Oaxaca v. Roscoe, 80-1196

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation641 F.2d 386
Docket NumberNo. 80-1196,80-1196
Parties26 Fair Empl.Prac.Cas. 31, 25 Empl. Prac. Dec. P 31,697 Juan Roberto OAXACA, Plaintiff-Appellant, v. Egger L. ROSCOE, Commissioner of Internal Revenue Service, Defendant-Appellee. . Unit A
Decision Date03 April 1981

Thomas L. Kolker, Austin, Tex., for plaintiff-appellant.

Sidney Powell, Asst. U. S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RUBIN and GARZA, Circuit Judges, and SUTTLE *, District judge.

ALVIN B. RUBIN, Circuit Judge:

The suit of a former Internal Revenue Service employee who contends that the government discriminated against him based on his Mexican national origin was dismissed for lack of subject matter jurisdiction on the ground that the employee failed to bring his complaint to the attention of the Equal Employment Opportunity (EEO) counselor within thirty calendar days as required by the federal nondiscrimination regulations. Concluding that the failure to give timely notice does not deprive the court of subject matter jurisdiction, but raises instead issues that the parties should be given an additional opportunity to address, we reverse the dismissal and remand for further proceedings.

In McArthur v. Southern Airways, Inc., 569 F.2d 276 (5th Cir. 1978) (en banc), we stated that the failure timely to file an administrative complaint with the Equal Employment Opportunity Commission (EEOC) deprives the court of subject matter jurisdiction. The trial court and the parties understandably followed that statement. However, we have now rejected this doctrine and overruled any inference in McArthur that the Title VII time period for filing a discrimination charge with the EEOC implicates the subject matter jurisdiction of the court. Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 591 n.14, (5th Cir. 1981) (en banc) (case involving the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (1975)). See McArthur v. Southern Airways, Inc., 569 F.2d 276, 278-81 (5th Cir. 1978) (Rubin, J. & Vance, J., dissenting).

Although the failure timely to notify the appropriate administrative authority of a discrimination complaint against a federal agency may bar the claim, tardy notification does not deprive the court of jurisdiction of the subject matter, Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, No. 77-2874 (5th Cir. March 23, 1981) (en banc), but instead results in dismissal because the claim lacks merit. Lack of timeliness in notifying the EEO counselor or in filing a written administrative complaint may be waived, 29 C.F.R. § 1613.214(a)(4) (1980), formerly 5 C.F.R. § 713.214(a)(4) (1978), or the commencement of the running of the time period may be subject to equitable delay until the claimant knew or should have known the facts that would give rise to his Title VII claim. Chappell v. Emco Machine Works Co., 601 F.2d 1295, 1303 (5th Cir. 1979); Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978) (federal employee case); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). See also Cooper v. Bell, 628 F.2d 1208, 1212-14 (9th Cir. 1980) (federal employee case). We apply these principles to the facts that the employee, Mr. Oaxaca, might have proved as shown by the pleadings and Oaxaca's affidavit without at this time attempting to determine the merits of Oaxaca's claim.

Oaxaca, a Mexican-American, had been a GS-9 Auditor with the Army Audit Agency when he resigned that position to enter law school. He sought nighttime employment with the IRS by telephone, but was told he would have to take an examination. Both on the phone and at the time Oaxaca took the examination he explained to the IRS representatives that he was a former Civil Service employee with reinstatement rights, but he was informed that he was nevertheless required to take the examination. He passed the examination and was employed part-time by the IRS with a GS-2 classification from March 21, 1977, through May 1, 1977. He applied for a tax examiner's position with a GS-6 rating but limited his application to a position on the four hour night shift. No positions were filled for that shift during the next filing season. On July 25, 1977, Oaxaca's IRS supervisor prepared a performance evaluation giving him a composite score of eighty-four. The supervisor gave him no credit for his prior Civil Service experience because the IRS Service Center gave credit only for prior experience at the Service Center. Although Oaxaca had moved to a new address and had informed the IRS of his change of address, notice of the evaluation was mailed to his old address. Oaxaca contends that he did not receive it.

