Currier v. Radio Free Europe/Radio Liberty, Inc.

• Decision Date: 21 January 1999
• Docket Number: No. 98-7020,98-7020
• Citation: 159 F.3d 1363
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 513, 74 Empl. Prac. Dec. P 45,610, 333 U.S.App.D.C. 50 Paul Talcott CURRIER, Appellant, v. RADIO FREE EUROPE/RADIO LIBERTY, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1363

159 F.3d 1363

78 Fair Empl.Prac.Cas. (BNA) 513,

74 Empl. Prac. Dec. P 45,610, 333 U.S.App.D.C. 50

Paul Talcott CURRIER, Appellant, v. RADIO FREE EUROPE/RADIO LIBERTY, INC., Appellee.

No. 98-7020.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 14, 1998.

Decided Nov. 13, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 21, 1999.

Appeal from the United States District Court for the District of Columbia (97cv01619).

Peter C. Cohen argued the cause and filed the briefs for appellant.

Gil A. Abramson argued the cause for appellee. With him on the brief were David G. Leitch and Catherine E. Stetson.

Before: SILBERMAN, ROGERS, and GARLAND, Circuit Judges.

SILBERMAN, Circuit Judge:

Appellant brought a Title VII suit against his employer. The employer moved for summary judgment, asserting that appellant's suit was barred because he had not timely exhausted his administrative remedy with the EEOC. Rejecting appellant's contention that he had filed his EEOC complaint on time and his alternative argument that equitable principles should operate to toll the filing requirement, the district court granted summary judgment in favor of the employer. We reverse in part and affirm in part.

I.

Appellant Paul Currier was hired as an independent contractor by appellee Radio Free Europe/Radio Liberty, Inc., a non-profit Delaware corporation with primary operations in Prague, the Czech Republic. Appellant was to serve as a computer network engineer and systems analyst at the Prague location, and entered into a six-month contract with appellee to begin December 31, 1995 and to expire on June 30, 1996. ¹

In February or March 1996, Currier went to a restaurant in Prague after work. Candace O'Brien, appellee's Director of Human Resources, was seated at a table with other coworkers. O'Brien, apparently inebriated, made disparaging comments regarding appellant's sexual prowess. She then unbuttoned his pants, squeezed his penis, and exposed his testicles. The following day, O'Brien--a supervisory official who had authority to fire appellant--instructed him that "he had better get in line [with her version of what happened] or he would have a problem with her." (O'Brien's "official version" maintained that appellant had voluntarily exposed himself at the table.) O'Brien further threatened that if appellant discussed the actual incident, his employment contract would not be renewed and he would have problems during the remainder of his existing contract. Appellant took O'Brien's threats seriously, and refrained from mentioning the incident. But O'Brien often recounted the "official version," and when appellant was asked for his account by a coworker in O'Brien's presence, he disputed the "official version." O'Brien warned appellant not to make such a mistake again.

Soon thereafter, Currier encountered one of the "problems" that O'Brien had promised. At a workplace social event, appellant had a heated discussion with a female co-worker about the definition of sexual harassment. The following day, he learned that O'Brien was investigating the incident and that he was suspected of sexual harassment against the female co-worker. Although the investigation was without basis in fact, he received a termination letter from O'Brien on May 14, 1996. He viewed this accusation as a pretext for retaliating against him because of his earlier opposition to O'Brien's sexual harassment of him.

Less than a week after receiving O'Brien's termination letter, Currier met with Robert Gillette, appellee's Director of Broadcasting and a higher ranking management official than O'Brien. Appellant told Gillette that his previous encounters with O'Brien made it impossible for O'Brien to conduct a neutral investigation of appellant's asserted sexual harassment of the female co-worker. Gillette promised to conduct a second investigation that would be fair and impartial, and assured Currier that there would be "no final determination" regarding his employment status until that second investigation was concluded.

Appellant stopped coming to work after receiving his termination letter, and his contract expired by its terms on June 30, 1996. But he did not give up his efforts to return to appellee's employ. Rather, he inquired several times about the status of Gillette's investigation. Shortly before Thanksgiving 1996, he met with his former supervisor, Tom Morgan, and Gillette. Appellant was told that the investigation was still continuing and had not yet been concluded. Gillette referred to Morgan as appellant's present "boss" and said that Morgan "will always be your boss."

