969 F.3d 1113 (10th Cir. 2020), 19-1317, Hickey v. Brennan

Docket Nº:19-1317
Citation:969 F.3d 1113
Opinion Judge:EBEL, Circuit Judge.
Party Name:Lynda HICKEY, Plaintiff-Appellant, v. Megan J. BRENNAN, Postmaster General, United States Postal Service, Defendant-Appellee.
Attorney:Robert M. Liechty of Robert M. Liechty PC, Denver, Colorado, for Plaintiff-Appellant. Jason R. Dunn, United States Attorney, and Marissa R. Miller, Assistant United States Attorney, Denver, Colorado, for Defendant-Appellee.
Judge Panel:Before BRISCOE, EBEL, and LUCERO, Circuit Judges.
Case Date:August 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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969 F.3d 1113 (10th Cir. 2020)

Lynda HICKEY, Plaintiff-Appellant,


Megan J. BRENNAN, Postmaster General, United States Postal Service, Defendant-Appellee.

No. 19-1317

United States Court of Appeals, Tenth Circuit

August 14, 2020

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Submitted on the briefs:[*]

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:19-CV-00413-MEH)

Robert M. Liechty of Robert M. Liechty PC, Denver, Colorado, for Plaintiff-Appellant.

Jason R. Dunn, United States Attorney, and Marissa R. Miller, Assistant United States Attorney, Denver, Colorado, for Defendant-Appellee.

Before BRISCOE, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff Lynda Hickey, a former employee of the United States Postal Service ("USPS"), filed a discrimination complaint against Defendant Megan Brennan, the Postmaster General of the USPS, in her official capacity. Defendant filed a motion for summary judgment on the basis that Hickey had not properly exhausted her administrative remedies because she did not contact an Equal Employment Office ("EEO") counselor within forty-five days after her employment was terminated. The magistrate judge, exercising full jurisdiction with the consent of both parties, see 28 U.S.C. § 636(c)(1), granted Defendant's motion for summary judgment. For the reasons set forth below, we AFFIRM.


Hickey was employed as a letter carrier for the USPS. On September 30, 2017, she pushed one of her co-workers while they were both on the workroom floor. On October 20, 2017, the USPS issued Hickey a notice of removal from employment for

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"[u]nacceptable [c]onduct." Aplt. App. at 6. Six days later, on October 26, 2017, Hickey filed a grievance to challenge her removal pursuant to the procedures set forth in a collective bargaining agreement between the USPS and her union, the National Association of Letter Carriers. In her grievance, she alleged that the USPS's decision to terminate her employment was due to her supervisors' discriminatory animus and the agency's related failure to accommodate her disability of deafness. Hickey's removal became effective on December 5, 2017. The USPS and the union were not able to reach a resolution on the grievance, and it was submitted to an arbitrator on December 20, 2017. On May 3, 2018, the arbitrator denied the grievance, finding that the USPS had just cause for her removal.

On March 29, 2018, Hickey contacted an EEO counselor. A few months after that, she filed a formal EEO complaint of discrimination, which was dismissed by the agency on the ground that Hickey's arguments amounted to an inappropriate collateral attack on the union grievance procedure. Hickey appealed the final agency decision to the Equal Employment Opportunity Commission ("EEOC"), which upheld the agency's decision on November 23, 2018.

On February 14, 2019, Hickey initiated this federal action by filing a complaint alleging discrimination under the Rehabilitation Act, 29 U.S.C. § 794. The parties consented to having a magistrate judge exercise full jurisdiction over all matters in the case pursuant to 28 U.S.C. § 636(c)(1).

Defendant sought summary judgment based on Hickey's failure properly to exhaust her administrative remedies before the EEO, as she had failed to contact an EEO counselor within forty-five days of the adverse personnel action as required by 29 C.F.R. § 1614.105(a). In response, Hickey did not dispute that her contact with the EEO counselor was untimely, but she argued that Defendant should nonetheless be estopped from raising exhaustion as a defense because the EEO counselor failed to give her necessary advisements regarding the EEO process. Specifically, she argued that the EEO counselor should have informed her that (1) she could not pursue both an EEO complaint and a union grievance and, (2) because she had already begun the union grievance procedure, the proper course of action was to wait for the grievance to be resolved and then, if denied, appeal the denial of her grievance directly to the EEOC. The magistrate judge concluded that Hickey's argument was premised on a misreading of the pertinent regulations. He accordingly granted Defendant's motion for summary judgment based on Hickey's failure to timely exhaust her administrative remedies.

