McFarland v. Henderson

• Decision Date: 03 October 2002
• Docket Number: No. 01-3517.,01-3517.
• Citation: 307 F.3d 402
• Parties: Jamie L. McFARLAND, Plaintiff-Appellant, v. William J. HENDERSON, United States Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 402

307 F.3d 402

Jamie L. McFARLAND, Plaintiff-Appellant, v. William J. HENDERSON, United States Postmaster General, Defendant-Appellee.

No. 01-3517.

United States Court of Appeals, Sixth Circuit.

Submitted: September 20, 2002.

Decided and Filed: October 3, 2002.

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Harland M. Britz (briefed), Britz & Zemmelman, Toledo, OH, for Plaintiff-Appellant.

Kathleen Moro Nesi (briefed), Assistant United States Attorney, Detroit, MI, for Defendant-Appellee.

Before DAUGHTREY, GILMAN, and JOHN R. GIBSON, Circuit Judges.^*

OPINION

GILMAN, Circuit Judge.

Jamie L. McFarland brought suit against William J. Henderson, the United States Postmaster General, alleging that she was constructively discharged from her employment as a result of sex discrimination, in violation of Title VII of the Civil Rights Act of 1964. The district court granted summary judgment in favor of the Postal Service on the ground that McFarland had not timely initiated a grievance with the Equal Employment Opportunity Commission (EEOC) as required by law, and that no doctrine of equity excused that failure. McFarland now appeals. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

In March of 1999, McFarland began working for the United States Postal Service in Toledo, Ohio as a casual mail handler. Her "casual" status meant that she was a temporary employee who did not receive extensive orientation or union representation. McFarland alleges that on March 28 of that year, Robert Geronimo, her acting supervisor at the time, attempted to kiss her. Although McFarland pulled away, Geronimo proceeded to say that he thought about her neck and lips while he exercized. Two days after the attempted kiss, McFarland felt that Geronimo was being rude to her. She then told Geronimo directly that she had no interest in him.

McFarland learned in April or early May of 1999 that unfounded rumors were being spread that she was sleeping with other male postal employees, that she gave Geronimo an "attitude" when he asked her to do things, and that she was talking to male employees instead of working. She believed that Geronimo was the source of these rumors. Approximately five weeks after the attempted kiss, McFarland spoke to Barbara Petrusky about her problems with Geronimo. Petrusky supervised both Geronimo and McFarland. McFarland complained that Geronimo was "in love with her," and that he unfairly made her operate a linear integrated parcel sorter (LIPS) machine more frequently than the other casual workers.

Petrusky told McFarland that she would speak to Geronimo about the matter. When Petrusky confronted Geronimo, he denied that he had either attempted to kiss McFarland or that he had spread rumors about her. He also agreed with Petrusky that sexual harassment is a serious issue. Petrusky, Plant Manager Randy Carter, and Kenneth Durden, another manager, each told McFarland that they had spoken to Geronimo about his behavior, and that he had assured them that he would "treat her professionally."

Sometime in June of 1999, Geronimo allegedly permitted a magazine to fall on McFarland's hand by failing to tell another employee to stop "keying" on a machine. McFarland also alleges that, throughout her employment, Geronimo refused to allow her to work during the lunch break as other casual employees were allowed to do in order to earn extra pay.

Monica Lewis, a coworker, confronted McFarland on June 22, 1999, telling McFarland that she had heard from Geronimo that McFarland had spread innuendos regarding Lewis and Eddie Robert, a union representative. McFarland then spoke a second time to Petrusky "because Robert Geronimo was causing me problems again." Petrusky responded by informing McFarland that Petrusky had heard from Lewis that McFarland was spreading rumors about Petrusky sleeping with two men at the Post Office. McFarland attributed all of these false rumors to Geronimo.

