874 F.2d 1092 (5th Cir. 1989), 88-1736, Irwin v. Veterans Admin.

Docket Nº:88-1736.
Citation:874 F.2d 1092
Party Name:Shirley W. IRWIN, Plaintiff-Appellant, v. VETERANS ADMINISTRATION, et al., Defendants-Appellees.
Case Date:June 13, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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874 F.2d 1092 (5th Cir. 1989)

Shirley W. IRWIN, Plaintiff-Appellant,

v.

VETERANS ADMINISTRATION, et al., Defendants-Appellees.

No. 88-1736.

United States Court of Appeals, Fifth Circuit

June 13, 1989

Jon R. Ker, Hewitt, Tex., for plaintiff-appellant.

Katherine L. Smith, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before ALDISERT, [*] REAVLEY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Veterans Administration Medical Center in Waco, Texas on April 17, 1986 fired Irwin, an employee. He contacted an Equal Employment Opportunity Counselor

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on June 12, 1986, and later filed a complaint with the Veterans Administration. The VA rejected Irwin's claim on the ground that he failed to contact an EEO Counselor within thirty days of the alleged discrimination. 1 Irwin appealed to the Equal Employment Opportunity Commission, which affirmed the VA's decision.

Notice of the EEOC decision was delivered to the office of Irwin's attorney, and an employee of the attorney signed a receipt for the letter on March 23, 1987. At the time, the attorney was in Korea with his United States Army Reserve unit. Irwin claims that he received notice of the EEOC decision on April 7, and the attorney asserts that he first actually learned of the decision on April 10. Irwin filed this suit on May 6. The district court dismissed Irwin's complaint, and this appeal ensued.

I

We are asked to identify the triggering event which starts the thirty-day time clock for filing a Title VII employment discrimination complaint against the federal government. The statute is of little assistance, providing only that a civil action may be filed "[w]ithin thirty days of receipt of notice of final action taken" by the employing agency or by the EEOC on the employee or applicant's administrative complaint. 2 But the statute does not define "receipt." The EEOC regulations are no more specific. 3 Though requiring the EEOC or employing agency to "notify an employee or applicant of his right to file a civil action, and of the 30-day time limit for filing," 4 the regulations take no position on the crucial question of whether receipt of a right-to-sue letter by an employee's attorney is notice to the employee of the administrative decision. The government suggests that the triggering event for the thirty-day time period is receipt of the EEOC right-to-sue letter by the claimant or by the office of the claimant's attorney, whichever occurs first. The district court agreed, finding it lacked jurisdiction over Irwin's Title VII claim because the complaint was filed more than thirty days after the right-to-sue letter arrived at Irwin's attorney's office. Irwin argues that the thirty-day period should not begin running until the claimant receives actual notice of his right to sue, or at least until the attorney has actual notice.

Our analysis begins with Ringgold v. National Maintenance Corp. 5 Ringgold involved a Title VII action against a private employer, with a ninety-day period for filing suit. 6 In that case, the attorney who filed Ringgold's administrative complaint subsequently left her two-attorney partnership. The EEOC right-to-sue letter arrived at the firm's office on October 6, and was signed for by a relative of the remaining partner. Because the remaining partner was out of town, neither attorney learned about the EEOC decision until October 10. The complaint was filed on January 6, ninety-two days after arrival of the right-to-sue letter. We held that the suit was not timely filed, concluding that "the 90-day period of limitation established by 42 U.S.C. Sec. 2000e-5(f)(1) begins to run on the date that the EEOC right-to-sue letter is delivered to the offices of formally designated counsel or to the claimant." 7

Irwin argues that we should not apply the constructive notice rule of Ringgold to his Title VII action against the federal government. He notes the longer period in which to file suit against a private employer. Further, while the ninety-day period of Sec. 2000e-5(f)(1) is subject to equitable tolling, 8 the thirty-day span allotted under Sec. 2000e-16(c) operates as an absolute jurisdictional limit. 9 In Irwin's view, constructive

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notice would add an unnecessary burden to a federal employee's Title VII rights.

Our task, of course, is to discern Congressional intent. Having found the constructive notice doctrine applicable under Sec. 2000e-5(f)(1) in Ringgold, we see no reason to believe Congress intended a different result in suits against the government than in suits against private employers. We have adopted a "system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' " 10 This basic policy choice is reflected in Fed.R.Civ.P. 5(b), making service of papers on a party's attorney the normal procedure. Congress enacted Sec. 2000e-16(c) against this background. We are persuaded that the sufficiency of notice to a person's lawyer is so ingrained that we should expect Congress to say so if it intends a different rule. Nor is the thirty-day time limit under this statute more burdensome than many other time limits within which attorneys must operate.

Irwin also relies on our decision in Cooper v. Lewis, 11 where we determined that notice to an attorney would not be imputed to the employee for purposes of a fifteen-day time period...

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