Arnold v. U.S.

• Decision Date: 05 May 1987
• Docket Number: No. 85-5993,85-5993
• Parties: 43 Fair Empl.Prac.Cas. 1256, 43 Empl. Prac. Dec. P 37,073 Joanna R. ARNOLD, Plaintiff-Appellant, v. UNITED STATES of America, United States Postal Service and Orvene Carpenter, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1306

816 F.2d 1306

43 Fair Empl.Prac.Cas. 1256,

43 Empl. Prac. Dec. P 37,073

Joanna R. ARNOLD, Plaintiff-Appellant, v. UNITED STATES of America, United States Postal Service and Orvene Carpenter, Defendants-Appellees.

No. 85-5993.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1986.

Decided May 5, 1987.

Janet M. Koehn and Douglas Stenzel, Ventura, Cal., for plaintiff-appellant.

Gerald J. Robinson, Washington, D.C., Stephen E. O'Neill, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before HUG, FLETCHER and BOOCHEVER, Circuit Judges.

FLETCHER, Circuit Judge:

The district court dismissed Joanna Arnold's claims of sex discrimination and harassment against Postmaster Orvene Carpenter, the United States of America, and the United States Postal Service (USPS) on three grounds: (1) a USPS decision reinstating Arnold with backpay, benefits, and seniority mooted her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982); (2) the court lacked subject matter jurisdiction to hear claims against the United States and the USPS because the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(h), explicitly excludes intentional torts; and (3) Postmaster Carpenter is absolutely immune from liability because the acts Arnold alleges he performed were acts within the perimeter of his duty.

Arnold challenges the first and third grounds. She contends that the USPS decision did not compensate her for harms suffered prior to September 4, 1982, the effective date of her reinstatement. She also contends that her complaint states a Bivens cause of action against Carpenter and that Carpenter is not entitled to absolute immunity from her state-law tort claims. Defendants-appellees raise for the first time on appeal that this court lacks subject matter jurisdiction because Arnold failed to file her complaint in district court in a timely fashion.

We affirm in part and reverse in part.

FACTS

On April 7, 1981, Joanna Arnold was hired by the United States Postal Service (USPS) as a machine distribution clerk in the Oxnard, California, post office. During the summer of 1981, Arnold passed an examination for mailhandlers. She met with Postmaster Orvene Carpenter, in his office, on September 23, 1981, to request a transfer.

Arnold alleges that Carpenter told her that the position of mailhandler was a "man's" job and that he would not put any woman, especially Arnold, into the position. She further alleges that he then placed his chair directly in front of her and fondled her knees. When Arnold attempted to leave, Carpenter blocked the door preventing her from leaving. Carpenter then held Arnold close to his body, kissing and fondling her. Arnold states that Carpenter continued to make sexual advances and harass her after the September 23, 1981, incident. Carpenter denies the allegations.

On October 8, 1981, Arnold was told she was to be removed effective November 10, 1981. She submitted her resignation on October 16, 1981. On October 21, 1981, the Oxnard Post Office hired a new mailhandler, who was male.

On October 22, 1981, Arnold sought counseling from the district Equal Employment Opportunity (EEO) Specialist for harassment by the Postmaster. On November 12, 1981, she again sought counseling for discrimination based on the refusal to transfer her, and she asked at that time to withdraw her resignation. The complaints were informally resolved on December 10, 1981. Arnold agreed to withdraw the charges in exchange for which she would have "first consideration" for a mailhandler position at the Oxnard Post Office Arnold alleges that Carpenter continued to harass her after the December 10, 1981, settlement. On January 21, 1982, Arnold was notified she would be removed on February 20, 1982, and was so removed, because she failed to learn a particular scheme assignment. However, an Equal Employment Opportunity Commission Report (the Tilman Report) found that "the agency could articulate no legitimate business reason" for requiring Arnold to learn the scheme.

when the next position became available. Arnold returned to work and was promoted within her clerk position five days later.

In August 1982 a male was appointed to a position as mailhandler, effective September 4, 1982. Arnold contends that she was not given first consideration as was required by the settlement agreement.

