Jessie v. Potter

• Decision Date: 20 February 2008
• Docket Number: No. 07-1050.,07-1050.
• Citation: 516 F.3d 709
• Parties: Vicky E. JESSIE, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

516 F.3d 709

Vicky E. JESSIE, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.

No. 07-1050.

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2007.

Filed: February 20, 2008.

David C. Knieriem, St. Louis, MO, for appellant.

Ray E. Donahue, U.S. Postal Service, Washington, DC, for appellee.

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Vicky E. Jessie appeals from the district court's¹ dismissal of her Title VII complaint alleging discrimination by her employer, the United States Postal Service, in connection with its response to her work-related injuries. The district court held that Jessie's Title VII claim against a federal agency was barred by her failure to contact an Equal Employment Opportunity Counselor within forty-five days of the action of which she complains, see 29 C.F.R. § 1614.105(a)(1) (forty-five day requirement); Bailey v. United States Postal Serv., 208 F.3d 652, 654-55 (8th Cir. 2000) (failure to comply with requirement fatal to Title VII suit against federal agency). Jessie contends that the deadline was tolled because she was "physically and emotionally incapacitated," she was under the influence of prescription narcotics, and she was "unable to take care of herself." Because the record does not substantiate her claim of mental incapacitation, we affirm the district court's entry of judgment for the Postal Service.

Jessie was a letter carrier in St. Charles, Missouri, until she injured her knees on the job in separate incidents in 1997 and 1998. In 1999, she filed a claim for compensation under the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101-8193. The Office of Workers' Compensation Programs, which administers the Act, authorized surgeries and paid her compensation for total disability.

Under the Federal Employees' Compensation Act, if the government offers a partially disabled employee a job suitable in light of the employee's disability, the employee must accept the job or lose his disability benefits. 5 U.S.C. § 8106(c)(2). On February 2, 2000, the Postal Service offered Jessie a position as a modified letter carrier. Jessie declined the position as incompatible with her disabilities. Although the Office of Workers' Compensation Programs terminated her compensation benefits, Jessie was vindicated on appeal when an Office hearing representative reversed the initial determination and reinstated her benefits. On July 27, 2001, the Postal Service offered Jessie a new position of "modified clerk," based on restrictions outlined by her attending physician. Almost immediately thereafter, on July 31, 2001, Jessie pursued a different remedy by applying for disability retirement from the Postal Service, which was ultimately approved on May 23, 2002. Even after applying for retirement, however, Jessie continued to argue that the Postal Service had not offered her a suitable job. On September 25, 2001, the Office of Workers' Compensation Programs again terminated Jessie's workers' compensation benefits on the ground that she had refused an offer of suitable work. This time, Jessie lost her appeal to the Employees' Compensation Appeals Board, and her workers' compensation benefits were finally terminated on September 13, 2005.

On October 18, 2005, shortly after the adverse decision of the Employees' Compensation Appeals Board, Jessie contacted the Postal Service's EEO office for the first time. She alleged discrimination on the bases of race, sex, physical disability, and retaliation, which she alleged occurred on September 13, 2005, when she received the Employees' Compensation Appeals Board's decision denying her claim for compensation. The Postal Service EEO office denied her claim on the ground that it was a collateral attack on the Office of Worker's Compensation decision and therefore did not state a claim cognizable under Title VII.

After the dismissal of her EEO claim, on March 3, 2006, Jessie filed a Title VII complaint in the district court against the Postal Service and John E. Potter, as Postmaster General. Jessie appeared pro se, and her complaint consisted of about three pages of allegations, followed by twenty-eight pages of evidentiary materials. Most of the substantive allegations were in paragraph eight of the complaint, in which she alleged that on and around May 15, 2000, she needed crutches, grab bars, and a wheelchair, but she was told by Postal Service employees that she could not have them at her Post Office branch. She further alleged that this decision was reversed by the Office of Worker's Compensation hearing officer, but that the Postal Service then "bought an opinion from an alleged health care provider." She does not plead what the "alleged health care provider" said in his opinion, but the implication is that he opined that she could work. Paragraph ten listed her injuries, which included "chronic and acute clinical depression, anxiety, post traumatic stress, and eating disorders."

