Bayer v. U.S. Dept. of Treasury

• Decision Date: 21 February 1992
• Docket Number: No. 90-5393,90-5393
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 162, 58 Empl. Prac. Dec. P 41,290, 294 U.S.App.D.C. 44, 21 Fed.R.Serv.3d 1339 Michael D. BAYER, Appellant, v. UNITED STATES DEPARTMENT OF the TREASURY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 330

956 F.2d 330

58 Fair Empl.Prac.Cas. (BNA) 162,

58 Empl. Prac. Dec. P 41,290, 294 U.S.App.D.C. 44,

21 Fed.R.Serv.3d 1339

Michael D. BAYER, Appellant, v. UNITED STATES DEPARTMENT OF the TREASURY, Appellee.

No. 90-5393.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 27, 1992.

Decided Feb. 21, 1992.

Appeal from the United States District Court for the District of Columbia.

Paul R.Q. Wolfson, Coral Gables, Fla., with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant. Michael D. Bayer, pro se, also entered an appearance for appellant.

William J. Dempster, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates, and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, RUTH BADER GINSBURG and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

Michael D. Bayer appeals from an order granting summary judgment to the Department of the Treasury ("Treasury" or "Department") in an action alleging employment discrimination based on religion in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 ("Title VII"). Treasury had sought dismissal on the ground that Bayer, formerly employed as a tax law specialist at the Internal Revenue Service ("IRS" or "Service"), failed to contact an Equal Employment Opportunity ("EEO") counselor within thirty days of the alleged discriminatory act, as required by 29 C.F.R. § 1613.214(a)(1)(i). Because Bayer's contention that he was unaware of the thirty-day requirement raises a genuine issue of material fact, see 29 C.F.R. § 1613.214(a)(4), we reverse the district court's summary disposition and remand for further proceedings.

I.

In April 1984, Bayer began working in the Employee Plans, Rulings and Qualifications Section of the IRS as a one-year probationary tax law specialist. In December of that year, Bayer received an unsatisfactory evaluation, which contrasted with prior, at least satisfactory, ratings he had received in earlier employment with the Service. Several weeks later, in February 1985, the Service gave Bayer the opportunity to resign, and thereby avoid termination for unsatisfactory performance. This opportunity was offered, Bayer asserts, after the intervention of Warren Joseph, Chief Steward for Chapter 65 of the National Treasury Employees Union ("NTEU"). Bayer had consulted Joseph when Bayer first learned of the decision requiring him to leave his job at the IRS. Through informal negotiation, Joseph worked out an arrangement with the IRS for Bayer's resignation with a favorable reference. During this period, Joseph had advised Bayer not to file a discrimination complaint because that action might hinder the informal arrangement and imperil the favorable reference.

On March 15, 1985, Bayer resigned from the IRS. After leaving the Service, Bayer applied unsuccessfully for various public and private sector positions. His last attempt to gain federal employment failed, he recounts, in February or March of 1986, when the IRS rejected his application for a paralegal position.

On July 18, 1986, sixteen months after he resigned from the IRS, and over 120 days after he was last rejected for employment by the Service, Bayer contacted an EEO counselor. Bayer filed a formal complaint with Treasury on October 28, 1986, fourteen days after his last interview with the EEO counselor. See 29 C.F.R. § 1613.214(a)(1)(ii) (allowing fifteen days for the filing). Bayer's complaint charged that religion-based discrimination caused his poor evaluation, "constructive termination," and non-selection for the IRS jobs he sought after his March 1985 resignation. On December 2, 1986, Treasury's Regional Complaints Center Director rejected Bayer's complaint as untimely. The letter reporting the Director's final decision stated as the reason for the rejection Bayer's "fail[ure] to contact an EEO Counselor within 30 days of the date of the matter alleged to have been discriminatory," see 29 C.F.R. § 1613.214(a)(1)(i), and his failure to "indicate that [he was] unaware of the time limit." See 29 C.F.R. § 1613.214(a)(4) (time limit shall be extended when complainant was neither notified nor otherwise aware of limit).

