Harms v. I.R.S., 01-3245.

• Decision Date: 04 March 2003
• Docket Number: No. 01-3245.,01-3245.
• Citation: 321 F.3d 1001
• Parties: Richard Evan HARMS, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

321 F.3d 1001

Richard Evan HARMS, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee.

No. 01-3245.

United States Court of Appeals, Tenth Circuit.

March 4, 2003.

COPYRIGHT MATERIAL OMITTED

Alleen Castellani VanBebber, Mission, KS, for Plaintiff-Appellant.

Nancy Landis Caplinger, Assistant United States Attorney, (James E. Flory, United States Attorney, Eric F. Melgren, United States Attorney, with her on the briefs), Topeka, KS, for Defendant-Appellee.

Before LUCERO, PORFILIO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Appellant Richard Harms filed this action in federal district court against his former employer, the Internal Revenue Service ("IRS"), alleging he was wrongfully suspended and terminated in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Vocational Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §§ 791 and 794.¹ The district court granted the IRS' motion for summary judgment on Harms' claims relating to his suspension and dismissed the claims relating to his termination for lack of subject matter jurisdiction. This court has jurisdiction under 28 U.S.C. § 1291 and affirms.

II. FACTUAL AND PROCEDURAL BACKGROUND

Harms was employed as a tax examining assistant by the IRS. The IRS suspended Harms without pay from April 22 through May 1, 1996. On April 17, 1996, Harms filed an individual complaint of discrimination (an "EEO complaint") with the Department of the Treasury, Treasury Complaint Center ("TCC"). Harms' EEO complaint alleged that his suspension was the result of retaliation and discrimination based on age, sex, national origin, race, religion, and mental and physical disability. The TCC accepted Harms' EEO complaint for processing on August 12, 1996.

On October 13, 1996, Harms was terminated by the IRS. Harms was informed by the IRS that he could appeal his termination to the Merit Systems Protection Board ("MSPB"). Harms was also informed that if he alleged his termination was based on discrimination, he could either appeal the termination to the MSPB, or raise his discrimination allegation through the IRS discrimination complaint system. He was, however, told that he could not pursue both routes.

On November 14, 1996, Harms appealed his termination to the MSPB. In his appeal, Harms alleged that his termination was the result of retaliation and discrimination on the basis of race, religion, sex, and political affiliation.

On January 9, 1997, the TCC dismissed Harms' EEO complaint regarding his suspension, stating that the appeal of his termination to the MSPB raised the same matters contained in his EEO complaint. Harms was instructed by the TCC to bring the allegations he made in his EEO complaint to the attention of the MSPB.

On January 23, 1997, Harms' brother informed the Administrative Law Judge ("ALJ") assigned to hear Harms' MSPB appeal that Harms had been involuntarily institutionalized and that he was "expected to regain competency within six months." The ALJ dismissed Harms' appeal without prejudice and ordered that he re-file his appeal by July 23, 1997.

On November 6, 1997, Harms filed a petition to reopen his appeal with the MSPB. On March 4, 1998, the ALJ dismissed Harms' petition on the grounds that he did not timely re-file his appeal with the MSPB after he regained competency on August 2, 1997, the date he resumed taking his antipsychotic medication. Harms filed a petition for review of the dismissal of his appeal which the MSPB denied on July 31, 1998. Harms appealed the final decision of the MSPB to the United States Court of Appeals for the Federal Circuit. The Federal Circuit affirmed the decision of the MSPB on February 14, 2000. Harms filed a petition for writ of certiorari with the United States Supreme Court which was denied on October 2, 2000.

On October 12, 2000, Harms filed this action in the district court alleging that his suspension and termination violated Title VII and the Rehabilitation Act. On February 9, 2001, the IRS filed a motion to dismiss, or in the alternative, for summary judgment. The district court granted summary judgment for the IRS on Harms' claims relating to his suspension, concluding that Harms failed to timely file his civil action and that equitable tolling was not warranted under the circumstances. The district court also dismissed Harms' claims relating to his termination, reasoning that it lacked subject matter jurisdiction to review the MSPB's dismissal of Harms' appeal for untimeliness and that Harms failed to exhaust his administrative remedies.

