Wilson v. Secy Dept Vet Affair

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-30060
(Summary Calendar)
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FREDDIE M. WILSON,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF VETERANS
AFFAIRS, obo, VETERANS CANTEEN
SERVICES, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
For the Western District of Louisiana
(CV 93 2179)
_______________________________________________
(August 23, 1995)
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Freddie Wilson filed an action against Jesse Brown, Secretary
of the Department of Veterans Affairs, James Donohoe, Director of
Veterans Canteen Services, and Charles Lizyness, alleging
violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
(1988), and claims under the Federal Tort Claims Act, 28 U.S.C.
*
Local Rule 47.5.1 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
§§ 2671-2680 (1988). The district court issued an order
dismissing both claims or in the alternative granting summary
judgment against Wilson. She appeals the court's ruling on the
Title VII claim. We affirm.
I
On December 17, 1991, Wilson filed a formal complaint with the
Equal Employment Opportunity Commission ("EEOC"), alleging that her
supervisor had sexually harassed her during her employment with the
Department of Veterans Affairs. The EEOC found her application
untimely and dismissed her complaint. Wilson's attorney received
notice of the EEOC decision on May 3, 1993, and mailed a copy to
Wilson in Germany. Wilson received the decision on May 25, 1993,
and mailed a letter to the EEOC on May 28, 1993, discussing
information relating to her claim. On June 7, 1993, Wilson's
attorney submitted a Form 573 to the EEOC, requesting an appeal of
the Agency's decision.1 The EEOC found that the notice violated
the thirty-day time limit on such appeals and denied the appeal.2
Subsequently, Wilson brought this action under Title VII of the
1
Form 573 is the EEOC's "Notice of Appeal/Petition" form. 29 C.F.R.
§ 1614.403(a). Under the applicable regulations, "[t]he complainant should use
EEOC Form 573, Notice of Appeal/Petition, and should indicate what he or she is
appealing." Id.Section 1614 became effective on October 1, 1992. 57 Fed. Reg. 12634(1992). Wilson filed her complaint on December 17, 1991, before that section
became effective. The EEOC should, therefore, have processed her complaint under
the previous § 1613. Id. However, the time limit for appeal under § 1613 is
twenty days as compared to the thirty-day limit allowed by § 1614. 29 C.F.R.
§§ 1613.233, 1614.402. Under § 1613, even Wilson's letter of May 28 would have
been late; accordingly, we defer to the EEOC's decision to apply the more lenient
regulations to Wilson's appeal.
2
The Commission used May 3))the date when Wilson's attorney received
notice of the denial of her application))and June 7))the date that Wilson's
attorney filed the Form 753 with the EEOC))to establish that she had not appealed
within the thirty-day limit.
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Civil Rights Act and the Federal Tort Claims Act. The Secretary
moved for summary judgment, arguing that because Wilson's request
for appeal had been untimely, she had failed to exhaust her Title
VII administrative remedies, thereby barring her from bringing an
action in district court. The Secretary also argued that the
district court lacked subject matter jurisdiction over the FTCA
claim. The district court granted the motion for summary judgment
on the Title VII claim, and it dismissed the FTCA claim with
prejudice. Wilson now appeals.
II
Wilson contends that the district court should not have
granted summary judgment on her Title VII claim, arguing that the
Agency erroneously dismissed her appeal because (1) her letter of
May 28 was a notice of appeal filed within the statute of
limitations, and (2) alternatively, equitable considerations
entitle her to a tolling of the statute. We exercise de novo
review of the grant of a summary judgment. Duffy v. Leading Edge
Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995). Summary judgment
"shall be rendered forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits if any show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c).
Wilson argues that the EEOC incorrectly decided that her
appeal was untimely. "If an EEOC charge is untimely filed, a suit
based upon the untimely charge should be dismissed." Barrow v. New
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Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir. 1991); Templeton
v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir. 1979) (per
curiam); see also National Ass'n of Gov't Employees v. City Pub.
Serv., 40 F.3d 698, 711 (5th Cir. 1994) ("[C]ourts have no
jurisdiction to consider Title VII claims as to which the aggrieved
party has not exhausted administrative remedies.").
We will reverse an agency's interpretation of its regulations
only if the decision is arbitrary or capricious. Motor Vehicle
Mfrs. Ass'n. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42,
103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983) ("The scope of
review under the `arbitrary and capricious' standard is narrow and
a court is not to substitute its judgment for that of the
agency."); Wilson v. United States Dep't of Agric., 991 F.2d 1211,
1215 (5th Cir. 1993) (looking "at the agency's decision to
determine if it was reached in an arbitrary or capricious
manner."), cert. denied, ___ U.S. ___, 114 S. Ct. 1296, 127 L. Ed.
