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir.
2005). Summary judgment is only appropriate where “the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits . . . show
that there is no genuine issue as to any material fact and
14
Initially, we should note that we agree with the district court’s
treatment of the defendant’s motion to dismiss as a motion for
summary judgment in this case. As noted above, 29 C.F.R.
§ 1614.105(a)(1) requires that employees alleging that they are
the victims of discriminatory conduct initiate an EEO complaint
“within 45 days of the date of the matter alleged to be discrimina-
tory or, in the case of personnel action, within 45 days of the
effective date of the action.” § 1614.105(a)(1). This court has made
clear on a number of occasions that such a deadline “is construed
as a statute of limitations and not as a jurisdictional prerequisite.”
Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995); accord
Rennie v. Garrett, 896 F.2d 1057, 1062-63 (7th Cir. 1990); see also
Irwin v. Veterans Administration, 498 U.S. 89, 96 (1990). Accord-
ingly, § 1614.105(a)(1) merely acts as a condition precedent to the
bringing of a suit in federal court and allows the party resisting
a motion to dismiss to introduce evidence sufficient to establish
the equitable doctrines of waiver, estoppel and/or tolling. See
Rennie, 896 F.2d at 1062; Bohac v. West, 85 F.3d 306, 312 (7th Cir.
1996); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). Thus,
unlike a motion to dismiss involving a question of subject matter
jurisdiction, a motion to dismiss concerning § 1614.105(a)(1), by
operation of law, is converted to a motion for summary judgment
when the parties provide additional documentation evincing their
entitlement to equitable relief, as was the case here. See Fed. R.
Civ. P. 12(b); Bohac, 85 F.3d at 311-12.
No. 04-3531 11
that the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). An issue of fact is “material” if it is
outcome determinative. Patel v. Allstate Ins. Co., 105 F.3d
365, 370 (7th Cir. 1997). However, “bare allegations not
supported by specific facts are not sufficient in opposing a
motion for summary judgment.” Hottenroth v. Village of
Slinger, 388 F.3d 1015, 1027 (7th Cir. 2004) (quoting
Hildebrandt v. Ill. Dep’t. of Natural Res., 347 F.3d 1014,
1036 (7th Cir. 2003)); accord Schroeder v. Lufthansa
German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
A. Timely Contact with an EEO Counselor
On appeal, Smith initially asserts that the district court
erred in determining that her contact with an EEO coun-
selor was not timely within the meaning of 29 C.F.R.
§ 1614.105(a)(1). Specifically, Smith argues that she
satisfied the 45-day limitations period of § 1614.105(a)(1)
when she telephoned the EEO in October of 1998. We
disagree.
As stated above, 29 C.F.R. § 1614.105 sets forth that
federal employees “who believe they have been discrimi-
nated against on the basis of race, color, religion, sex,
national origin, age or handicap 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.”15
Failure to do so equates to the violation of a statute of
limitations and, notwithstanding extenuating circum-
stances, would bar a federal employee from pursuing any
15
The purpose of this section is to allow the government and the
employee involved an opportunity to “informally resolve the
matter,” before formal action is taken, either through the EEOC
or in the courts. See § 1614.105(a).
12 No. 04-3531
action against the government for violation of Title VII of
the Civil Rights Act of 1964. See supra p. 10 n.14; Rennie,
896 F.2d at 1062. The Supreme Court has consistently
instructed that, in determining when such an action
accrues, the “proper focus is upon the time of the discrimi-
natory acts, not upon the time at which the consequences of
the acts became most painful.” Del. State Coll. v. Ricks, 449
U.S. 250, 258 (1980); see Chardon v. Fernandez, 454 U.S. 6,
8 (1981) (per curiam). This court has expanded on that
framework, essentially creating a two-prong test to deter-
mine the date of an unlawful employment practice: (1)
“there must be a final, ultimate, non-tenative decision to
terminate the employee”; and (2) “the employer must give
the employee ‘unequivocal’ notice of its final termination
decision.” Flannery v. Recording Indus. Ass’n of America,
354 F.3d 632, 637 (7th Cir. 2004) (quoting Dvorak v.
Mostardi Platt Assocs., Inc., 289 F.3d 479, 486 (7th Cir.
2002)) (internal citations omitted).
