314 F.3d 409 (9th Cir. 2002), 01-16994, Johnson v. Henderson

Docket Nº:01-16994.
Citation:314 F.3d 409
Party Name:Betty JOHNSON, Plaintiff-Appellant, v. William J. HENDERSON, U.S. Postmaster General, Defendant-Appellee.
Case Date:December 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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314 F.3d 409 (9th Cir. 2002)

Betty JOHNSON, Plaintiff-Appellant,


William J. HENDERSON, U.S. Postmaster General, Defendant-Appellee.

No. 01-16994.

United States Court of Appeals, Ninth Circuit

December 26, 2002

Argued and Submitted Nov. 8, 2002

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Eugene T. Franklin, Law Offices of Eugene T. Franklin, Hayward, CA, for the plaintiff-appellant.

Alex G. Tse, Assistant United States Attorney, San Francisco, CA, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Elizabeth D. Laporte, Magistrate, Presiding. D.C. No. CV-00-04618-EDL.

Before B. FLETCHER, ARNOLD,[*] and RAWLINSON, Circuit Judges.


BETTY B. FLETCHER, Circuit Judge.

Plaintiff-appellant Betty Johnson ("Johnson") sued her employer, the United States Postal Service ("USPS"), claiming that she and her coworkers were sexually harassed on the job. USPS moved for summary judgment on the ground that, inter alia, Johnson had failed to exhaust her administrative remedies before suing in federal court because she had failed to comply with two administrative filing deadlines. Johnson maintained that the

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doctrines of equitable tolling and equitable estoppel should be applied to excuse her late filings. The district court found that Johnson's administrative filings were not timely and that neither equitable tolling nor equitable estoppel applied, and granted summary judgment to USPS. Johnson now appeals that award of summary judgment, arguing that the district court erred in refusing to apply equitable tolling and/or equitable estoppel to her administrative claims. We have jurisdiction under 28 U.S.C. § 1291, and we now affirm.


Viewed in the light most favorable to Johnson, as required on summary judgment, Oliver v. Keller, 289 F.3d 623, 626 (9th Cir. 2002), the record reveals the following facts. From November 1997 through January 2000, Johnson was employed by the USPS as a full-time casual mail handler at its Processing and Distribution Center in Oakland, CA. Johnson alleges that, during the entire course of her employment, she and other coworkers were subjected to verbal and physical sexual harassment by male employees. She claims that she complained to her supervisors on a weekly basis about the harassment, but that no corrective action was ever taken. According to Johnson, one supervisor, Yvonne Davis, informed her that she would "be the first one out of here" if she continued to complain, and that as a "casual" employee she had fewer rights than "regular" employees. Finally, Johnson requested a transfer, but that request was denied. Shortly thereafter, in January 2000, Johnson was terminated.

The parties have different accounts of the extent to which Johnson and her coworkers were informed about EEO procedures. Johnson maintains that she never attended any training session on the subject of complaint procedures for sexual harassment, was never told about the USPS's EEO Department, and never saw any posters regarding EEO complaint procedures in her workplace. However, the USPS's investigation indicated that EEO posters were found on display throughout the Oakland facility, and the USPS maintains that all new USPS employees are required to attend an orientation in which they are instructed on, inter alia, "where and how to file a complaint of discrimination or harassment in the Postal Service." Moreover, according to USPS, all new employees are given a Learner's Workbook on Orientation for New Employees, which contains a time-line in the form of a chart setting out the requirements and time limits for processing an EEO complaint.

Johnson first requested EEO counseling on June 19, 2000. In response, USPS sent Johnson the required forms via certified mail on June 20, 2000; she received the forms at her residence on June 21, 2000. Johnson completed the EEO Request for Counseling on June 24, 2000, and returned it to USPS on June 26, 2000, along with a signed acknowledgment that she had received "What You Need to Know About EEO: An Informative Booklet." In her Request for Counseling, Johnson listed August 8, 1999 as the date on which the harassing conduct occurred.

By this time, Johnson had retained counsel to represent her in this matter. In her deposition, Johnson testified that she did not recall exactly when she hired her lawyer, but she acknowledged that he was representing her at least as of June 24, 2000, when she listed him as her attorney on her EEO Request for Counseling.