Appellant filed an administrative complaint with the San Francisco office of the EEOC on March 28, 1997. The EEOC issued a notice of right to sue, and appellant brought suit against appellee in the district court under Title VII, contending, first, that O'Brien had sexually harassed him, and second, that she had retaliated against him for opposing her advances by terminating his employment. Appellee moved to dismiss the complaint, or in the alternative for summary judgment, on the ground that appellant had not filed his EEOC complaint in the time required by 42 U.S.C. § 2000e-5(e)(1) (1994). Appellant argued in opposition that it was improper to start the clock when he received the termination letter because that termination decision was not a final decision. Alternatively, he argued that one of appellee's officials had misled him into believing that he would be rehired, and therefore that appellee should be equitably estopped from asserting the statutory deadline. The district court disagreed and granted summary judgment in favor of appellee.

II.

42 U.S.C. § 2000e-5(e)(1) requires that "[a] charge ... shall be filed [with the EEOC] within one hundred and eighty days after the alleged unlawful unemployment practice occurred." ² Only after exhausting this administrative remedy can an aggrieved person bring suit in district court. Jarrell v. United States Postal Serv., 753 F.2d 1088, 1091 (D.C.Cir.1985) (citing Brown v. General Servs. Admin., 425 U.S. 820, 832-33, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). Here, the parties agree that appellant filed his EEOC complaint on March 28, 1997. For appellant's EEOC complaint to have been timely, the precise " 'unlawful employment practice' of which he complains," Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), must have occurred within 180 days of his EEOC filing, i.e., on or after September 29, 1996.

The parties disagree on when the unlawful employment practice occurred, and thus on when the statutory clock started ticking. Appellee argues that we should count from the date appellant received his termination letter, May 14, 1996; thus measured, appellant did not file his EEOC complaint for 328 days, which is too late. Appellant, while not offering a specific starting date, contends that the clock did not start ticking until long after May 14, 1996, because the May 14 termination decision was not yet a final decision. Alternatively, he argues that appellee's manager's misleading assurances of reinstatement should equitably estop appellee from asserting the statutory filing deadline. ³ Under either of appellant's approaches, of course, he would not be deemed to have failed to exhaust his administrative remedy. ⁴

A.

We begin with the question of when (if ever) appellant had notice that the termination decision was final so as to start the clock on the EEOC filing deadline. See Ricks, 449 U.S. at 261, 101 S.Ct. 498 (holding that the starting point for the deadline occurs when plaintiff has notice of an official, i.e., not "tentative," decision). The parties agree that appellant received the termination letter from O'Brien on May 14, 1996, ⁵ and that O'Brien had the authority to fire him.

But were the circumstances such that O'Brien's decision was not actually final? Appellant claims that Gillette, a manager directly superior to O'Brien in appellee's organizational hierarchy, assured him less than a week after May 14 that O'Brien's decision was not a "final determination." Gillette is claimed to have again told Currier around Thanksgiving that the investigation was still ongoing; Currier was not told that Gillette's investigation had concluded by the time he filed his charges with the EEOC's San Francisco office the following March. Appellee reminds us that in Ricks, the Supreme Court was careful to point out that an employer that expresses an "official position" and simultaneously "indicate[s] a willingness to change its [official position]" based on the outcome of a pending grievance proceeding does not thereby render that "official position" a "tentative" decision. Ricks, 449 U.S. at 261, 101 S.Ct. 498. And appellee refers us to our recent warning that "a plaintiff [may not] avoid the holding in Ricks simply by labeling the final decision 'preliminary' and procedures to review that decision an 'integral part' of the decision process rather than collateral review of the final decision." Harris v. Ladner, 127 F.3d 1121, 1125 (D.C.Cir.1997).

It is true that the reconsideration of Currier's termination would not alone render the initial decision "preliminary" rather than "final." But we think appellant points to more than mere reconsideration in his effort to identify a later starting date for the statutory clock. He claims that a supervisor of the initial decision-maker informed him shortly after that initial decision that "there would be no final determination ... until the conclusion of his investigation." In other words, an authoritative voice (Gillette) expressly disavowed the finality of the initial determination, ⁶ which implies a later starting date--though it remains unclear exactly when the decision became final--that could bring appellant's EEOC complaint within the statutory time limit. Whether Gillette did indeed make such an assurance and...