Briones v. Runyon

• Decision Date: 02 December 1996
• Docket Number: No. 492,D,492
• Citation: 101 F.3d 287
• Parties: 72 Fair Empl.Prac.Cas. (BNA) 801, 69 Empl. Prac. Dec. P 44,409 Nicanor A. BRIONES, Plaintiff-Appellant, v. Marvin T. RUNYON, Jr., Defendant-Appellee. ocket 96-6033.
• Court: U.S. Court of Appeals — Second Circuit

Page 287

101 F.3d 287

72 Fair Empl.Prac.Cas. (BNA) 801,

69 Empl. Prac. Dec. P 44,409

Nicanor A. BRIONES, Plaintiff-Appellant, v. Marvin T. RUNYON, Jr., Defendant-Appellee.

No. 492, Docket 96-6033.

United States Court of Appeals, Second Circuit.

Submitted Oct. 10, 1996.

Decided Dec. 2, 1996.

Nicanor A. Briones, Live Oak, FL, pro se.

Christopher F. Droney, United States Attorney, District of Connecticut, Althea E. Seaborn, Assistant United States Attorney, Bridgeport, CT, for Appellee.

Before OAKES, CARDAMONE, and MAHONEY, ^* Circuit Judges.

OAKES, Senior Circuit Judge:

Appellant Nicanor A. Briones, pro se, appeals from the final order entered November 15, 1995, in the United States District Court for the District of Connecticut, Alan H. Nevas, Judge, granting summary judgment for the defendant and dismissing plaintiff's employment discrimination complaint. Briones asserts that the district court improperly dismissed his complaint as untimely, and that because genuine issues of material fact still remain, summary judgment is inappropriate. We agree, and therefore reverse and remand.

I Facts

Nicanor Briones, a former employee of the United States Postal Service, filed a complaint in district court seeking reinstatement and money damages pursuant to the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1988 & Supp. V 1993) ("Title VII") and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1988 & Supp. V 1993) ("ADEA"). Briones, who is of Filipino descent and who was 47 years of age at the time his employment was terminated, alleges that he was subjected to a hostile work environment and terminated from employment on the basis of his race, national origin, and age.

In March of 1987, Briones began his employment with the Postal Service. He was subsequently assigned to the New London, Connecticut, Post Office as a part-time flexible clerk ("PTF") in June of 1988. On July 19, 1990, Briones and a coworker, Juan Agbayani, were involved in an altercation on the workroom floor of the post office. That same day, the Postal Service placed Briones on off-duty status, without pay, pending its investigation of the incident. On August 3, the Postal Service returned Briones to pay status but continued his administrative leave. On August 6, the Postal Service issued a Notice of Removal to both Briones and Agbayani for the July 19 incident.

Briones challenged his dismissal but was denied relief by a grievance arbitrator who, on May 24, 1991, found just cause for the dismissal. On June 11, 1991, Briones contacted the Equal Employment Opportunity ("EEO") office to request counseling regarding his removal from the Postal Service. On August 17, Briones filed a formal complaint claiming race, religion, and age discrimination, and indicating the July 19, 1990 incident as the most recent act of discrimination. On November 4, 1991, the Postal Service began its investigation of Briones's complaint. On December 11, 1991, the Postal Service issued its final agency decision, dismissing Briones's EEO complaint as untimely based on his failure to request EEO counseling within thirty days of the alleged discriminatory incident.

Briones appealed this decision to the Office of Federal Operations of the Equal Employment Opportunity Commission ("EEOC"), which vacated and remanded it on March 9, 1992. Specifically, the EEOC found that Briones had submitted adequate justification for extension of the 30-day time limit because the Postal Service had failed to show that it had informed him of EEO procedures. On remand, the Postal Service issued another final agency decision on May 26, 1992, finding no discrimination; the EEOC affirmed on October 18, 1993. On March 31, 1994, the EEOC denied Briones's request for reconsideration, and notified him of his right to file a civil action.

Briones filed his complaint in district court on June 16, 1994. On February 21, 1995, he filed a motion for summary judgment, which merely elaborated upon the allegations of his complaint and included no affidavits or exhibits. On July 25, the Postal Service filed its motion to dismiss or, in the alternative, for summary judgment, which was supported by both affidavits and exhibits. The Postal Service raised the same argument that it had raised in its original final agency decision of December 11, 1991: that Briones had failed to contact an EEO counselor within thirty days of the alleged discriminatory incident. The Postal Service further argued that Briones could not raise his race and national origin claims because he had failed to raise them during the administrative process. Alternatively, the Postal Service argued that it was entitled to judgment as a matter of law because it had articulated legitimate, nondiscriminatory reasons for terminating Briones's employment.