Bayer promptly appealed Treasury's final decision to the Equal Employment Opportunity Commission ("EEOC"). On August 6, 1987, the EEOC affirmed the agency's decision to reject Bayer's complaint for failure to seek EEO counseling within the thirty-day period specified in 29 C.F.R. § 1613.214(a)(1)(i). The Director of the EEOC's Office of Review and Appeals stated that Bayer's awareness of the time limit could be inferred from his argument that fear of an adverse impact on his final evaluation, and on the deferral of his termination, deterred him from filing a complaint. EEOC Decision at 1.

On September 8, 1987, Bayer, then proceeding pro se, filed the instant action in district court. In his court complaint, Bayer alleged that Treasury had discriminated against him on the basis of religion in contravention of Title VII. Bayer sought de novo review of the merits of his EEO complaint. On September 27, 1990, the district court granted Treasury's motion for summary judgment; the court's spare order gave no explanation for the decision.

II.

Prior to instituting a court action under Title VII, a plaintiff alleging discrimination in federal employment must proceed before the agency charged with discrimination. 42 U.S.C. § 2000e-16(c). This administrative remedies exhaustion requirement is mandatory. Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976); Kizas v. Webster, 707 F.2d 524, 543 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984). A formal complaint may be lodged with an agency once the complainant has

brought to the attention of the Equal Employment Opportunity counselor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.

29 C.F.R. § 1613.214(a)(1)(i). This thirty-day regulation is not jurisdictional; rather, it is at least as yielding as a statute of limitations that can be tolled for equitable reasons. See Jarrell v. United States Postal Service, 753 F.2d 1088, 1091-92 (D.C.Cir.1985) (failure of government employee to contact EEO counselor within thirty days of alleged discriminatory event could be excused where plaintiff justifiably relied on the advice of another government officer); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (holding that ninety-day (now 180-day) time limit for filing Title VII claim against private employer is not jurisdictional). The Title VII plaintiff bears the burden of pleading and proving in the district court "equitable reasons" for noncompliance with the thirty-day requirement. Saltz v. Lehman, 672 F.2d 207, 209 (D.C.Cir.1982).

The EEOC regulation controlling this case indicates several equitable grounds for tolling time limits; it prescribes that time limits, including the thirty-day period for contacting an EEO counselor, "shall" be extended by the agency

when the complainant shows that he/she was not notified of the time limits and was not otherwise aware of them, was prevented by circumstances beyond the complainant's control from submitting the matter within the time limits; or for other reasons considered sufficient by the agency.

29 C.F.R. § 1613.214(a)(4). It is undisputed here that Bayer did not contact an EEO counselor until July 18, 1986, some sixteen months after he was required to leave the Service, and over 120 days after the failure of his last effort to gain re-employment with the IRS. In his affidavit in opposition to Treasury's motion for summary judgment, however, Bayer stated that he "was not ever aware or ever notified of the requirement that the EEO Counselor had to be notified within 30 days of a discriminatory act." See Affidavit of Michael D. Bayer, filed Jan. 25, 1988, at 4. Bayer also stated that he reasonably relied on the advice of NTEU Chief Steward Joseph that "filing an administrative complaint [in response to the poor evaluation and proposed removal] would adversely [a]ffect his ability to get a favorable reference." Id. at 5. Bayer had similarly told the EEO counselor that he "was never aware or notified of the 30 day requirement." EEO Counseling Report, Aug. 8, 1986, at 2.

Treasury concedes that the Department never notified Bayer of the thirty-day time limit. In support of the summary dismissals Bayer encountered at Treasury, the EEOC, and in district court, however, Treasury highlights the fact that Bayer admits to having considered filing a discrimination complaint during the relevant period. The very consideration Bayer gave to that course, Treasury maintains, shows that he must have been aware of the procedural prerequisites and, specifically, the thirty-day limit on contacting an EEO counselor. The EEOC accepted and repeated Treasury's bonding of awareness of the thirty-day specification to awareness that a discrimination complaint could be lodged. We cannot tell whether Treasury's reasoning in this regard persuaded the district court, for that court supplied no explanation for its decision.

Treasury's logic, counsel now representing Bayer urges, is unsound. We agree. Bayer does steadfastly say that he intentionally refrained from filing a discrimination complaint "for fear that his final [IRS] evaluation ... might be adversely affected." See EEOC Decision, August 6, 1987, at 1. But we are at a loss to comprehend why...