Mosley v. Pena

• Decision Date: 19 November 1996
• Docket Number: No. 95-6311,95-6311
• Parties: PAULETTA C. MOSLEY, Plaintiff-Appellant, v. FEDERICO PENA, Secretary of the Department of Transportation, Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1515

100 F.3d 1515

PAULETTA C. MOSLEY, Plaintiff-Appellant, v. FEDERICO PENA, Secretary of the Department of Transportation, Defendant-Appellee.

No. 95-6311

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

November 19, 1996

Appeal from the United States District Court for the W. District of Oklahoma, (D.C. No. CIV-94-1353-L) Jim T. Priest, McKinney, Stringer & Webster, Oklahoma City, OK (Greg L. Maguire, Dean & Associates, Jones, OK, on the brief), for Plaintiff-Appellant.

Steven K. Mullins, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, and Robert J. Troester, Assistant United States Attorney, with him on the brief), Oklahoma City, OK, for Defendant-Appellee.

Before TACHA, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Plaintiff brought this action for discrimination based on race and retaliation, alleging that defendant's actions violated Title VII of the Civil Rights Act of 1964. Plaintiff's amended complaint included three separate claims of discrimination. The district court granted summary judgment to defendant, holding that plaintiff's first claim was timebarred; that her second claim was filed prematurely because she failed to exhaust her administrative remedies; and that she had failed to establish a prima facie case with respect to her third claim. We affirm the grant of summary judgment on each of her claims.

Plaintiff Pauletta Mosley, an African-American, was employed by the Federal Aviation Administration (FAA) from 1969 until 1994, when she retired. After she was denied a promotion in 1990, Mosley filed administrative complaint 91-43, alleging discrimination based on race and in retaliation for her previous charge of discrimination in another case. The agency issued a finding of no discrimination and plaintiff thereafter appealed to the Equal Employment Opportunity Commission (EEOC). The EEOC affirmed the agency's finding of no discrimination on April 29, 1994. On August 18, 1994, Mosley filed her Complaint in district court.

In January 1993, after she was passed over for promotion a second time and while her first complaint was still pending before the EEOC, Mosley filed administrative complaint 93-141, again alleging discrimination based on race and retaliation. The agency issued a finding of no discrimination and Mosley appealed the decision to the EEOC. On September 6, 1994, Mosley requested that the EEOC cancel her appeal and issue a right-to-sue letter. On September 19, 1994, before receiving a response from the EEOC, Mosley filed an Amended Complaint in district court which included claim 93-141.

On April 8, 1993, Mosley filed her last administrative complaint, 93-377, alleging discrimination in the settlement process of claim 93- 141. On November 26, 1993, while 93-377 was pending, Mosley was again denied a promotion. The agency issued its finding of no discrimination on claim 93-377 on August 18, 1994. Mosley thereafter included 93-377 in her Amended Complaint filed September 19, 1994.

The district court granted summary judgment to defendant on all three claims, holding that 91-43 was time-barred; that 93-141 was prematurely filed because Mosley had failed to exhaust her administrative remedies; and that Mosley had failed to establish a prima facie case of discrimination in 93-377.

Plaintiff first challenges the district court's grant of summary judgment on claim 91-43. She argues that her appeal was timely or, in the alternative, that equitable considerations justify tolling the filing requirements of 42 U.S.C. Section(s) 2000e-16(c).

This court reviews the district court's entry of summary judgment de novo, applying the same legal standard used by the district court. Schusterman v. United States, 63 F.3d 986, 989 (10th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 1823, 134 L.Ed.2d 929 (1996). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

Section 2000e-16(c) of Title VII requires a plaintiff suing for racial discrimination in federal employment to file a claim within ninety days of receipt of notice of a final action by the EEOC. Compliance with the filing requirements of Section(s) 2000e-16(c) "is not a jurisdictional prerequisite, rather it is a condition precedent to suit that functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling." Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995). "Equitable tolling may be appropriate where `the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights.'" Id. (quoting Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981, 985 (10th Cir. 1981)).

For purposes of determining when the plaintiff received notice of the EEOC's final action, notice to an attorney is imputed to the client. Noe v. Ward, 754 F.2d 890, 892 (10th Cir. 1985). Because Mosley failed to notify the EEOC that she was no longer represented by counsel, notice to her former attorney is properly imputed to her. But see Coates v. Shalala, 914 F. Supp. 110, 112 (D. Md. 1996).

Mosley asserts that her former attorney, Alma Washington, did not receive notice of the EEOC's final action in 91-43 until May 20, 1994, and that her complaint was timely filed ninety days later. The record, however, contains a copy of a signed receipt indicating Washington received notice of the EEOC's final action by certified mail on May 16, 1994. Notwithstanding this evidence, Mosley relies on unspecified "Post Office procedures" and a series of handwritten numbers on the envelope to argue that Washington did not receive the EEOC's letter until May 20, 1994. Mosley has failed, however, to point to any record evidence to support her bare allegation that the numbers on the envelope relate to the letter's actual date of delivery. Accordingly, we affirm the district court's grant of summary judgment on claim 91-43.

In the alternative, Mosley argues that the time for filing her claim should be equitably tolled because she was misled by the EEOC's "inconsistent mailing practices" and by its failure to comply with the Code of Federal Regulations. Having carefully reviewed the record on appeal, the court determines that the EEOC's actions did not actively mislead the plaintiff. Plaintiff's reliance on the mailing practices of non-EEOC agencies to support her claim that the EEOC misled her is misplaced; her argument that she relied upon EEOC statements and practices of which she was not yet aware is disingenuous. Moreover, because plaintiff does not claim to have relied upon the C.F.R. sections she cites, her argument that she was misled by the EEOC's failure to comply with them is unpersuasive.

Mosley next challenges the district court's grant of summary judgment on claim 93-141 for failure to exhaust administrative remedies. Administrative exhaustion is a jurisdictional prerequisite to suit under 42 U.S.C. Section(s) 2000e-16. Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993). Despite this general requirement, a plaintiff may be excused from exhausting administrative remedies on related claims of discrimination or retaliation that occur after the filing of the original EEOC complaint. Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir. 1994). This exception, however, does not apply to Mosley because she treated her retaliation claim 93-141 as a separate and distinct claim from the underlying claim of discrimination.

In Ingels, the plaintiff's retaliation claim was not the subject of a separate EEOC claim. Id. at 620. Rather, the plaintiff added the related retaliation claim to his fully exhausted underlying EEOC claim at the district court level. Id. Ingels asserted he was not required to file separate administrative charges for his retaliation claim because that claim was related to his...