Gibson v. West Sec. Dept. of Veterans Affairs

• Decision Date: 24 January 2000
• Docket Number: No. 96-3776,96-3776
• Parties: (7th Cir. 2000) Michael Gibson, Plaintiff-Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 990

201 F.3d 990 (7th Cir. 2000)

Michael Gibson, Plaintiff-Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Defendant-Appellee.

No. 96-3776

In the United States Court of Appeals For the Seventh Circuit

Submitted July 19, 1999

Decided January 24, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 223--Ruben Castillo, Judge.

Before Ripple, Manion, and Kanne, Circuit Judges.

On Remand From the Supreme Court of the United States

Manion, Circuit Judge.

This case is before us on remand from the Supreme Court. See Gibson v. Brown, 137 F.3d 992 (7th Cir. 1998), vacated sub nom. West v. Gibson, 119 S. Ct. 1906 (1999). In Gibson, we held that plaintiff Michael Gibson did not seek compensatory damages before the Equal Employment Opportunity Commission (EEOC) as part of his Title VII discrimination claim against his employer, the Veterans Administration (VA). Id. at 994. We concluded, however, that the requirement that Gibson exhaust his administrative remedies did not apply to his request for such relief because the EEOC did not possess the statutory authority to award compensatory damages. As a result, we held that Gibson could seek such relief in the district court, and that it had erred in dismissing his claims for a failure to exhaust. See id. at 994- 998.

The Supreme Court vacated our decision in this matter, holding that the EEOC possesses the authority under 42 U.S.C. sec. 2000e-16(b) to order federal agencies to pay compensatory damages when they discriminate in employment. See West, 119 S. Ct. at 1912-13. Before the Supreme Court, Gibson argued that if the Court vacated our decision, it should still allow him to proceed in the district court on an alternative ground. See id. at 1912. More specifically, he argued in the Supreme Court that he satisfied the exhaustion requirement, "even if he did not give notice to the EEOC that he sought compensatory damages", because "(1) the requirement of notice for exhaustion purposes is unusually weak in respect to compensatory damages, (2) he did request a 'monetary cash award,' and (3) special circumstances estop the Government from asserting a 'no exhaustion' claim in this case." Id. The Supreme Court directed us to "determine whether these questions have been properly raised and, if so, decide them." Id.

The parties have filed their Statements pursuant to Circuit Rule 54 as to how this court should proceed. The VA argues that Gibson did not raise before us his first ground (the notice requirement is "weak" for compensatory damages), that this court has already ruled against Gibson with respect to his second ground (he requested a "monetary cash award"), and that his third ground is legally ill-founded (estoppel is inapplicable, the VA argues, to the requirement of exhaustion). Gibson contends, without showing where, that he has raised all three alternate grounds, and he requests leave to file supplemental briefs on these issues.

Upon reviewing Gibson's briefs pursuant to the Supreme Court's directive, we find that Gibson has not preserved his first and second alternate grounds. As a general matter, Gibson did not alternatively argue in this court that he had exhausted his administrative remedies with respect to compensatory damages, let alone make either of these two more specific alternative arguments. Rather, before us Gibson argued that the district court erred in construing his request for compensatory damages as a new claim rather than a new request for relief, and that he had exhausted his administrative remedies because the exhaustion requirement does not apply to forms of relief (according to him, it only applies to claims).¹ Initial Brief at 20-26. Thus, far from arguing that he had satisfied the requirement of exhaustion with respect to compensatory damages, Gibson argued that he did not have to do so. See, e.g., id. at 21 ("Federal case law on exhaustion and federal regulations on discrimination refer to the claim as the discriminatory conduct, not the request for relief."); id. at 25 ("The district court's ruling on exhaustion treated a category of damages as if it was [sic] a separate claim, but neither the case law nor the administrative regulations support this approach. To the contrary, the case law and the regulations treat parties as having exhausted their administrative remedies when they set out the basic facts indicating discriminatory conduct."). He persisted with this premise in his reply brief. See Reply Brief at 10 ("The law holds to the contrary, that the claim which must be exhausted consists of the facts indicating discrimination, and that the claimant's request for relief is entirely hortative."). This is much different from arguing, for example, as he now does, that the doctrine does in fact apply to remedies, albeit (according to Gibson) in a "weaker" form. So not only did Gibson fail to make either of his first two, alternate arguments, he actually argued an opposite premise in terms of the basic need to exhaust administrative remedies.² Accordingly, we find that Gibson has waived his first two alternative arguments by not previously raising them before this court. See Russo v. Health Welfare & Pension Fund, 984 F.2d 762, 769 (7th Cir. 1993) (arguments made for the first time on appeal are waived).