Applying the Flannery factors to Smith’s cause of action,
it is clear that she was both subject to a “final, ultimate,
non-tenative [employment] decision” and that she was
unequivocally notified of that decision. The first sentence of
the letter that was sent to Smith on October 22, 1998,16
conspicuously states: “You are hereby notified that you
will be removed from the Postal Service on November 27,
1998.” The letter goes on to explain the rationale for that
action, informing Smith that she has been “charged with:
Unacceptable Conduct—Vandalizing Employee’s Vehicle
Parked on Postal Property.” It is unlikely that a reasonable
person in Smith’s position could possibly draw any conclu-
sion from that language, except that the Postal Service had
made a “final, ultimate, non-tenative [employment] deci-
sion,” and that the effective date of that action was Novem-
16
Approximately two-and-a-half weeks after her attack on Hill’s
vehicle and well into her suspension which became effective on
that date, October 4, 1998.
No. 04-3531 13
ber 27, 1998. See Ricks, 449 U.S. at 258. Also, Smith does
not, and cannot, contend that she was not given prompt and
“unequivocal” notification of her dismissal.17 See Flannery,
354 F.3d at 637; Dvorak, 289 F.3d at 486. Accordingly,
Smith’s cause of action accrued on November 27, 1998, and
without more, her failure to file an EEO complaint until
more than 60 days later on February 3, 1999,18 see supra p.
5 n.5, barred her from bringing suit in federal court.19
17
Being that her employer was the Postal Service, it not only
makes sense that she was informed of her dismissal via Certified
Mail, foredooming at least this portion of her claim, it is also a bit
ironic.
18
This is the date that Smith filed an official informal complaint
with the USPS’s EEO office. See 39 C.F.R. § 255.6(d) (requiring
that employees that feels they have been discriminated against
“first exhaust informal administrative procedures before filing a
formal complaint”).
19
In a tag-along argument, Smith claims that instead of consider-
ing her effective date of dismissal, November 27, 1998, the court
should have referred to the date that her union grievance process
was concluded, June 6, 2001, in order to calculate the 45-day time
limit under § 1614.105. However, Smith does not, and cannot,
offer any precedential support for this conclusion. As the Supreme
Court held in Ricks, the “pendency of a grievance, or some other
method of collateral review of an employment decision does not
toll the running of the limitations period.” Ricks, 449 U.S. at 258.
(emphasis in original). Accordingly, in Smith’s case the limitations
period began to run on the effective date of her termination, and
her participation in the union grievance process would not toll the
running of the statute of limitations—regardless of whether she
was kept on the USPS payroll according to her collective bargain-
ing agreement or not. See Lucas v. Chicago Transit Authority, 367
F.3d 714, 723 (7th Cir. 2004) (stating that: “As we have explained,
‘[a]n employer’s refusal to undo a discriminatory decision is not a
fresh act of discrimination.’ ”); Librizzi v. Children’s Memorial
Med. Center, 134 F.3d 1302, 1306 (7th Cir. 1998); see also Ricks,
(continued...)
14 No. 04-3531
Johnson, 47 F.3d at 917.
Smith attempts to overcome this fact, arguing that
although she did not officially file a complaint until Febru-
ary of 1999, she did in fact “contact” the EEO within the
meaning of 29 C.F.R. § 1614.105 in October of 199820 when
19
(...continued)
449 U.S. at 257 (holding that “continuity of employment, without
more, is insufficient to prolong the life of a cause of action for
employment discrimination.”); Chardon, 454 U.S. at 9; Fairchild
v. Forma Scientific, Inc., 147 F.3d 567, 574 (7th Cir. 1998).
20
We note that neither this court nor the Postal Service has
addressed the precise contours of the term “contact” within the
context of § 1614.105(a). However, in Bailey v. United States
Postal Serv., the Eight Circuit encountered a similar situation in
which a Postal Service employee argued that the telephone call
she allegedly placed to the USPS’s EEO office within the 45-day
limit of § 1614.105(a) should constitute “contact” within the
meaning of that regulation. 208 F.3d 652, 654-55 (8th Cir. 2000).
The Eighth Circuit disagreed concluding that, in that instance, a
telephone call alone would not suffice. In doing so the court noted
that Bailey had failed to offer any evidence to support her
contention that during the phone call at issue, EEO counselors
had “led her to believe that she had taken all the steps necessary
to preserve her right to bring a claim in federal court.” Id. at 654.