USPS maintains that it sent Johnson a response letter via certified mail on August 3, 2000, informing her of her right to file an individual complaint within 15 days of receipt of the letter. The cover letter was dated August 3, 2000, but the enclosed

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Notice of Right to File Individual Complaint was hand-dated "9-3-00." The certified mail receipt reflects that an individual at Johnson's residence named "Katie" acknowledged receipt of the letter on August 4, 2000.1 Johnson, however, maintains that she does not recall receiving the letter until September 2000.

Johnson then filed a formal EEO Complaint of Discrimination with USPS on September 8, 2000, in which she alleged that the harassment at issue took place on October 10-12, 1999. On September 14, 2000, USPS issued a Final Agency Decision rejecting Johnson's complaint on two grounds: The complaint had been filed after the fifteen-day time limit had passed, and Johnson had first sought informal EEO counseling after the forty-five-day time limit had passed. Johnson then filed the present suit in federal district court on December 8, 2000.

On June 5, 2001, USPS moved for summary judgment. The magistrate judge2 who was presiding over the case granted USPS's motion in an order dated September 14, 2001. The magistrate judge found that Johnson had failed to exhaust her administrative remedies within the time limits required for federal employees pursuing EEO complaints. See 29 C.F.R. §§ 1614.105(a) ("Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must ... initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory"), 1614.106 ("A complaint must be filed within 15 days of receipt" of the right to file letter). The magistrate judge acknowledged that, as the Supreme Court held in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the equitable doctrines of waiver, equitable estoppel, and equitable tolling apply to the administrative exhaustion requirements at issue here. Johnson v. Henderson, 2001 WL 1112116, slip op. at 5 (N.D.Cal. Sep.14, 2001). However, she found that none of these doctrines were applicable to Johnson's case.

With regard to Johnson's failure to seek EEO counseling within 45 days of the alleged act of harassment, the magistrate judge held that Johnson's weekly complaints to her supervisors under USPS's Zero-Tolerance Policy did not obviate the requirement that she raise her claim with an EEO counselor. Slip op. at 6. The magistrate judge also found that neither equitable tolling nor equitable estoppel applied: Johnson had, at the very least, constructive notice of the EEO procedures based on the posters displayed around the Oakland branch of the USPS, and there was no evidence in the record suggesting that USPS had pursued its Zero-Tolerance Policy in order to deceive employees into thinking that they were not required to follow other EEO procedures, or that USPS knew or should have known that employees might be so deceived.

As to Johnson's failure to file her formal complaint within fifteen days of the conclusion of pre-complaint processing, the magistrate judge also found that no genuine issue of material fact remained. Despite the handwritten date of September 3, 2000 on the Notice of Right to File Individual Complaint, the cover letter was dated August 3, 2000, and the return receipt form indicated that the certified mail was received by "Katie" on August 4, 2000. The

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magistrate judge ruled that the handwritten date on the Notice was in all likelihood a transcription error, in light of the extrinsic evidence attesting to the Notice's delivery on August 4--and, moreover, that there was a presumption in favor of delivery of letters that were properly addressed, stamped, and mailed, particularly when the letter had been sent via certified mail. Slip op. at 12-13 (citing C. McCormick, McCormick on Evidence § 343 (5th ed.1999), and Federal Deposit Ins. Corp. v. Schaffer, 731 F.2d 1134, 1137 (4th Cir. 1984)); cf. id. at 15 (citing Scholar v. Pac. Bell, 963 F.2d 264, 266 (9th Cir. 1992) (holding that limitations period begins to run on date notice was received at claimant's residence, even if claimant did not receive it until a later date)). Here, the magistrate judge pointed out, Johnson offered no evidence to rebut this presumption--such as, for example, a declaration from "Katie" indicating whether she signed the receipt and what she had done with the letter. Moreover, neither equitable estoppel nor equitable tolling could be applied to this claim: Johnson was represented by counsel3 at least as of June 24, 2000, which rendered equitable tolling unavailable under Leorna v. United States Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997), and she had presented no evidence of improper motive on USPS's part in dating the Notice "9-3-00" that would have sustained a claim for equitable estoppel.

Accordingly, the magistrate judge held that Johnson had failed to exhaust her administrative remedies, a prerequisite to filing suit in federal court. Because neither equitable estoppel nor equitable tolling applied to excuse...

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