Boos v. Runyon

• Citation: 201 F.3d 178
• Decision Date: 01 August 1999
• Docket Number: Docket No. 97-6110
• Parties: (2nd Cir. 2000) GAIL BOOS, Plaintiff-Appellant, v. MARVIN T. RUNYON, Jr., Postmaster General U.S. Postal Service; U.S. POSTAL SERVICE, Washington, D.C.; CARL F. BOTHE, General Manager; H. PACKER, Dr., Medical Officer, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 178

201 F.3d 178 (2nd Cir. 2000)

GAIL BOOS, Plaintiff-Appellant, v. MARVIN T. RUNYON, Jr., Postmaster General U.S. Postal Service; U.S. POSTAL SERVICE, Washington, D.C.; CARL F. BOTHE, General Manager; H. PACKER, Dr., Medical Officer, Defendants-Appellees.

Docket No. 97-6110

August Term, 1999

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Argued: Oct. 8, 1999

Decided: Jan. 6, 2000

The plaintiff, a former employee of the United States Postal Service, appeals from a decision of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) granting defendants' motion to dismiss plaintiff's complaint and, in the alternative, granting summary judgment to the defendant. We affirm the grant of summary judgment.

ROBERT R. BRIGLIO, Islandia, N.Y., for Plaintiff-Appellant.

DAVID L. GOLDBERG, Assistant United States Attorney, Eastern District of New York (Zachary W. Carter, United States Attorney, Eastern District of New York; Deborah B. Zwany, Assistant United States Attorney, Eastern District of New York, on the brief), for Defendants-Appellees.

Before: JACOBS, CALABRESI, and SOTOMAYOR, Circuit Judges

CALABRESI, Circuit Judge:

Plaintiff-appellant Gail Boos, a former employee of the United States Postal Service ("USPS"), appeals from a judgment of the United States District Court for the Eastern District of New York (Joanna Seybert, Judge) dismissing her complaint of disability discrimination because Boos had failed to exhaust her administrative remedies prior to filing suit in federal court. In the alternative, the district court treated defendants-appellees' motion to dismiss as a motion for summary judgment and granted that motion on the ground that Boos had failed to seek Equal Employment Opportunity ("EEO") counseling in a timely manner as required by 29 C.F.R. 1614.105(a)(1) (1999). The district court held that Boos failed to raise a genuine issue of material fact as to whether, because of her mental illness, she was entitled to equitable tolling of the deadline for seeking EEO counseling. We agree with the district court on the issue of equitable tolling, and we therefore affirm its grant of summary judgment.

I. BACKGROUND

Gail Boos was employed by the USPS for almost ten years, from July 1984 through May 1994, as a mail handler at the USPS Western Nassau Processing and Distribution Center in Garden City, New York. She claims that the dust and the heavy physical labor of her job in the distribution center aggravated an asthmatic condition from which she suffered and that, as a result, she sought reassignment and transfer to a position as a Computer Operator/Mark-Up Clerk at the Computer Forwarding Systems unit at the USPS facility in Melville, New York. In September 1993, Boos scored 93.6% on the written exam for a position as a Mark-Up Clerk. By letter dated January 21, 1994, Boos was notified, however, that her application had not been accepted. In March 1994, Boos took the typing portion of the open competitive application process and scored 100%. On April 1, 1994, Boos requested an explanation for her failure to obtain the transfer and, according to Boos, "did not receive a satisfactory response." Boos Affidavit at 10. Soon thereafter, she resigned from her position as a mail handler.

On August 10, 1994, three months after leaving the USPS, Boos requested EEO counseling, alleging that she had been discriminated against in January 1994 on the basis of her asthma. About a month later, she filed a formal EEO complaint with the USPS. Her complaint was rejected, however, because she had not initiated EEO counseling within forty-five days of the allegedly discriminatory incident, as required by 29 C.F.R. 1614.105(a)(1), and because she did not show cause why the time limit should be extended, as is permitted in certain circumstances under 29 C.F.R. 1614.105(a)(2).¹

Boos appealed the EEO decision to the Equal Employment Opportunity Commission ("EEOC"), which affirmed the denial of Boos's claim in April 1995. On May 11, 1995, Boos sought reconsideration of the EEOC ruling. And on June 13, 1995, well before the EEOC issued its final decision on her appeal, she brought this suit in the federal district court under the Rehabilitation Act, 29 U.S.C. 701 et seq. (1994 & Supp. 1999), alleging discrimination on the basis of her asthma. Later, on June 10, 1996 (after the issuance of the EEOC final ruling), she amended her complaint to add discrimination on the basis of mental illness.