III. DISCUSSION

A. The Civil Service Reform Act

1. Individual Complaints in Non-Mixed Cases

A federal employee asserting Title VII and Rehabilitation Act claims must file an initial complaint with his agency Equal Employment Office ("EEO"). 29 C.F.R. §§ 1614.105(a)(1), 1614.106. The employee may appeal the final determination of the agency to the federal district court within ninety days of the receipt of the final action or 180 days after the filing of the complaint if no action is taken by the agency. 29 C.F.R. § 1614.407(a)-(b).

2. Mixed Cases

The Civil Service Reform Act ("CSRA") provides an alternative mechanism by which a federal employee may assert Title VII and Rehabilitation Act claims that arise out of adverse employment actions which are also appealable to the MSPB. 5 U.S.C. §§ 1201-1222; McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995). Such cases are referred to as "mixed cases" because the alleged unlawful discrimination is either related to or stems from an employment action over which the MSPB has jurisdiction. 29 C.F.R. § 1614.302(a); 5 C.F.R. § 1201.3.

Under the CSRA, a federal employee may file a mixed case complaint with the agency's EEO department or a mixed case appeal with the MSPB. 5 U.S.C. § 7702(a); 29 C.F.R. § 1614.302; 5 C.F.R. §§ 1201.151-1201.157. A mixed case complaint and mixed case appeal, however, cannot be pursued simultaneously. 29 C.F.R. § 1614.302(b).

If the employee files a mixed case appeal with the MSPB, the MSPB is required to address both the alleged discrimination and the employment action. 5 U.S.C. § 7702(a)(1). When the MSPB issues a decision on a mixed case, the employee may seek de novo review of the MSPB's decision in federal district court. 29 C.F.R. § 1614.310(b).

B. Harms' Suspension Claims

The individual EEO complaint Harms filed with the TCC was not a mixed case because the MSPB lacked jurisdiction over his ten-day suspension. 5 C.F.R § 1201.3; 5 U.S.C. § 7702(a)(1)(A). The TCC dismissed Harms' individual EEO complaint on January 9, 1997. Harms, however, waited until October 12, 2000, to file this case in federal district court appealing the dismissal of his individual EEO complaint by the TCC.

The district court granted the IRS summary judgment on Harms' suspension claims by concluding that Harms did not timely file his civil action challenging the TCC's dismissal of his individual EEO complaint and that equitable tolling was not warranted under the circumstances. Harms concedes that his civil action was not timely. 29 C.F.R. § 1614.407(a) (providing that an employee who receives an adverse agency decision on his individual EEO complaint may then file a civil action in federal district court within 90 days of the receipt of the final agency action). He argues, however, that the district court abused its discretion when it decided not to equitably toll the time in which he was required to seek review of the TCC's dismissal of his EEO complaint.

This court typically reviews the district court's grant of summary judgment de novo. Simms v. Oklahoma, 165 F.3d 1321, 1326 (10th Cir.1999). This court, however, reviews the district court's decision not to apply equitable tolling for an abuse of discretion. United States v. Clymore, 245 F.3d 1195, 1198 (10th Cir.2001).

The requirement that a plaintiff file a timely civil action after the disposition of an individual EEO complaint is not a jurisdictional requirement, but rather is subject to waiver, estoppel, and equitable tolling. Cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir.1996). Equitable exceptions, however, have been narrowly construed. See Biester, 77 F.3d at 1267. Harms argues that the time for filing his civil action should have been tolled because: (1) he was not mentally competent to proceed in a timely manner; and (2) the TCC improperly instructed him to bring his suspension claims before the MSPB.

This court has never held that an individual's mental incapacity entitles him to equitable tolling Id. at 1268. In Biester, however, we noted that courts which recognize equitable tolling for mental incapacity have limited its application to exceptional circumstances. Id. Given the facts of this case as explained more fully below, this court need not reach the issue of whether the statute of limitations for filing a civil action in district court from the dismissal of an individual EEO complaint should be equitably tolled for mental incapacity.

The district court concluded the undisputed facts showed that Harms was mentally competent as of August 2, 1997 when he resumed taking his antipsychotic medication. The district court also noted Harms presented no evidence to explain why he delayed the filing of his complaint for three years after he regained mental competency. Harms, however, argues that the district court failed to request medical records or psychiatric evidence to support its conclusion that he was mentally competent after August 2, 1997. Harms' argument lacks merit. Harms had the burden of establishing his mental competency. See Biester, 77 F.3d at 1268-69. Harms failed to present any evidence to the district court that he was mentally incompetent after August 2, 1997, when he resumed taking his antipsychotic...