Jensen v. Frank

Decision Date04 June 1990
Docket NumberNo. 90-1168,90-1168
Citation912 F.2d 517
Parties53 Fair Empl.Prac.Cas. 1450, 54 Empl. Prac. Dec. P 40,191 Donald A. JENSEN, Plaintiff, Appellant, v. Anthony M. FRANK, Postmaster General, United States Postal Service, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Stephen A. McNerney, for plaintiff, appellant.

Mark W. Pearlstein, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Jesse L. Butler, Asst. Gen. Counsel, and Lori J. Dym, Atty., Office of Labor Law, were on brief for defendant, appellee.

Before SELYA and SOUTER *, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

This is an action under 42 U.S.C. Sec. 2000e-16 wherein plaintiff-appellant Donald A. Jensen claims that he was fired by reason of national origin. The United States District Court for the District of Massachusetts granted the Postmaster General's motion for summary judgment on the ground that appellant failed to bring his complaint to the attention of an Equal Employment Opportunity (EEO) counselor within 30 days of the triggering event, as required by law. 1 Jensen appeals both from this ruling and from the district court's earlier decision not to sanction the Postmaster General for an alleged failure to comply with a court order. We affirm.

I. BACKGROUND

Jensen enrolled in the postal service in 1973. He was working as a distribution clerk in the Worcester post office when, on December 11, 1982, he was arrested while on the clock. A search of Jensen's person and car yielded, inter alia, football cards and a list of bettors' names (including the names of some postal employees). The police charged Jensen with promoting a lottery and possession of gaming apparatus.

By letter dated December 15, the post office placed appellant on indefinite suspension pending an investigation. On January 6, 1983, Jensen received a follow-up letter notifying him that his employment would be terminated effective February 11 because he had violated an established proscription against gambling by postal employees while on duty or on federal property. 2 Jensen's union grieved the firing on his behalf and, attaining no satisfaction, brought the case to arbitration. The arbitrator eventually upheld the personnel action.

Appellant first contacted an EEO counselor by telephone on June 22, 1983. On June 30, he submitted a "Discrimination Complaint Receipt Form" in which he listed his national origin as "Lithuanian and Italian." On a sheet accompanying this form, he alleged national origin discrimination. In this and subsequent documents, appellant also alleged that (1) he had been discriminated against in reprisal for past use of the grievance/arbitration process and (2) other postal employees had been charged with serious crimes or section 661.56 infractions but had not lost their jobs.

Jensen filed a formal administrative complaint on September 21, claiming to have been a victim of discrimination based on national origin, namely, his "Italian/Lithuanian" heritage. The postal service rejected the complaint as untimely. Jensen appealed this decision to the postal service's Office of Review and Appeals (ORA) on November 25, 1983. By letter of October 22, 1984, the ORA affirmed the postal service's decision and advised Jensen that he had 30 days to bring a Title VII action in federal court. See 42 U.S.C. Sec. 2000e-16(c); see also Soto v. United States Postal Service, 905 F.2d 537, 539 (1st Cir.1990). Appellant did not sue at that time.

On May 9, 1984, while Jensen's appeal was pending before the ORA, Jensen again contacted an EEO counselor concerning his dismissal. In subsequent informal and formal complaints (the latter dated June 13, 1984), he again alleged that he had been discriminated against because of his national origin. On these occasions, he listed his national origin as simply "Lithuanian" and stated that the incident giving rise to the complaint occurred on April 24, 1984--the date when the post office agreed to reduce the penalty imposed on John Macaruso, another postal employee who had supposedly violated section 661.56. 3 Jensen alleged that the disparity in treatment constituted national origin discrimination because both Macaruso and the Worcester postmaster, Andrew Sacco, were Italian, whereas he (Jensen) was Lithuanian. The burden of appellant's complaint was that Sacco, and hence, the postal service, treated Italians more favorably than non-Italians (including Lithuanians).