Defendants moved to dismiss Boos's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Finding that Boos had not exhausted her administrative remedies prior to filing her suit and that this failure deprived the district court of subject matter jurisdiction, the district court granted defendants' motion and dismissed Boos's claim with prejudice. Alternatively, the district court treated the defendants' motion to dismiss as a motion for summary judgment and held that Boos had failed to demonstrate the existence of any genuine issue of material fact that could mitigate her failure to seek EEO counseling within forty-five days of the allegedly discriminatory incident, as required by 29 C.F.R. 1614.105(a)(1). The court rejected Boos's argument that the forty-five day limit should be equitably tolled because of her mental illness. Boos appealed.²

II. DISCUSSION

A. Exhaustion of Remedies

EEOC regulations require an employee suing the federal government under the Rehabilitation Act to exhaust certain administrative remedies before initiating a suit in the district court. Thus, an aggrieved agency employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act. See 29 C.F.R. 1614.105(a)(1). The employee must then file an EEO complaint with "the agency that allegedly discriminated against the complainant." Id. 1614.106. Within ninety days of that agency's final decision, or after the passage of 180 days from the filing of the complaint with the agency if no final decision has yet been rendered, the complainant may file suit in federal court. See id. 1614.408. In the case of a plaintiff, like Boos, who has appealed an EEO decision to the EEOC, the regulations state that "[a] complainant . . . is authorized under . . . the Rehabilitation Act to file a civil action in an appropriate United States District Court . . . [w]ithin 90 days of receipt of the Commission's final decision on an appeal; or . . . [a]fter 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commission." Id.

The district court in this case did not decide whether the requirement that a federal employee seek EEO counseling within a specified time is jurisdictional in nature or whether it is instead more akin to a statute of limitation (and therefore subject to equitable tolling), even though this Court had previously indicated that this timeliness requirement is nonjurisdictional. See Briones v. Runyon, 101 F.3d 287, 290 (2d Cir. 1996) (noting that the requirement that an agency employee seek EEO counseling within a certain time after the allegedly discriminatory event "is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable tolling"); Downey v. Runyon, 160 F.3d 139, 145-46 (2d Cir. 1998) (same) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)), reh'g denied, 160 F.3d 146 (1999). The district court did hold, however, that, whatever the effect of these statutory time limits might be, a plaintiff's failure to exhaust her administrative remedies (i.e., by waiting either (a) 180 days from the time the EEOC was invoked or (b) for the EEOC to render a final judgment) before filing suit created an absolute jurisdictional bar. The appellees in their brief made this same assumption.

Were we to find that the requirement of exhaustion of administrative remedies was jurisdictional, we might well have to decide whether Boos had exhausted her remedies before we could move on to consider the alternative basis for the district court's judgment (i.e., the alleged lack of timeliness of Boos's request for EEO counseling). See Steel Co. v. Citizens for a Better Env't, 118 S. Ct. 1003, 1016 (1998) (mandating that constitutional jurisdictional issues be resolved before nonjurisdictional defenses can be addressed).³ But in fact it is anything but clear that failure to wait creates a jurisdictional bar. And we conclude, instead, that the exhaustion requirement, while weighty, is not jurisdictional.

There has in the past been some confusion about whether the failure of a plaintiff to allow an administrative action to run its course before filing a complaint in federal court affects the federal court's jurisdiction. Thus, in our opinion denying the petition for rehearing in Downey, we expressly stated that "[n]either exhaustion nor its timeliness is a matter of jurisdiction." Downey, 160 F.3d at 146. But there is also language in some of our cases suggesting that the failure to exhaust EEOC administrative requirements before filing suit does act as a jurisdictional bar. See, e.g., Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999) ("The federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charge.").⁴ And one circuit has so held. See Knopp v. Magaw, 9 F.3d 1478, 1479-80 (10th Cir. 1993) (finding that the district court lacked jurisdiction over a plaintiff's request for a preliminary injunction because the plaintiff had initiated an EEOC action but then sought the preliminary injunction in federal court prior to either the issuance of a final EEOC decision or the passage of 180 days from the date of his EEOC complaint).

Moreover, even though we have noted that the failure to comply with the timeliness requirement (i.e., filing late) is nonjurisdictional, see, e.g., Downey, 160 F.3d at 145 (finding...