Charles H. Johnson v. William J. Henderson ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-3655WA
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Charles Henry Johnson, *
*
Appellant, * On Appeal from the United States
* District Court for the
v. * Western District of Arkansas.
*
William H. Henderson, Postmaster * [To Be Published]
General, United States Postal Service, *
*
Appellee. *
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Submitted: November 29, 2000
Filed: December 8, 2000
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Before RICHARD S. ARNOLD, HANSEN, and BYE, Circuit Judges.
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PER CURIAM.
Charles Johnson appeals the District Court’s1 adverse grant of summary
judgment in his Age Discrimination in Employment Act and Title VII lawsuit in which
he alleged that the United States Postal Service (USPS) did not hire him on account of
1
The Honorable Bobby E. Shepherd, United States Magistrate Judge for the
Western District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
age and race discrimination. The Court granted Defendant’s motion for summary
judgment because Johnson had failed to exhaust his administrative remedies: he
initially submitted his Equal Employment Opportunity Complaint of Discrimination in
the Postal Service to the wrong office, then submitted it to the correct office after the
applicable time limit had run.
We agree with the District Court that the time for filing the complaint began
when Johnson received the complaint form and the filing instructions, not when he
retained counsel and furnished the materials to him. See Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 92 (1990) (time for filing Title VII suit runs from
claimant’s or claimant’s attorney’s receipt of Equal Employment Opportunity
Commission letter, whichever comes first). We also agree with the Court that the
materials unambiguously informed Plaintiff of the correct office with which to file the
complaint and of the deadline for filing, and that the erroneous filing was his or his
attorney’s--not USPS’s--fault, so that equitable tolling does not apply. See id. (no
equitable tolling where late filing is result of attorney’s ordinary neglect); Shempert v.
Harwick Chem. Corp., 151 F.3d 793, 798 (8th Cir. 1998) (no equitable tolling where
language of EEOC letter was not misleading and plaintiff had benefit of counsel), cert.
denied, 525 U.S. 1139 (1999); Harris v. Administrator, Veterans Admin., 924 F.2d
148, 149-150 (8th Cir. 1991) (plaintiff initially filed administrative appeal with wrong
agency, which returned it to him, and he then filed it late with correct agency; it was
thus properly dismissed, and equity did not require tolling).
Finally, we decline to consider Plaintiff’s argument, raised for the first time on
appeal, regarding the Uniformed Services Employment and Reemployment Rights Act
of 1994. See Tarsney v. O’Keefe, 225 F.3d 929, 939 (8th Cir. 2000) (this Court
generally will not consider argument raised for first time on appeal).
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Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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