2d 649 (1994). "A decision is arbitrary or capricious only when it
is `so implausible that it could not be ascribed to a difference in
view or the product of agency expertise.'" Wilson, 991 F.2d at
1215 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S. Ct.
at 2867). "The agency decision need only have a rational basis,
and it does not have to be a decision which the court would have
made." Wilson, 991 F.2d at 1215.
Wilson argues that her letter to the EEOC on May 28 was an
appeal and should have satisfied the statute of limitations. EEOC
regulations provide that:
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The complainant, agent, grievant or individual class
claimant (hereinafter complainant) must file an appeal
with the Director, Office of Federal Operations, Equal
Employment Opportunity Commission, at P.O. Box 19848,
Washington, DC 20036, or by personal delivery or
facsimile. The complainant should use EEOC Form 573,
Notice of Appeal/Petition, and should indicate what he or
she is appealing.
29 C.F.R. § 1614.403(a).
Wilson asserts nothing more than that this court should
consider her letter an appeal. Wilson provides no authority,
however, to support excusing her failure to comply with the
regulations. Also, the letter did not state that she was appealing
the EEOC's decision. We therefore hold that the Commission's
decision that Wilson did not file a timely appeal was not arbitrary
or capricious.
Wilson alternatively contends that equitable considerations
merit a tolling of the thirty-day time limit on filing an appeal to
the EEOC. EEOC regulations allow that "[t]he time limits in this
part are subject to waiver, estoppel and equitable tolling." 29
C.F.R. § 1614.604(c). A complaining party in a Title VII case
bears the burden of providing the justification for application of
equitable tolling principles. Nowlin v. RTC, 33 F.3d 498, 503 (5th
Cir. 1994); Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.
1988), cert. denied, 488 U.S. 1007, 109 S. Ct. 789, 102 L. Ed. 2d
781 (1989).
In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir.
1979), we discussed three possible bases for tolling: (1) the
pendency of a suit between the same parties in the wrong forum;
(2) plaintiff's unawareness of the facts giving rise to the claim
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because of the defendant's intentional concealment of them; and
(3) the EEOC's misleading the plaintiff about the nature of her
rights. See id. at 1302-03. None of these apply in this case, but
"Chappell does not hold that these three are the only bases for
tolling . . . ." Blumberg, 848 F.2d at 644-45. Therefore,
Wilson's inability to satisfy one of the bases for tolling under
Chappell is not necessarily fatal to her claim. However, we "have
generally been much less forgiving in receiving late filings where
the claimant failed to exercise due diligence in preserving his
legal rights." Irwin v. Department of Veterans Affairs, 498 U.S.
89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435 (1990); see also
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151, 104 S. Ct.
1723, 1726, 80 L. Ed. 2d 196 (1984) (per curiam) ("One who fails to
act diligently cannot invoke equitable principles to excuse that
lack of diligence."); Pacheco v. Rice, 966 F.2d 904, 906 (5th Cir.
1992) (requiring due diligence to warrant equitable tolling).
Wilson argues that despite all "due diligence," overseas
mailing delays caused her appeal to be untimely. Such delays, she
contends, are clearly a "circumstance beyond complainant's control"
and entitle her to equitable tolling. Wilson claims to have acted
with all due diligence but she provides no support for this
contention. She fails to explain why she could not have notified
her attorney of her intent to appeal in the event of a unfavorable
decision by the EEOC. She also fails to explain why she could not
have avoided overseas mail and communicated via telephone or
facsimile machine. Because it was within Wilson's power to
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ameliorate the circumstances that resulted in her untimely filing,
we agree with the D.C. Circuit that overseas delays do not warrant
tolling. See Rao v. Baker, 898 F.2d 191 (D.C. Cir. 1990) (holding
that mailing delays to Philippines did not justify tolling or
excuse lack of diligence).
Indeed, to some extent, we question the relevance of the
overseas delays to Wilson's claim for equitable tolling, because
her attorney could have responded for her. Notice to her attorney
constituted notice to Wilson, Irwin, 498 U.S. at 96, 111 S. Ct. at
458; see also 29 C.F.R. § 1614.402(b) ("If the complainant is
represented by an attorney of record, then the 30-day time period
. . . shall be calculated from the receipt of the required document
by the attorney."), and Wilson offers no explanation for her
attorney's failure to protect her rights. Accordingly, Wilson's
counsel's inaction does not warrant an extension of the limitations
period. See Irwin, 498 U.S. at 96, 111 S. Ct. at 458 (refusing to
toll a 30 day statute of limitations in a Title VII case, where the
plaintiff was late in filing because his attorney had been out of
the office when the EEOC notice was received, and holding that
"principles of equitable tolling . . . do not extend to what is at
best a garden variety claim of excusable neglect"). Wilson has
filed to meet her burden to show that the EEOC should have applied
equitable tolling to her appeal; therefore, the district court
properly granted summary judgment to the Secretary.
III
For the foregoing reasons, we AFFIRM the judgment of the
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district court.
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