Robinson v. Dalton

• Decision Date: 04 November 1996
• Docket Number: No. 96-1212,96-1212
• Citation: 107 F.3d 1018
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 387, 70 Empl. Prac. Dec. P 44,749, 37 Fed.R.Serv.3d 209 Dennis ROBINSON, Appellant, v. John H. DALTON, Secretary to United States Department of the Navy. . Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 1018

107 F.3d 1018

73 Fair Empl.Prac.Cas. (BNA) 387,

70 Empl. Prac. Dec. P 44,749, 37 Fed.R.Serv.3d 209

Dennis ROBINSON, Appellant, v. John H. DALTON, Secretary to United States Department of the Navy.

No. 96-1212.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit

LAR 34.1(a) Nov. 4, 1996.

Decided Feb. 28, 1997.

Mark S. Scheffer, Larry Pitt & Associates Philadelphia, PA, for Appellant.

David R. Hoffman, Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: SLOVITER, Chief Judge McKEE and ROSENN, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Chief Judge.

Plaintiff, who filed a Title VII action alleging that he was fired from the Navy in retaliation for his previous charges of racial discrimination, appeals from the district court's dismissal for lack of subject matter jurisdiction. On appeal, we must examine both the procedure for the district courts to use in deciding whether a plaintiff failed to exhaust administrative remedies and the type of agency action that warrants application of equitable tolling. We also consider when a previously filed administrative complaint encompasses a charge based on a subsequent discharge.

I. Facts and Procedural History

During 1989, Dennis Robinson, an employee at the Philadelphia Naval Shipyard, filed three separate complaints with the Navy's Equal Employment Opportunity ("EEO") Office alleging racial discrimination and retaliation. From the information available to us it appears that at different times during the year (March 14, March 29, and June 26), Robinson filed complaints alleging that the Navy 1) denied his sick leave from August 27--October 26, 1988 and promoted a white employee to permanent general foreman; 2) placed him on an unauthorized leave status on January 25, 27, 30 and, as well as February 1 and 3, 1989; and 3) issued him an indebtedness letter of $9,800 for disapproved sick leave and cited him for creating an asbestos hazard. These complaints were consolidated and, following administrative proceedings and investigation, resulted in a finding by the EEOC of no discrimination by the Department of the Navy. Robinson's request for reconsideration was denied and the EEO issued a letter on May 4, 1995 informing him that he had no further rights of administrative appeal but could file a civil action in federal district court within 90 days.

In addition to the absences referred to in his EEO complaints, Robinson was absent from his job without authorization for a long period beginning on November 27, 1989. He was instructed on January 5, 1990 to contact his employee relation specialist to explain the reasons for his prolonged absence and was told that his failure to do so by January 12, 1990 would result in his absence being unauthorized and that the Navy would take action to terminate his employment at the shipyard. Robinson failed to comply with the Navy's directions.

On January 26, 1990 the Navy wrote to Robinson that it proposed to remove him from his employment due to excessive unauthorized absences and creating an asbestos hazard. Robinson responded with a letter from his doctor but the Navy determined that this letter did not adequately justify Robinson's absence and it requested additional information. Robinson never provided any further information. The Navy then terminated his employment on April 5, 1990.

Robinson brought this suit in district court claiming that he was fired in retaliation for the previous charges of racial discrimination. He invoked jurisdiction based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ¹

Although Robinson's complaint alleges that he had filed a complaint with the Navy's EEO counselor and exhausted all of his administrative prerequisites, App. at 15, the Navy moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim or Rule 56 for summary judgment, asserting that Robinson had failed to exhaust his administrative remedies. The district court converted the motion into a Rule 12(b)(1) motion and then conducted a three-day evidentiary hearing to determine whether it had jurisdiction over the claim.

Among the evidence relevant to the district court's ultimate ruling was Robinson's testimony that he talked to an EEO counselor over the telephone, who he thought was Shirley Brown, who told him that he did not have to file a complaint, App. at 89, and his affidavit stating that the counselor told him that since he had other claims of retaliation pending, he did not have to file another separate complaint, App. at 50. In response, the Navy provided a computer printout from the Navy EEO office which showed that Robinson had first contacted an EEO officer on October 3, 1990, six months after he was terminated. Karl Pusch, an EEO counselor, testified that he remembered completing an EEO intake form on that day. A mail record shows that the EEO office sent Robinson a Notice of Final Interview on October 15, 1990. Furthermore, Brown and Pusch both testified that they would never have advised a complainant not to file a complaint.

The district court dismissed Robinson's complaint stating that

we need not decide whether Robinson was not telling the truth in his affidavit or whether he simply misrecollects the events of 1990, since it is sufficient merely to conclude that he has not met his burden of showing either that he timely contacted an EEO counselor within thirty days of his termination or that an EEO counselor misled him into failing to follow the proper procedures.

App. at 27. Robinson filed a timely appeal.

II. Discussion

A.

We do not reach on this appeal the merits of Robinson's Title VII claim. Rather, we limit our consideration to the procedure used by the district court in dismissing the action under Rule 12(b)(1), the sufficiency of Robinson's contention of equitable estoppel, and the effective scope to be given a pending EEOC complaint.

It is a basic tenet of administrative law that a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). We have explained that the purposes of the exhaustion requirement are to promote administrative efficiency, "respect[ ] executive autonomy by allowing an agency the opportunity to correct its own errors," provide courts with the benefit of an agency's expertise, and serve judicial economy by having the administrative agency compile the factual record. Heywood v. Cruzan Motors, Inc., 792 F.2d 367, 370 (3d Cir.1986).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, establishes the exclusive remedy for federal employees who allege discrimination in the workplace. Under regulations promulgated by the EEOC in effect in 1990, an aggrieved federal employee was required to initiate contact with an agency counselor within 30 days of "the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action." 29 C.F.R. § 1613.214(a)(1)(i) (1990). A formal EEOC complaint must be filed "within 15 calendar days after the date of receipt of the notice of the right to file a complaint." 29 C.F.R. § 1613.214(a)(1)(ii). Finally, in order to bring an action in district court the employee must do so either within 30 days of receipt of notice of final agency action or within 180 days from the date of filing the complaint if the agency has not reached a decision. 29 C.F.R. § 1613.281 (1990). Thus, exhaustion requires both consultation with an agency counselor and filing a formal EEOC complaint within the required times.

In its motion to dismiss, the Navy argued that Robinson had waited over six months after he was terminated before seeking EEO counseling and then failed to file a formal EEOC complaint after his final counseling session. Robinson's response was twofold: first, that he did not have to exhaust his administrative remedies because his termination was fairly included within the scope of his pending EEOC complaints and second, that he did contact an EEO Counselor within 30 days of his termination and was told that he did not have to file an additional charge of retaliation. He argued that because he was misled by the EEO Counselor, the Navy should be estopped from challenging his failure to exhaust or timely file. The district court granted the Navy's motion, and dismissed.

On appeal, Robinson argues that the district court erred in failing to treat the Navy's motion to dismiss for lack of jurisdiction as a motion for summary judgment once the court looked beyond the face of the pleadings, and that summary judgment was precluded because there were disputed issues of material fact.

Ordinarily, if "matters outside the pleadings are presented to ... the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.Pro. 12(c). On the other hand, when there is a factual question about whether a court has jurisdiction, the trial court may examine facts outside the pleadings and thus "the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction--its very power to hear the case." Mortensen v. First Federal Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). We have explained that in such a circumstance, a trial court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Intern. Ass'n of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 (3d Cir.1982). Unlike the procedure governing summary judgment, under a Rule 12(b)(1) motion to dismiss "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of...