The next day, on June 23, 1999, McFarland contacted an EEO Counselor about her problems with Geronimo. This was nearly 90 days after Geronimo had tried to kiss her. McFarland claims that she was unaware that she was required to contact the EEOC within 45 days of an act of discrimination. In support of her claim that she was unaware of the time limit, she submitted the affidavit of John Harvey, a maintenance director and union steward, who claimed that "in 1999, there were no notices or information posters `posted' that informed `casuals' about EEO complaint time limit requirements." Although the Postal Service disputes her alleged lack of notice, we are obligated to construe all facts and inferences in favor of the nonmoving party in reviewing the grant of a motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

McFarland left her position as a casual mail handler in July of 1999. The Postal Service attributes this decision to the fact that she had been warned in June and July that her excessive absenteeism meant that any additional absences would result in the loss of her job. McFarland, on the other hand, claims that she was constructively discharged due to a hostile work environment created by Geronimo's sexual harassment.

A formal complaint was filed by McFarland with the EEOC in August of 1999. Based upon her complaint, the EEOC began an official investigation two months later. When the investigation was not completed within 180 days of its acceptance, McFarland filed the present suit, alleging that she had been discriminated against on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The Postal Service moved to dismiss McFarland's action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. It argued that dismissal was proper because McFarland had failed to contact the EEOC within 45 days of the alleged acts of discrimination as she was required to do in order to sue the federal government pursuant to Title VII. 29 C.F.R. § 1614.105(a)(1).

In her Memorandum in Opposition, McFarland conceded that her EEOC grievance had not been timely initiated. She argued, however, that "equity mandates that this Court hear her action," and asked "that the Court exercise its discretion and find that principles of tolling waiver, and/or estoppel allow the case to be heard." The parties submitted affidavits to support their arguments as to waiver, estoppel, and tolling. As a result, the district court treated the Postal Service's motion to dismiss as a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

The district court issued a Memorandum and Opinion in March of 2001 that rebuffed McFarland's equitable arguments, and granted summary judgment to the Postal Service without reaching the substantive merits of her discrimination claim. On appeal, McFarland challenges the district court's conclusions regarding estoppel and equitable tolling, and contends for the first time that her EEOC claim was timely filed because she was subjected to "a continuing violation."

II. ANALYSIS

A. The 45-day time limit

In permitting federal employees to sue under Title VII, Congress conditioned the government's waiver of sovereign immunity upon a plaintiff's satisfaction of "rigorous administrative exhaustion requirements and time limitations." Brown v. Gen. Servs. Admin., 425 U.S. 820, 833, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). The requirement at issue in the present case is that "[an] aggrieved person must initiate contact with a[n][EEO] Counselor within 45 days of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). Because exhaustion requirements pursuant to Title VII are not jurisdictional prerequisites, they are subject to waiver, estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).

B. The nature of McFarland's claim

In her Memorandum in Opposition to the Postal Service's motion to dismiss, McFarland conceded that her EEOC grievance was not timely initiated:

Despite the fact that Plaintiff failed to comply with a 45-day time requirement for initiating EEO counseling, equitable principles of tolling, waiver, and estoppel mandate that Plaintiff's claims should survive and Plaintiff should have her day in court.

Given this concession, it is entirely understandable why the district court failed to address whether McFarland's grievance was in fact initiated within 45 days of the alleged discrimination. The court instead focused solely upon McFarland's equitable arguments. In light of the fact that "both McFarland and the Postal Service have seen fit to submit documents and affidavits in support of their positions with respect to McFarland's ability to bring her case despite having missed the EEO filing deadline," the district court also found it appropriate to "consider the motion to dismiss as if it were a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure."

With new counsel on appeal, McFarland now argues, contrary to her concession in the district court, that her EEOC grievance was timely initiated because she suffered from "a continuing violation" that was ongoing less than 45 days prior to June 23, 1999, the day that McFarland first contacted an EEO Counselor. A continuing violation exists where the plaintiff suffers from either (1) a series of discrete discriminatory acts that are anchored by at least one such act within the limitations period, or (2) where there has occurred a "longstanding and demonstrable... over-arching policy of discrimination." Dixon v. Anderson, 928 F.2d 212, 216-17 (6th Cir.1991). This court has "long recognized that an ongoing,...