Ganheart v. Lujan

• Decision Date: 30 January 1990
• Docket Number: Civ. A. No. 89-3581.
• Citation: 733 F. Supp. 1053
• Parties: Brenda L. GANHEART v. Manuel LUJAN Jr., Secretary of the Interior.
• Court: U.S. District Court — Eastern District of Louisiana

733 F. Supp. 1053

Brenda L. GANHEART v. Manuel LUJAN Jr., Secretary of the Interior.

Civ. A. No. 89-3581.

United States District Court, E.D. Louisiana.

January 30, 1990.

Robert C. Jenkins, New Orleans, La., for plaintiff.

Glenn K. Schreiber, Asst. U.S. Atty., New Orleans, La., for Lujan.

Order and Reasons

PATRICK E. CARR, District Judge.

This matter is before the Court on defendant's motion to dismiss or alternatively for summary judgment. Determining in its discretion that oral argument is unnecessary,¹ the Court CANCELS the hearing on the motion, previously set for January 31, 1990, and now GRANTS the motion.

This is a federal employee Title VII claim filed by a black woman for sex and race discrimination. The government moves to dismiss on two grounds: (1) the suit was filed untimely, and (2) the relief sought either has been previously granted or is judicially unavailable to plaintiff. Because plaintiff waited more than 20 days before filing her appeal to the EEOC and because the EEOC did not abuse its discretion in denying her request to extend that 20-day time limit, the Court finds that plaintiff's suit is untimely; the Court does not address the government's second ground for dismissal.

I.

In 1984, plaintiff was head librarian at the Minerals Management Service of the Department of the Interior in New Orleans. On May 4, 1989, Dale Douglas, plaintiff's supervisor and acting chief of the Office of Program Services of the MMS, issued a memorandum reorganizing the New Orleans MMS office, including its library, effective May 7, 1984.

On that same date, plaintiff requested a meeting with Douglas. Douglas allegedly told her that she would not be the head librarian for the reorganized library and that a clerk typist position in that unit would not be filled at that time.

On July 17, 1984, plaintiff filed an administrative complaint with the Department of the Interior; she claimed first that she should remain head librarian and second that the clerk typist position should be filled. An Administrative Law Judge heard the case; the ALJ found for plaintiff on her first claim but rejected her second claim as moot (the clerk-typist position was filled in September 1984). The Department's Director of Equal Opportunity adopted the ALJ's decision in full and so advised plaintiff by certified mail, which she received on June 22, 1988; the decision also advised plaintiff of her right to file either a civil action within 30 days, or an appeal to the Equal Employment Opportunity Commission (EEOC) within 20 days, of her receipt of the letter.²

On July 16, 1988 (24 days after 6/23/88), plaintiff mailed an appeal with the EEOC concerning the second claim only. In connection with her notice of appeal, plaintiff submitted a separate letter explaining the reasons for her tardy filing; she contended that she "was in the middle of an investigation of three previous complaints, ... could not locate the cover letter which accompanied the ... EEOC Recommended Decision or the agency's final decision, ... and was subjected to a number of harassive, stressful factors" and that she therefore "could not determine the exact deadline for submittal of the appeal request." Attached to her letter were (1) a letter dated August 22, 1987 by a psychologist that plaintiff was seeing her for "medical and psychotherapeutic help," and (2) a letter dated January 27, 1988 by a medical doctor that plaintiff was under his care for "treatment of respiratory complications ... and should not be exposed to excessive heat or cold." Dismissing the appeal as untimely, the EEOC explained:

Appellant has failed to show that she was not notified of the prescribed time limit. The record indicates she was so informed. In addition, the EEOC's records reflect that appellant has filed several appeals to the EEOC and should be aware of the 20-day time limit. Appellant's contention that she was very busy and lost the notice of when to file does not rise to the level of circumstance beyond her control. Therefore, we find appellant has failed to submit adequate justification, pursuant to 29 C.F.R. § 1613.233(c), for extending the filing period beyond 20 days.

The EEOC notified plaintiff of these written reasons by certified mail, which she received on December 31, 1988.