In her opening appellate brief, Hickey raised the same arguments she had relied on below. However, her reply brief concedes that postal employees are in fact permitted to pursue both an EEO complaint and a union grievance simultaneously. Nevertheless, she maintains that Defendant is still estopped from raising an exhaustion defense based on the EEO counselor's failure to give necessary advisements. She now contends the EEO counselor should have advised her both that (1) she could appeal the denial of her union grievance directly to the EEOC and, (2) although her EEO complaint was untimely because it should have been pursued simultaneously with the union grievance, she might be entitled to an extension of the time limit.

We affirm the magistrate judge's ruling because the arguments Hickey raises in her reply brief, even assuming they have not been waived or forfeited, are no more persuasive than the arguments in her

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opening brief. The pertinent regulations establish that she could not have appealed the denial of her union grievance to the EEOC, and thus the EEO counselor had no obligation to recommend this ineffective course of action to her. As for the issue of timeliness, the record reflects that the EEO counselor in fact told Hickey that there might be a problem with the timeliness of her EEO complaint. Moreover, Hickey does not argue, nor does the record indicate, that there was any valid reason why the agency should have granted an extension of time to excuse her untimely contact with the EEO counselor. Hickey's failure properly to exhaust her administrative remedies through timely contact with the EEO counselor thus warrants the entry of summary judgment in favor of Defendant.


"We review the district court's grant of summary judgment de novo, applying the same standards that the district court should have applied." Tesone v. Empire Mktg. Strategies, 942 F.3d 979, 994 (10th Cir. 2019) (internal quotation marks and brackets omitted). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

"Federal employees alleging discrimination or retaliation prohibited by Title VII or the Rehabilitation Act must comply with specific administrative complaint procedures in order to exhaust their administrative remedies." Showalter v. Weinstein, 233 Fed.Appx. 803, 804 (10th Cir. 2007). These procedures are set forth in Part 1614 of Chapter 29 of the Code of Federal Regulations. See id. Among other requirements, "[b]efore a federal civil servant can sue h[er] employer for [discrimination or retaliation], [s]he must ... `initiate contact' with an Equal Employment Opportunity counselor at h[er] agency `within 45 days of the date of the matter alleged to be discriminatory.'" Green v. Brennan, ___ U.S. ___, 136 S.Ct. 1769, 1774, 195 L.Ed.2d 44 (2016) (quoting 29 CFR § 1614.105(a)(1)). This regulatory exhaustion requirement is not a jurisdictional prerequisite for suit but is a claims-processing rule that the employer may raise as an affirmative defense. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) ("[A] plaintiff's failure to file an EEOC charge regarding a discrete employment incident merely permits the employer to raise an affirmative defense of failure to exhaust but does not bar a federal court from assuming jurisdiction over a claim."); Cirocco v. McMahon, 768 Fed.Appx. 854, 857 & n.2 (10th Cir. 2019) (clarifying that this principle applies to federal employers as well as private employers); see also Fort Bend Cty. v. Davis, ___ U.S. ___, 139 S.Ct. 1843, 1851, 204 L.Ed.2d 116 (2019) ("Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts."). It is accordingly subject to the same waiver and estoppel principles that govern other affirmative defenses. Lincoln, 900 F.3d at 1186 n.11. Because it is a mandatory rule, however, the court must enforce this exhaustion requirement if the employer properly raises it. See Davis, 139 S.Ct. at 1849-51. "[E]quitable doctrines such as tolling or estoppel... are to be applied sparingly," Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), because the "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants," Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,

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152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam).

Section 301 of 29 C.F.R. § 1614 describes how EEO complaints are processed for three categories of federal employees. First, employees who are both covered by a collective bargaining agreement and employed by executive agencies subject to 5 U.S.C. § 7121(d)1 — which notably does not apply to the USPS, see Burke v. U.S. Postal Serv., 888 F.2d 833, 834 (Fed. Cir. 1989)— must elect either to proceed with an EEO complaint or to engage in the union grievance process. 29 C.F.R. § 1614.301(a); see also 5 U.S.C. § 7121(d). If they choose to proceed with the union grievance process, then they may not proceed with the full EEO process, but they do have the right to appeal the...

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