Leong v. Potter
| Decision Date | 29 October 2003 |
| Docket Number | No. 02-16856.,02-16856. |
| Citation | 347 F.3d 1117 |
| Parties | Jimmy LEONG, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Russell Rowen, Lerner & Veit, P.C., San Francisco, California, for the plaintiff-appellant.
Abraham Simmons, United States Attorney's Office, San Francisco, California, for the defendant-appellee.
Appeal from the United States District Court for the Northern District of California; Elizabeth D. Laporte, Magistrate, Presiding. D.C. No. CV-01-00925-EDL.
Before: Procter Hug, Jr., Betty B. Fletcher, and A. Wallace Tashima, Circuit Judges.
The United States Postal Service ("USPS") terminated plaintiff-appellant Jimmy Leong's employment in 1999. Leong sued, alleging that USPS discriminated against him on the basis of his race, color, religion, sex, and/or national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, as well as on the basis of his mental disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court dismissed Leong's Rehabilitation Act claim for lack of subject matter jurisdiction because he did not exhaust administrative remedies as to that claim, and it granted summary judgment in favor of the defendant on his Title VII claims. Leong appeals both decisions. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Leong is a Burmese immigrant of Chinese ancestry who came to the United States in 1982. He began working at the San Francisco Bulk Mail Center in 1991. During the course of his employment, he was reprimanded and suspended various times for cursing at supervisors, refusing to follow directions, and other violations of Postal Service rules.
USPS issued Leong a Notice of Removal on September 2, 1997 after he arrived late and intoxicated, yelled and swore at various supervisors, and then left work during his shift on August 19, 1997. Leong's union helped him negotiate a "Last Chance Agreement," which allowed Leong to continue working for USPS if he followed certain conditions specified in the agreement and did not break other work rules. In late 1998 and early 1999, various co-workers complained that Leong cursed at them and obstructed their work. On January 28, 1999, USPS issued Leong a Notice of Removal, citing his violation of the Last Chance Agreement and various postal service rules, considered in light of three earlier suspensions.
In March 1999, after his termination became effective, Leong requested a meeting with an Equal Employment Opportunity ("EEO") counselor at the Bulk Mail Center. Because Leong was no longer employed with the Postal Service, he was not able to meet with the counselor in person, but he submitted an affidavit to the Equal Employment Opportunity Commission ("EEOC") stating that he believes the Postal Service discriminated against him on the basis of his race, color, religion, sex, national origin, and/or age. Leong's affidavit does not mention disability.
On March 5, 2001, Leong filed a pro se Title VII complaint in the Northern District of California. On January 22, 2002, Leong, represented by counsel, filed an amended complaint, adding his disability discrimination claim under the Rehabilitation Act. The amended complaint alleged that Leong is disabled because he suffers from depression and language and speech processing difficulties. Leong was diagnosed with schizotypal personality disorder in June 2002, and this disability now provides the basis for his disability discrimination claim. On August 2, 2002, the district court dismissed his disability complaint for lack of subject matter jurisdiction, holding that Leong failed to exhaust administrative remedies as to his disability complaint because he never alleged disability discrimination during the EEOC investigation. Additionally, the district court granted USPS summary judgment on Leong's Title VII claims. Leong timely filed an appeal to this Court.
The district court's determination that it lacks subject matter jurisdiction because the plaintiff failed to exhaust administrative remedies is reviewed de novo. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir.2002). If the district court correctly determines its jurisdiction, the court's decision whether to apply equitable tolling or equitable estoppel is reviewed for abuse of discretion. Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir.2000).
The district court properly held that Leong was required to exhaust his administrative remedies with the EEOC before pursuing his Rehabilitation Act claim in district court. Leorna v. U.S. Dep't of State, 105 F.3d 548, 550 (9th Cir.1997); Vinieratos v. United States, 939 F.2d 762, 773 (9th Cir.1991). A claimant must consult an EEO counselor in order to attempt to resolve a dispute informally before resorting to litigation. Leorna, 105 F.3d at 550.
Although failure to file an EEOC complaint is not a complete bar to district court jurisdiction, substantial compliance with the exhaustion requirement is a jurisdictional pre-requisite. Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). The jurisdictional scope of the plaintiff's court action depends on the scope of the EEOC charge and investigation. EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994); Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990). The specific claims made in district court ordinarily must be presented to the EEOC. Albano v. Schering-Plough Corp., 912 F.2d 384, 385 (9th Cir.1990). However, the district court has jurisdiction over any charges of discrimination that are "like or reasonably related to" the allegations made before the EEOC, as well as charges that are within the scope of an EEOC investigation that reasonably could be expected to grow out of the allegations. Sosa, 920 F.2d at 1456.
The district court did not consider whether Leong's disability claim is "like or reasonably related to" the claims he presented to the EEOC. Sommatino, 255 F.3d at 708; Sosa, 920 F.2d at 1456. However, any error is harmless, as Leong's disability claim differs substantially from the claims he presented to the EEOC. Construing his EEOC charge with utmost liberality, we conclude that it does not satisfy the exhaustion requirement.
Leong never attempted to amend his EEOC charge to reflect his Rehabilitation Act claim. Leong's disability claim relies on a different theory and a different statute than his other claims. Disability discrimination was not investigated by the EEOC, and such an investigation could not have been reasonably expected to grow out of Leong's charges. Nothing in Leong's affidavit would have led the EEOC to suspect that he was disabled or had been subjected to disability discrimination. Leong stated in his EEOC affidavit:
I have no idea why the management provide for this action. No. I do not have any evidence that management's reason for their action ... is excuse. No. I do not have any witnesses with first-hand pertinent knowledge of this incident. No. I have no comment for any derogatory or negative remarks made by the management ... concerning my race, color, religion, sex, national origin, [or] age.
Furthermore, Leong's charges do not provide the Postal Service adequate notice of his disability discrimination claim or that a voluntary settlement of his claim might be possible through reasonable accommodation of his mental illness. See Farmer Bros., 31 F.3d at 899 ().
A decision that an EEOC complaint with no mention whatsoever of disability is "like or reasonably related to" Leong's disability claim would reduce the exhaustion requirement to a formality. Although "the EEOC charge does not demand procedural exactness," Sosa, 920 F.2d at 1458, it requires something more than Leong provided. Therefore, the district court did not err in finding that Leong failed to exhaust his administrative remedies for his claim under the Rehabilitation Act.
The exhaustion requirement is akin to a statute of limitations and is subject to waiver, equitable estoppel, and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir.1985). Leong argues that the district court erred in not employing the doctrine of equitable estoppel or equitable tolling to allow his claim. We conclude that the district court did not abuse its discretion by not granting Leong equitable relief.
Equitable estoppel focuses on the defendant's wrongful actions preventing the plaintiff from asserting his claim. Santa Maria, 202 F.3d at 1176. Leong argues that the Postal Service wrongfully prevented him from asserting his claim by not permitting him to enter his former work site to meet with an EEO counselor. The district court found that there is no triable issue of fact that the defendant wrongfully prevented Leong from asserting his claim. Leong did not attempt to seek EEO counseling until more than a month after receiving his Notice of Removal. There is nothing unusual about not allowing terminated employees access to their former work sites, especially where an employee was terminated for repeated obscene and threatening behavior. There is no evidence that the Postal Service refused to let Leong enter his former job site because he wished to speak with an EEO counselor.
Furthermore, there is no evidence that meeting with the EEO counselor in person would have helped Leong advance his claim. Appellant...
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