The Postal Service moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and for summary judgment. Jessie filed a response including more than fifty pages of evidentiary material, and the district court granted both the motion to dismiss and the motion for summary judgment. The district court held,

It is undisputed that Plaintiff did not initiate contact with a[n EEO] Counselor in a timely fashion. Plaintiff retired from the Postal Service in May of 2002, but did, not initiate contact with the EEO until October of 2005.

The court rejected Jessie's argument that the period for contacting an EEO counselor was tolled because she was mentally incapacitated, holding, "Plaintiffs condition was not sufficiently dire to excuse a three year lapse." Accordingly, the court granted the summary judgment and dismissed the complaint.

On appeal, Jessie argues that she was "physically and emotionally incapacitated" during the time when she should have contacted the EEO counselor, and therefore the district court erred in entering judgment against her on limitations grounds. Instead, she contends, the district court should have held an evidentiary hearing.

At the outset, we must clarify the procedural question of what kind of order we are reviewing—dismissal for lack of subject-matter jurisdiction, dismissal for failure to state a claim, or summary judgment. Jessie argues that she is entitled to an evidentiary hearing, relying on Briley v. Carlin, 172 F.3d 567, 570-71 (8th Cir. 1999), in which a plaintiff suing a federal agency relied on equitable tolling to obviate the forty-five-day deadline for contacting an EEO counselor. In Briley, the district court considered the motion to dismiss under Fed.R.Civ.P. 12(b)(1), which governs dismissal for lack of subject-matter jurisdiction. Id. at 570. Motions to dismiss for lack of subject-matter jurisdiction can be decided in three ways: at the pleading stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary judgment motion; and on disputed facts. Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir.1990). When a Rule 12(b)(1) ruling resolves disputed facts, the court can take evidence at a hearing, and we review the judge's findings for clear error. Id. at 730. In contrast, a dismissal for failure to state a claim must be decided on the pleadings, Fed.R.Civ.P. 12(b), and a motion for summary judgment may not resolve disputed fact issues, Fed.R.Civ.P. 56(c), and both the latter type of rulings are reviewed de novo on appeal. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697-98 (8th Cir.2003) (Rule 12(b)(6)); Green v. City of St. Louis, 507 F.3d 662, 666 (8th Cir.2007) (summary judgment). In Briley, the district court held a hearing and resolved disputed facts; we affirmed the district court's dismissal under Rule 12(b)(1), reviewing for clear error, but without discussing whether the question was properly one of subject matter jurisdiction. See 172 F.3d at 570-71. However, more recently in Coons v. Mineta, 410 F.3d 1036, 1038-40 (8th Cir.2005), we considered another case in which the district court had dismissed a federal employee's Title VII claim for failure to contact an EEO counselor within forty-five days. There, we observed that in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that the requirement of timely filing an EEOC charge was not a jurisdictional prerequisite under Title VII. 410 F.3d at 1040. Accordingly, in Coons we applied the de novo standard of review appropriate for a Rule 12(b)(6) motion, id. at 1039, and we reversed because the complaint stated facts that supported the inference that the plaintiff did not know a discriminatory action had been taken against him and therefore was entitled to equitable tolling. Id. at 1040-42. We held that the district court could not dismiss such a complaint on the pleadings, but would have to resolve disputed facts. Id. at 1042.

In this case, unlike Briley, the district court did not purport to decide the motion to dismiss under Rule 12(b)(1). There is some ambiguity as to whether the district court dismissed the case under Rule 12(b)(6) for failure to state a claim or entered a Rule 56 summary judgment against Jessie. The opinion states only the standard for a Rule 12(b)(6) motion to dismiss, but the final paragraph purports to grant both the motion to dismiss and the summary judgment motion. Because there are complexities² lurking in the question of whether dismissal under Rule 12(b)(6) would be appropriate for a plaintiffs failure to plead tolling, and because the district court entered summary judgment for the Postal Service as well as the Rule 12(b)(6) dismissal, we will review this case as a summary judgment and leave to another day the question of whether a Rule 12(b)(6) dismissal would also be proper when a plaintiff fails to plead a basis for tolling in...