On August 22, 1984, the postal service rejected the neoteric complaint because it necessarily related back to appellant's own removal in early 1983, and thus, was not seasonably filed. Jensen's appeal to the ORA was overruled on June 26, 1985. He then brought suit. The district court entered summary judgment on the ground that Jensen failed to contact an EEO counselor within 30 days of receiving notice that he would be removed from the postal service. This proceeding ensued.

II. THE DISCRIMINATION CLAIM

Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding such a motion, it is incumbent upon the district court to consider the record in the light most flattering to the nonmovant, "indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). We, in turn, apply the same standard, vacating a grant of summary judgment if we determine that issues of fact, adequately raised and documented below, need to be resolved before the dispositive legal issues can be adjudicated. Mack v. Great Atlantic & Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989). Issues of timely filing may be decided under Rule 56 if the relevant facts are sufficiently clear. See Doyle v. Shubs, 905 F.2d 1, 1 (1st Cir.1990) (per curiam); Kali Seafood, Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir.1989); Mack, 871 F.2d at 181.

Title VII requires exhaustion of administrative remedies as a condition precedent to suit in federal district court. See Brown v. General Services Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). The law is clear that a federal employee filing a Title VII action must contact an EEO counselor within 30 days of the event that triggers his claim. See 29 C.F.R. Sec. 1613.214, supra note 1. Jensen concedes that no discriminatory act occurred within 30 days next preceding June 22, 1983 (the date of his initial contact with an EEO counselor). Although he did not timely engage the gears of administrative relief at that point--or, for that matter, sue within the prescribed period--Jensen could still defeat the motion for summary judgment in one of two ways: by raising a litigable fact question as to whether he suffered discrimination at defendant's hands within the 30 days prior to May 9, 1984 (the date he recontacted the EEO); or, given that the 30-day rule is not jurisdictional, by showing that facts existed which, if believed, would justify tolling the 30-day look-and-see period, and the prescriptive period regarding suit, vis-a-vis the original "violation." See Mack, 871 F.2d at 181-82.

Jensen tries valiantly to climb this mountain. First, he argues that the disposition of Macaruso's case on April 24, 1984 was the matter that gave rise to his suspicions, thereby triggering his claim and rendering his May 9 complaint timeous. Second, he contends that, because Sacco actively misled him concerning the true basis for his ouster, the limitation period should have been tolled until Macaruso's case had ended (before which time Jensen claims he had no reason to believe that he had been fired for discriminatory reasons). Third, Jensen asseverates that he was the victim of a continuing violation which persisted until the Macaruso affair ran its course. These pitons notwithstanding, he cannot scale the heights.

A. Triggering Event Theory.

It is unarguable that no triggering event took place within the 30-day period immediately preceding April 24, 1984. The only occurrence during this period to which Jensen points is the denouement of the Macaruso affair. Whatever role discrimination may have played in Sacco's treatment of Macaruso, pro or con, this event had no adverse effect on Jensen--who, after all, had been cashiered many months earlier. That ends the matter: favoritism of X, at Y's expense, may confer a cause of action on Y; but favoritism of X, not directly affecting Y, no matter how distasteful, is not actionable in a disparate treatment case brought on Y's behalf. Cf., e.g., Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 57-58 (1st Cir.1990) (discharged employee cannot sue under first amendment based on discrimination directed at a third party).

It is clear that, well before Macaruso settled his differences with the post office, appellant knew enough (or thought he knew enough) to charge, administratively, that Title VII had been transgressed. The prescriptive look-and-see period had, therefore, begun to run. At the most, the Macaruso affair gave rise to useful evidence which might have been pertinent to Jensen's case, had one been pending. The incident cannot, however, be viewed, as actionable conduct vis-a-vis appellant or as a distinct violation of appellant's long-expired rights.

B. Equitable Tolling Theory.

By the same token, there was no basis for a claim of equitable tolling. Jensen argues that the district court should have relaxed the look-and-see period because he could not have learned the true motive underlying his discharge until the culmination of the Macaruso arbitration. The problem was exacerbated, Jensen contends, because the post office engaged in affirmative misconduct, e.g., misrepresenting the ground for cashiering him and delaying Macaruso's arbitration until the employment decision in Jensen's case had become final and unappealable.

This court has respected Title VII's...

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