To the contrary, the record included affidavits from the operators
who had spoke with Bailey stating that they had “informed Bailey
that her conversations with them would not be considered
requests for counseling and that such requests needed to be
submitted in writing within 45 days of the alleged discriminatory
incident.” Id. In addition, the court also concluded that Bailey’s
claim was belied by the fact that the “Postal Service . . . appears
to have a regular policy of requiring employees who allege
harassment to submit their EEO counseling requests in writing.”
Id. at 654 n.2. The EEOC, on the other hand, has consistently held
that “[t]o establish EEO contact, complainant[s] must contact an
official logically connected to the EEO process, and exhibit an
(continued...)
No. 04-3531 15
she allegedly telephoned the USPS’s EEO office and was
told that she was required to conclude the union grievance
process before filing an action.21 See supra pp. 6-7. To
support this contention, Smith cites her own affidavit dated
June 14, 2003 in which she states that “[s]hortly after [she]
was suspended, [she] telephoned the EEO office located at
the USPS regarding [her] removal which [she] believed to
be unfair and discriminatory.” However, a declaration of
this nature alone is insufficient to resist summary judg-
ment; for it is well settled that “self-serving statements
20
(...continued)
intent to file a discrimination claim.” Dehaan v. Chao, 2001 WL
1103726, *1, EEOC DOC 01A10009 (August 2, 2001) (citing Allen
v. United States Postal Service, EEOC Request No. 05950933 (July
9, 1996)). There seems to be an inherent conflict between the
Eight Circuit’s decision in Bailey, which suggests that telephone
contact is insufficient to constitute “contact” within the meaning
of 29 C.F.R. § 1614.105(a), and the EEOC’s statement that only
“intent” to file a claim is needed to satisfy the regulation. We
normally defer to an agency’s interpretation of its own regulations
unless “plainly erroneous or inconsistent with the regulation.”
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359,
104 L. Ed. 2d 351, 109 S. Ct. 1835 (1989) (quoting Bowles v.
Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945)). Neverthe-
less, because we need not resolve this issue to dispose of Smith’s
appeal, we reserve judgment on this issue until required to do so
in the future with a more complete record.
21
The Postal Service argues that Smith did not present this
argument to the district court, thus, constituting a waiver of the
argument. See, e.g., Harper v. Vigilant Ins. Co., 433 F.3d 521, 528
(7th Cir. 2005). However, a cursory review of Smith’s reply to the
Postal Service’s motion to dismiss establishes that this is not the
case. In that document, Smith specifically takes issue with the
Postal Service’s assertion that February 12, 1999 was the first
time she had “contact” with the USPS’s EEO office by stating
that: “This was not Kathy’s first contact with the EEO office
located at the USPS . . . .”
16 No. 04-3531
contained in an affidavit will not defeat a motion for
summary judgment when those statements are without
factual support in the record.” Evans v. City of Chicago, 434
F.3d 916, 933 (7th Cir. 2006) (quoting Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504 (7th Cir. 2004))
(internal citations omitted).
In a rather transparent, albeit clever, attempt to over-
come this unfavorable precedent, Smith proceeded to
introduce into evidence the affidavits of three other persons,
whom she claims to have told about her alleged October
telephone call to the EEO office, to corroborate her affidavit.
The affiants all state that in the week following her suspen-
sion in October of 1998, Smith told them that she had
contacted the USPS’s EEO office and had been told that she
must conclude the union grievance process prior to filing an
EEO complaint. For example, Damon D. Jermmott, a 19-
year-old who claims to have been acquainted with Smith
since 1997, conveniently states that: “The week following
her suspension, Kathy Smith told me that she contacted the
EEO office located at the United States Postal Service to
complain about the circumstances leading to her removal.”22
22
The other affidavits are very similar to that of Jermmott in
content. The only difference is that the other affiants are not
19 year-olds; they are in fact current or former postal workers.
Boyd G. “Butch” Stevens, Jr. states that he has “worked as a mail
handler for the [USPS] for 20 years” and has “known Kathy Smith
for 11 years.” Stevens further states that he “did not trust the
EEO office located at the USPS to give Kathy Smith good advice.”