On January 30, 1989 (30 days after 12/31/88), plaintiff mailed a request to the EEOC for it to reopen and reconsider its dismissal of her appeal; she argued and alleged that the EEOC failed to consider her medical condition, that the EEOC had given the Department of the Interior numerous deadline extensions, that the Department "has not been timely, at any point," and that she was still being subjected to discriminatory treatment. Denying her request, the EEOC explained:

We disagree with appellant's position concerning her untimely filing that she previously provided an explanation regarding her deteriorating mental and physical health. While we note appellant's appeal referenced a respiratory ailment, we find that this alone, along with the documentation concerning her respiratory condition which she has submitted with her request, concerns time periods prior to her receipt of the final agency decision.

Furthermore, none of appellant's arguments or documents demonstrate that appellant was so incapacitated by her condition that she was unable to file her appeal in a timely manner. citation omitted. For these reasons we are not persuaded by appellant's arguments.

Finally, we consider appellant's argument that because the agency has missed deadlines or been granted extensions, she should be afforded similar treatment in the interest of fairness. However, we are not persuaded by appellant's contention. We find that the agency's tardiness in the processing of the complaint in this case does not excuse appellant's lateness in filing her appeal. Rather, a timely filing, unless excused because appellant was not notified of the time limits or was prevented by circumstances beyond her control, is threshold to our consideration of the merits of an appeal. We are not otherwise compelled to consider the merits of this appeal.

The EEOC notified plaintiff of these further written reasons by certified mail, which she received on July 15, 1989.

On August 11, 1989, plaintiff filed this lawsuit, repeating her administrative claims. In lieu of filing an answer, the government brought the instant motion; attached to the motion is, among other documents, a copy of all pleadings filed with the EEOC in connection with plaintiff's appeal.

II.

The government argues that plaintiff's suit is untimely (1) because plaintiff did not file suit within 30 days of December 31, 1988, the date she received notice that the EEOC dismissed her appeal, or alternatively (2) because, without adequate excuse, she did not file her appeal to the EEOC within 20 days of June 22, 1988, the date she received notice of the Department's final decision on her administrative complaint. While the Court rejects the government's first argument, the Court agrees with the government's second.

A.

It is now well established that 42 U.S.C. § 2000e-16 provides the sole and exclusive remedy to a federal employee for claims of racial and sexual job discrimination.³ 42 U.S.C. § 2000e-16(c), governing the timeliness of civil actions, reads in pertinent part:

Within thirty days of receipt of notice of final action taken by a department ... or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department ... on a complaint of discrimination based on race, color or sex ..., an employee ..., if aggrieved by the final disposition of his complaint, ... may file a civil action ..., in which civil action the head of the department ... shall be the defendant.

The Fifth Circuit has consistently held that this 30-day filing limitation is jurisdictional and thus (unlike private discrimination cases under 42 U.S.C. § 2000e-5(f)(1)) is not subject to equitable tolling.⁴

Congress did not define what constitutes a "final disposition" by the EEOC for the purposes of the jurisdictional limitation period in 42 U.S.C. § 2000e-16(c). Pursuant to its delegated powers under the statute,⁵ however, the EEOC has promulgated regulations under the statute⁶ that do address the issue.

29 C.F.R. § 1613.234(a) provides for written decisions by the EEOC for appeals to the EEOC from the employee's department. 29 C.F.R. § 1613.234(b) provides:

A decision issued under this section is final ... unless:

(1) Within 30 days of receipt sic a decision issued under paragraph (a) of this section, either party files a timely request to reopen pursuant to § 1613.235, or

(2) The EEOC on its own motion reopens the case.

29 C.F.R. § 1613.235 provides:

. . . .

(b) Parties may request reopening or reconsideration provided that such request is made within 30 days of receipt of a decision issued pursuant to § 1613.234

. . . .

. . . .

(d) A decision on a request to reopen by either party is final and there is no further right by either party to request reopening.

Finally, 29 C.F.R. § 1613.240(b) provides that a document is "deemed timely if it is ... postmarked before the expiration of the applicable filing period."

Under 29 C.F.R. § 1613.234(b)(1), the EEOC's written reasons disposing of an employee's appeal is final unless either party to the appeal — i.e., the employee or the employing department — files a timely request for the EEOC to reopen. Because plaintiff did not file her suit within 30 days of the EEOC's decision dismissing her appeal, the issue becomes whether she "filed a timely request to reopen pursuant to § 1613.235."

In this case, plaintiff received on December 31, 1988 the EEOC's decision dismissing her appeal. Under § 1613.235(b), she had to make — or in the words of § 1613.234(b)(1), to file — her request within 30 days thereof (i.e., by January 30, 1989) in order for her request to be timely. Under § 1613.240(b), a request to...