The VA concedes that Gibson has preserved his third alternative argument, estoppel, and when this case was previously before us, both parties briefed this issue. Thus, we may decide the estoppel question without the additional briefing Gibson requests. See West, 119 S. Ct. at 1912.

As a threshold matter, each side disagreed as to whether a failure to exhaust administrative remedies was a jurisdictional flaw or simply a condition precedent to bringing an action in federal court. The VA noted that in Pack v. Marsh, 986 F.2d 1155, 1157 (7th Cir. 1993), we held it was jurisdictional, while Gibson pointed to our decision in Charlie F. v. Board of Education of Skokie School District 68, 98 F.3d 989, 991 (7th Cir. 1996), where we stated it was merely a precondition to filing. The answer to this question dictates whether Gibson may, as a matter of law, avail himself of the estoppel defense. If a failure to exhaust is a jurisdictional requirement, then Gibson cannot cite estoppel to excuse his failure to exhaust administrative remedies and our inquiry is at an end. See generally Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392 (1982) ("The single question . . . is whether the timely filing of an EEOC charge is a jurisdictional prerequisite to bringing a Title VII suit in federal court or whether the requirement is subject to waiver and estoppel."). Some district courts, including the district court in this case, cite Pack; others have implicitly concluded that in light of other decisions of this court, Pack is erroneous. Compare Allen v. Runyon, No. 97-C-8701, 1999 WL 350851, at *2 (N.D. Ill. May 26, 1999) (citing Pack) ("If Allen has not exhausted his administrative remedies, this court lacks subject matter jurisdiction to decide his claims."), and Hill v. Runyon, 959 F. Supp. 488, 493, 496 (N.D. Ill. 1997) (citing Pack, then holding that court lacked "subject matter jurisdiction over the Title VII claims . . . because [plaintiff] failed to exhaust administrative remedies."), with Salerno v. Runyon, No. 92-C-3679, 1993 WL 311923, at *1 n.1 (N.D. Ill. Aug. 11, 1993) (declining to follow Pack) ("Exhaustion of administrative remedies is not a jurisdictional prerequisite to plaintiff's discrimination claims."), and Cullom v. Brown, No. 96-C-1925, 1998 WL 142429, at *2 n.3 (N.D. Ill. March 24, 1998) (same). After reviewing the law in this area, we conclude that Charlie F. is the correct and current law; a failure to exhaust administrative remedies is not a jurisdictional flaw.

In Zipes, the Supreme Court held that with respect to a suit against a private employer, the timely filing of an EEOC charge--the initial step on a path to exhausting administrative remedies-- is not a jurisdictional requirement to bringing a Title VII claim in federal court; rather, it is like a statute of limitations and is thus subject to the doctrines of "waiver, estoppel, and equitable tolling." 455 U.S. at 393. Following Zipes, in 1990 this court overruled an earlier decision, Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), and held that with respect to a suit against a governmental employer, the timely filing of an EEOC charge is also not a jurisdictional requirement to bringing a Title VII claim in federal court. Rennie v. Garrett, 896 F.2d 1057, 1061-1062 (7th Cir. 1990). Ten months later the Supreme Court validated our holding in Rennie. In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990), it rejected the VA's sovereign immunity argument and held that with respect to a Title VII claim against a public employer, the timely filing of a lawsuit is not a jurisdictional requirement but (again) is a precondition, like a statute of limitations, that is subject to equitable tolling. In 1994 and 1996, this court applied the same rationale as in Rennie and held that the intermediate and initial time limits...