Accordingly, Stevens told her to call another EEO office but she
was directed back to the USPS EEO office and “was told the EEO
could not help her until the union grievance process was com-
plete.” Similarly, Tammy Herwehe Zemke, who claims in her
affidavit to have been “wrongfully removed in 2001 from my
position with the USPS” states that “Kathy Smith told me that
she contacted the EEO office located at the USPS, but was told
the EEO could not help her until the union grievance process was
(continued...)
No. 04-3531 17
According to Smith, the affida-vits of Jermmott, Stevens
and Zemke corroborate her affidavit and thus are sufficient
to, at the very least, present a question of material fact.
Evans, 434 F.3d at 933. We disagree. The affidavits are
clearly offered to prove the truth of the matter asserted and
thus constitute inadmissible hearsay. See Fed. R. Evid.
801.23 As such, they may not be relied upon to resist a
22
(...continued)
complete.” Zemke also corroborated Smith’s claim by stating that
after she was dismissed from her job at the USPS in 2001, she
“contacted the EEO office at the USPS, and was told I would have
to complete the union grievance process before the EEO office
would process [her] claim.”
23
On appeal, Smith mistakenly argues that “the affidavits fall
within the exception of the hearsay rule under Fed.R.Ev. [sic]
801(d)(1)(B) as prior consistent statements of a witness.” This
couldn’t be further from the truth, for a number of reasons.
For one thing, the Supreme Court has made clear that: “Prior
consistent statements may not be admitted to counter all forms of
impeachment or to bolster the witness merely because she has
been discredited . . . . The Rule speaks of a party rebutting an
alleged motive, not bolstering the veracity of the story told.” Tome
v. United States, 513 U.S. 150, 166-67 (1995); United States v.
Stoecker, 215 F.3d 788, 791 (7th Cir. 2000). That is precisely what
Smith is trying to achieve by submitting the affidavits at issue
here—she is attempting to bolster the veracity of her story that
she called the EEO office in October of 1998—and, as such, they
will not be considered for purposes resisting summary judgment.
See Davis, 396 F.3d at 874 n.3; Galdikas, 342 F.3d 684 at 695.
What’s more, Smith seems to overlook the fact that, even if a
statement is submitted for a proper purpose such as to rebut a
claim of recent fabrication, such statements must have been
“made before the declarant had a motive to fabricate.” United
States v. Anderson, 303 F.3d 847, 858 (7th Cir. 2002) (quoting
United States v. Ruiz, 249 F.3d 643, 647 (7th Cir. 2001). Two of
the affidavits Smith submitted are dated June 11th and the other
(continued...)
18 No. 04-3531
motion for summary judgment. See Davis v. G.N. Mortgage,
396 F.3d 869, 874 n.3 (7th Cir. 2005) (citing Bombard v.
Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (1996));
Galdikas v. Fagan, 342 F.3d 684, 695 (7th Cir. 2003).
Ultimately, Smith has failed to present this court with
evidence sufficient to create a question of material fact as
to whether she complied with the 45-day period of limita-
tions set forth in 29 C.F.R. § 1614.105(a)(1). That being the
case, we agree with the district court’s conclusion that
Smith’s claim was time-barred and conclude that the grant
of summary judgment on that portion of Smith’s claim was
proper.
B. Equitable Estoppel
Smith next avers that the district court erred in conclud-
ing that, as a matter of law, the USPS was not equitably
estopped from asserting that her claim was barred by the
45-day statute of limitations deadline. In particular, Smith
finds fault with the district court’s conclusion that the
Postal Service did not engage in misrepresentation or
deception concerning the limitations period of
§ 1614.105(a)(1). Again, we disagree.
This court has repeatedly held that, in the statute of
limitations context, the equitable doctrine of estoppel only
comes “into play if the defendant takes active steps to
prevent the plaintiff from suing in time.” Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450-51 (7th Cir. 1990); see
23
(...continued)
is dated June 13, 2003. This was long after Smith obtained a
motive to fabricate a story about having called the EEO office in
October of 1998, and was coincidentally only approximately a
week after she filed suit in federal court.