On October 26, 1995, the district court denied Briones's summary judgment motion and granted that of the Postal Service. The district court found that Briones's age and hostile environmental claims were untimely because he did not make contact with an EEO counselor until 10 months after he received his notice of discharge. The court declined to decide whether Briones's race and national origin claims were also barred as being unrelated to his age and hostile environment claims. The district court also ruled, without discussion, that the doctrines of equitable tolling, estoppel, and waiver did not excuse Briones's untimely initial contact with an EEO counselor. Judgment was entered on November 1, 1995.

On November 27, 1995, Briones filed a motion for extension of time to file a notice of appeal of the district court's grant of summary judgment and dismissal of his complaint, which the court construed as a timely notice of appeal. Briones filed his motion for appointment of counsel on March 19, 1996. On May 10, a Second Circuit panel denied Briones's motion for appointment of counsel, and dismissed the portion of the appeal relating to Briones's claim of unlawful discharge as so indisputably lacking in merit as to be frivolous within the meaning of 28 U.S.C. § 1915(d). Briones proceeded pro se with his claims of hostile work environment and disparate work assignments.

II Discussion

A. Exhaustion of Administrative Remedies

"Title VII is the exclusive remedy for discrimination by the federal government on the basis of race, religion, sex, or national origin." Boyd v. United States Postal Service, 752 F.2d 410, 413-14 (9th Cir.1985) (citing Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). Under Title VII, a litigant must exhaust available administrative remedies in a timely fashion. See id. Similarly, the law of this circuit holds that, under the ADEA, a litigant is obliged to exhaust all administrative proceedings before filing a civil action in federal court. Wrenn v. Secretary, Dept. of Veterans Affairs, 918 F.2d 1073, 1078 (2d Cir.1990). Under the regulations in effect at the time of Briones' dismissal, for a federal employee's administrative discrimination complaint to have been timely filed, he was required to bring the matter to the attention of an EEO counselor within 30 calendar days of the date of the alleged discriminatory event, or of the date that he knew or should have known of the discriminatory event. ¹ 29 C.F.R. § 1613.214(a)(1)(i) (1991). Accordingly, failure to bring a claim within the 30-day period ordinarily would have precluded a plaintiff from pursuing a discrimination claim in federal court. Girard v. Rubin, 62 F.3d 1244, 1246 (9th Cir.1995). However, the statutory requirement for filing is analogous to a statute of limitations and is, therefore, considered subject to waiver, estoppel, and equitable tolling. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996); Boyd, 752 F.2d at 414. Here, the district court made an independent determination of whether Briones had satisfied the timeliness requirement. See Goldman v. Sears, Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir.1979) (EEOC's determination is a factor to be considered, but courts generally make an independent review of the timeliness of the agency filing). Specifically, the district court found that the 30-day contact period expired on September 18, 1990, i.e., thirty days after Briones was assumed to have received his notice of termination, and that, therefore, Briones's initial contact with an EEO counselor on June 11, 1991, was untimely. Furthermore, the record supports the view that Briones was fully aware of his rights to file a complaint with the EEO.

None of the traditional grounds for equitable tolling provide relief to Briones. ² He is, however, entitled to a finding of waiver of the statutory requirements under reasoning of the Ninth Circuit's recent holding in Girard. Although the Girard plaintiff had contacted his EEO counselor nearly three years after the alleged discriminatory acts of the Internal Revenue Service ("IRS"), far beyond the statutory thirty-day filing period, id. at 1246, the EEOC ruled that his claim was timely because he "could not have reasonably known that his discharge from the [IRS] was unauthorized and improper until he was told this fact by the EEO Counselor." Id. at 1245 (quoting EEOC decision.) The IRS then accepted the complaint, began an investigation, and ultimately ruled that no discrimination had occurred. Id. at 1245-46. That decision was affirmed by the EEOC, after which decision Girard filed suit in federal district court. Id. at 1246. Following cross-motions for summary judgment, the district court granted the defendant's motion, holding that Girard had not timely filed his administrative complaint. Id.

On appeal, the Ninth Circuit acknowledged case law holding that in a situation where a defendant agency receives and accepts a complaint, begins investigating, and later determines that the filing was untimely, the agency does not waive its right to argue lack of timeliness in ...