Arnold filed a formal complaint and request for investigation with the EEO officer on September 7, 1982. The complaint included charges of sex discrimination and harassment from September 23, 1981, the date of the first office meeting with the Postmaster, through February 1982 when she was terminated from her job. She also alleged that she was passed over in August 1982 for the position of mailhandler in reprisal for her earlier complaints. The USPS rejected Arnold's claim because she failed to formalize it within fifteen days of receiving her Notice of Final Interview pursuant to 29 C.F.R. Sec. 1613.214(a)(1)(ii)(1986). Arnold appealed to the Office of Review and Appeals of the EEOC, which issued its opinion on September 19, 1983 (the Rozzi Decision).

The Rozzi Decision consists of two seemingly inconsistent prongs. First, the decision concluded that Arnold failed to show why the USPS's stated reason for its refusal to select her as mailhandler was pretextual. Because the agency acted in good faith in denying Arnold the position, it did not breach the settlement and, because of the settlement, Arnold could not pursue her original claims of sex discrimination and harassment. Nonetheless, the Rozzi Decision remanded to the USPS the issue of whether the USPS acted in reprisal for Arnold's complaints in denying her the mailhandler position. ¹ How the USPS could act both in good faith and in reprisal is unclear. The Rozzi Decision did not address the fifteen-day requirement, which had been the basis for the USPS's denial of Arnold's claim. ²

Arnold appealed the Rozzi Decision to the United States District Court on November 7, 1983. Her complaint alleges sexual harassment and common law torts based on the September 23, 1981, incident with Postmaster Carpenter and wrongful discharge in February 1982 in retaliation for her prior complaints.

Simultaneously, Arnold pursued her administrative claim of retaliation based on the USPS's refusal to hire her as a mailhandler on September 4, 1982. In her October 17, 1984 report, the Attorney-Examiner concluded that the USPS's refusal to hire Arnold as a mailhandler on September 4, 1982, was in reprisal for Arnold's previous complaints (Tilman Report). The Tilman Report recommended that Arnold be instated to the position of mailhandler as of September 4, 1982, and awarded retroactive backpay, seniority and other benefits to which she would have been entitled from that date forward. The USPS accepted the Tilman Report's recommendation as its final agency decision. Neither party has appealed the USPS's action based on Arnold's retaliation claim.

DISCUSSION

I. Title VII

A. Mootness

The district court held that the agency action rendered Arnold's appeal of the Rozzi Decision moot. A claim is moot "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 1481 (1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969))). The burden to demonstrate mootness is heavy. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). We review a district court's determination of mootness de novo. Sample v. Johnson, 771 F.2d 1335, 1338 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1206, 89 L.Ed.2d 319 (1986).

The district court found that Arnold could not benefit from a favorable outcome to the lawsuit because the USPS's action in instating Arnold compensated her for its prior retaliatory refusal to hire her as a mailhandler. The court, however, overlooked the fact that Arnold's claims commence with acts dating from September 23, 1981, while the USPS's award compensates Arnold only from September 4, 1982, forward. The district court's order ignores possible recompense for the allegedly discriminatory practices during these twelve months.

The incidents from September 23, 1981, until September 4, 1982, fall into two categories: first, the incidents giving rise to Arnold's November 1981 complaints, which were withdrawn following the settlement of December 10, 1981, and, second, Arnold's removal on February 20, 1982.

1. With regard to the first category, the district court suggested during a hearing, and the USPS has argued to this court, that by withdrawing her claims in December 1981, Arnold waived her right to pursue them. Normally if a party enters into a settlement agreement knowingly and voluntarily, the agreement is treated as a binding contract and the party is precluded from raising the underlying claims. Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15, 94 S.Ct. 1011, 1021 n. 15, 39 L.Ed.2d 147 (1974); Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1352 (11th Cir.1983). However, if one party breaches a settlement, the other has the option of enforcing the terms of the settlement or rescinding the settlement and suing on the original claims. Village of Kaktovik v. Watt, 689 F.2d 222, 230-31 (D.C.Cir.1982). Our court has assumed, for example, that the government could reinstate its case against a defendant if the defendant breached a settlement agreement. See United States v. Sparks, 685 F.2d 1128 (9th Cir.1982) ³; see also VanLeeuwen v. Farm Credit Admin., 600 F.Supp. 1161, 1164 (D.Ore.1984).

Arnold claims that the USPS breached the settlement by refusing her...