Everage v. Runyon
| Decision Date | 07 July 1993 |
| Docket Number | No. 92-3197,92-3197 |
| Citation | 998 F.2d 1016 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Johnnie EVERAGE, Plaintiff-Appellant, v. Marvin RUNYON, Postmaster General, ** Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before CUMMINGS, COFFEY and RIPPLE, Circuit Judges.
ORDERJohnnie Everage brought a complaint against the Postmaster General alleging discrimination on account of race and handicapping condition in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e, et seq., and the 1973 Rehabilitation Act, 29 U.S.C. § 791. The district judge gave summary judgment for the Postmaster General because Everage failed to contact an Equal Employment Opportunity counselor within thirty days, as required by 29 C.F.R. § 1613.214(a)(1)(i), and because Everage's illiteracy and ignorance of his legal rights provided no justification for tolling this time period. See Barrow v. New Orleans Steamship Ass'n, 932 F.2d 473, 478 (5th Cir.1991). After reviewing the record and the parties' briefs, we agree with the district judge's conclusion, and therefore AFFIRM his decision for the reasons stated in the attached order. We note additionally that Everage's brief fails to advance any legal argument regarding the propriety of the district judge's decision, and contains no citation to case authority, in noncompliance with Rule 28(a)(5) of the Federal Rules of Appellate Procedure. Fed.R.App.P. 28(a)(5); McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir.1984); Pelfresne v. Village of Williams Bay, 917 F.2d 1017, 1023 (7th Cir.1990).
ATTACHMENT
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
Johnnie Everage, Plaintiff,
v.
Anthony M. Frank, Postmaster General, U.S. Postal Service, Defendant.
July 13, 1992.
DECISION AND ORDER
Presently before this court is the defendant Postmaster General's October 5, 1990 motion for summary judgment. For the reasons below, this court grants the motion and dismisses this action.
Facts
Plaintiff Everage began working in the Postal Service's Milwaukee Division on January 7, 1984 (Def.'s Oct. 5 Mem. in Supp. of Mot. to Dismiss and/or Summ.Judg., Ex. C). On October 26, 1988, the Postal Service issued Everage a notice of proposed indefinite suspension (Id. Ex. B). The notice of proposed indefinite suspension charged Everage with (1) exaggerating the extent of an on-the-job injury for which Everage was attempting to claim disability compensation, and (2) falsifying his job application by failing to report an alleged arrest for lewd and lascivious behavior (Id.).
On October 29, 1988, attorney Thomas J. Flanagan ("Flanagan"), purporting to represent Everage in his effort to clear his record of the arrest for lewd and lascivious behavior, wrote the Milwaukee Police Department to request information regarding the arrest. The record does not reflect that Flanagan undertook any other actions on Everage's behalf.
On December 28, 1988, the Postal Service issued Everage a notice of proposed removal advising him that he would be discharged within thirty days for the same reasons listed in the notice of proposed indefinite suspension . On February 28, 1989, the Postal Service discharged Everage (Id. Ex. G at 1).
Everage challenged his discharge and suspension through the grievance-arbitration procedure contained in his union's collective bargaining agreement (See id. Ex. D (Dec. 13, 1989 Arbitration Award)). Everage's grievance proceeded to arbitration, and on December 13, 1989, an arbitrator denied the grievance, thereby upholding the suspension and discharge (Id.).
On May 4, 1990, Everage appealed the arbitrator's decision to the Merit Systems Protection Board ("MSPB"). On July 5, 1990, the MSPB dismissed Everage's appeal as untimely (Id. Ex. E (Jul. 5, 1990 MSPB Order)). The Federal Circuit Court of Appeals affirmed the MSPB's decision dismissing Everage's union grievance, reasoning that Everage had not justified his untimely appeal to the MSPB. The court of appeals noted that Everage had been informed of the deadline for appealing his discharge to the MSPB and that Everage's sixth-grade reading level did not excuse his noncompliance with the MSPB appeal deadline. Everage v. United States Postal Service, No. 91-3133, slip op. at 2 (Fed.Cir. Jun. 14, 1991).
On January 9, 1990, over ten months after his February 28, 1989 discharge, Everage contacted an EEO counselor regarding his complaint of discrimination; on June 20, 1990, the EEOC dismissed his complaint as untimely and issued Everage a right-to-sue letter (Id.).