No. 04-3531 19
Lucas, 367 F.3d at 722; see also Mull v. ARCO Durethene
Plastics, Inc., 784 F.2d 284, 292 (7th Cir. 1986) (“Equitable
estoppel is available only if the employee’s otherwise
untimely filing was the result either of 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.”) (citation and quotation omitted).
However, even if a plaintiff has demonstrated that an
employer took affirmative steps to lull them into inaction
concerning the filing of a discrimination charge, the plain-
tiff must also establish “actual and reasonable reliance on
the defendant’s conduct or representations.” Mull, 784 F.2d
at 292 (quoting Naton v. Bank of California, 649 F.2d 691,
696 (9th Cir. 1981)); see Hentosh v. Herman M. Finch Univ.
of Health Sciences/Chicago Med. Sch., 167 F.3d 1170, 1174
(7th Cir. 1999); Wheeldon v. Monon Corp., 946 F.2d 533, 537
(7th Cir. 1991). Smith has failed to sufficiently establish
either of these requirements.
In essence, Smith’s equitable estoppel argument is
nothing more than a cheap imitation of her unavailing
arguments discussed above. The only evidence that Smith
submitted to support her claim that the USPS either
deliberately or knowingly sought to deceive her into filing
an untimely EEO action was her own self-serving affidavit
and the affidavits of three of her acquaintances. See supra
pp. 15-16. As we have already determined, Smith’s own
affidavit is insufficient to resist summary judgment, see
supra at 16; Evans, 434 F.3d at 933, and the three corrobo-
rating affidavits may not be considered for purposes of a
motion for summary judgment due to the fact that they
constitute inadmissable hearsay. See supra pp. 15-16;
Davis, 396 F.3d at 874 n.3. Thus, because Smith cannot
establish that the Postal Service took “active steps to
prevent [her] from filing on time,” Cada, 920 F.2d at 450-51,
her equitable estoppel claim must fail as a matter of law.
20 No. 04-3531
Also, even if we were to assume arguendo that Smith
presented sufficient evidence of wrongdoing on the part of
the Postal Service, she has failed to demonstrate that she
reasonably relied on any bad advice she was given. As the
district court noted, the record reflects that there was an
“abundance of correct information [for Smith to seek out],
including the various posters throughout the workplace
which inform grievants of the 45-day time limit for filing an
EEO complaint.” Given the pervasiveness of correct infor-
mation at Smith’s workplace, it is disingenuous of her to
argue that she reasonably relied on a single, brief telephone
call to lead her astray. See Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96 (1990) (stating “that federal courts
have typically extended equitable relief only sparingly”); see
also Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997)
(holding that one telephone call to an EEO counselor who
allegedly gave an employee bad advice was not enough to
establish that the employee “in some extraordinary way has
been prevented from asserting his or her rights” for pur-
poses of equitable tolling).
C. Deference to the EEOC
Smith’s final argument on appeal borders on frivolous,
but for the sake of completeness we will discuss it briefly.
Essentially, Smith claims that “the district court should
have deferred to the EEOC’s determination that [her] claim
was timely.” Smith refers, of course, to the EEOC’s Septem-
ber 12, 2002 decision reversing the EEO and holding that
her filing was timely under 29 C.F.R. § 1614.105(a)(1). See
supra p. 7. Nevertheless, there is a very fundamental
reason why the district court properly refused to accord the
EEOC’s decision any deference whatsoever and why this
court should not follow suit.
When a federal employee files a Title VII suit in federal
court, the district court charged with deciding that action is
No. 04-3531 21
required to preform a de novo review of the record, includ-
ing administrative agency proceedings. See Chandler v.
Roudebush, 425 U.S. 840, 861 (1976); Kontos v. U.S. Dep’t.
of Labor, 826 F.2d 573, 575 n.4 (7th Cir. 1987) (stating that
“we explicitly uphold the long-presumed position that all
agency decisions involving federal employee discrimination
claims are entitled to de novo review in the federal courts).
Likewise, our review of the district court’s decision is de
novo. See Evans, 434 F.3d at 924. Thus, neither this court,
nor a district court, is under any obligation to defer to the
determination of an administrative agency in an action
which falls under Title VII of the Civil Rights Act of 1964.
See id. Indeed, to do otherwise would be grounds for
reversal.
IV. CONCLUSION
The decision of the district court is
AFFIRMED.
22 No. 04-3531
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-2-06