On July 13, 1990, Everage commenced this action against the Postal Service and Postmaster General (collectively, "Postmaster General"), alleging that he was discharged because of his race and alleged physical handicap (Compl. p 1). On July 26, 1990, this court permitted Everage to proceed in forma pauperis.
On October 5, 1990, the Postmaster General filed the instant motion for summary judgment. The Postmaster General argues that Title VII of the Civil Rights Act of 1964, 42 United States Code § 2000e et seq., and the Rehabilitation Act, 29 U.S.C. § 291, provide the only remedies for Everage's complaint of employment discrimination as a federal employee, and that Everage's claims under these statutes must be dismissed because he failed to contact an Equal Employment Opportunities ("EEO") counselor within the thirty-day limit established in 29 C.F.R. § 1613.214. On November 7, 1991, Everage filed affidavits attesting to his fourth-to-fifth grade reading skills and his ignorance of thirty-day time limit for filing a complaint of discrimination with the EEOC.
On May 9, 1992, this court relieved attorney Robert Sutton of any further duties to represent Everage and denied without prejudice Everage's motion for appointment of new counsel (May 9, 1992 Order on Pending Non-Dispositive Motions at 5-6). This court also advised the parties that it would treat the Postmaster General's motion as one for summary judgment, permitted Everage to file an additional brief and affidavit(s) in opposition to that motion, and invited the Postmaster General to file an additional brief and affidavit in support of the motion (Id. at 6-7). Both Everage and the Postmaster General subsequently filed such materials.
Analysis
The sole issue presently before the court is whether Everage has offered a legally sufficient excuse for his failure to contact an EEO counselor in a timely fashion. This court concludes that he has not, and it therefore dismisses his case.
This court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions, and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Trautvetter v. Quick, 916 F.2d 1140, 1147 (7th Cir.1990). The party moving for summary judgment has the burden of proving that no genuine dispute of material fact exists for trial, Hannon v. Turnage, 892 F.2d 653, 656 (7th Cir.1990), and this court must draw all reasonable inferences from the record in favor of the non-moving party. Johnson v. Pelker, 891 F.2d 136, 138 (7th Cir.1989). The factual record on summary judgment consists only of sworn testimony based upon personal knowledge; conclusory allegations, whether contained in pleadings or set forth in affidavits, are excluded. Fed.R.Civ.P. 56(e); Fed.R.Evid. 602; Koclanakis v. Merrimack Mut. Fire Ins. Co., 899 F.2d 673, 675 (7th Cir.1990). In order to preclude entry of summary judgment, an issue of fact must be "material," i.e., one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Everage alleges that the Postal Service discriminated against him because of his race and alleged physical handicap. Everage's only remedies for his claims are the Rehabilitation Act, Title 29 United States Code § 791, and Title VII of the Civil Rights Act of 1964. Brown v. General Services Administration, 425 U.S. 820, 826 (1976) (). Claims brought under the Rehabilitation Act are subject to the same administrative time limits governing Title VII actions. McGuinness v. United States Postal Service, 744 F.2d 1318, 1320 (7th Cir.1984); Barrett v. Frank, 776 F.Supp. 1312, 1314 (N.D.Ill.1991).
Before filing a Title VII action in federal court, a federal employee must comply with three separate administrative time limits. Rennie v. Garrett, 896 F.2d 1057, 1059 (7th Cir.1990). At issue here is the time limit that requires the federal employee to bring an employment discrimination complaint to the attention of an EEO counselor within thirty days of the effective date of the allegedly discriminatory personnel action. 29 C.F.R. § 1613.214(a)(1)(i). 1 This time limit for contacting an EEO counselor is not jurisdictional, but is instead akin to a statute of limitations and is subject to equitable tolling. Rennie, 896 F.2d at 1062. Therefore, where the plaintiff has failed to contact the EEO counselor in a timely fashion, he must be given the opportunity to raise equitable arguments, such as tolling, waiver, and estoppel, that might excuse his failure to comply with the time limitation. Id. Should the plaintiff fail to justify his tolling the limitations period, his case must be dismissed. Barrett, 776 F.Supp. at 1314.
Administrate time limits may be tolled on equity grounds only under extraordinary circumstances, as where the employer has actively misled...
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