On April 10, 1978, Oaxaca returned to work at the IRS in his former GS-2 position. That same day he inquired about his performance evaluation and his application for the tax examiner's position. He was informed of his performance evaluation score and that he had not been promoted to the higher rated GS-6 position, but was not informed that the IRS had not filled any positions on the shift he had requested. On April 18, within thirty days of the date he returned to work, Oaxaca notified the EEO counselor that he thought the supervisor discriminated against him in failing to give him the credit due him for his prior Civil Service experience and that the failure of the agency to place him initially in a position with a higher rating as well as the failure to promote him to such a position resulted from discrimination against Oaxaca due to his national origin. Thereafter, he timely filed a formal administrative complaint. Because 180 days had elapsed since Oaxaca filed his administrative complaint and no final agency decision had been rendered, Oaxaca filed this suit in district court. See Section 717(c) of Title VII, 42 U.S.C. § 2000e-16(c) (1972), and 29 C.F.R. § 1613.281 (1980), formerly 5 C.F.R. § 713.281 (1978). After the district court made its determination that subject matter jurisdiction was lacking and dismissed the claim, Oaxaca was notified that the final agency action on his administrative claim was a finding of no discrimination.

Federal law forbids discrimination in all personnel actions affecting federal employees or applicants for employment. Section 717(a) of Title VII, 42 U.S.C. § 2000e-16(a) (1972). The Civil Service Commission previously had the authority, now vested in the EEOC, to enforce the statute and to issue rules and regulations necessary and appropriate to carry out its responsibilities. Section 717(b) of Title VII, 42 U.S.C. § 2000e-16(b) (1972). The regulations 1 require complaints to be submitted in writing and permit an agency to "accept the complaint for processing ... only if ... (t)he complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter...." 29 C.F.R. § 1613.214(a)(1) (1980), formerly 5 C.F.R. § 713.214(a)(1) (1978).

Although Oaxaca did not comply with the thirty-day notice requirement, in other respects he has complied with the regulatory and statutory procedures. He contends that, by accepting and processing his complaint, the agency defendant waived its objection to his failure timely to give notice.

The regulations allow the government agency to extend the thirty-day limit for notification under certain circumstances. 29 C.F.R. § 1613.214(a)(4) (1980), formerly 5 C.F.R. § 713.214(a)(4) (1978), provides:

The agency shall extend the time limits in this section : (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or (ii) for other reasons considered sufficient by the agency. (emphasis added.)

Based on this regulation, we concluded in Huntley v. Department of HEW, 550 F.2d 290, 295 (5th Cir. 1977), that, once the government agency accepts a complaint and acts on it, the time limit mentioned in the regulation for making a complaint to the EEO office of that agency is not mandatory. While this statement in Huntley is unqualified, the agency in that case had not only investigated the complaint but had determined that the complainant had been the victim of discrimination. We think that the Huntley holding is limited to the situation in which the agency has in fact made a finding of discrimination, and we reject Oaxaca's contention that the federal agency, by merely accepting and investigating a tardy complaint, automatically waives its objection to the complainant's failure to comply with the prescribed time delays. 2

In Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978), we again considered the thirty-day limitation applicable to federal employee administrative complaints. The district court had granted the defendant's motion to dismiss because plaintiff did not submit an administrative complaint within thirty days of the alleged discriminatory promotion denial. The opinion in Bickham does not indicate whether the agency had in fact processed the tardy complaint. Therefore, this court's affirmance of the district court's dismissal for what it called "lack of jurisdiction" in Bickham is not necessarily inconsistent with the Huntley holding, although Bickham does not cite Huntley.

Bickham also discusses the possibility of an equitable delay in the commencement of the running of the thirty-day period, applying the principle adopted in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). Reeb involved a private sector employee who failed timely to file a charge with the EEOC. Reeb holds that the time period for filing an EEOC complaint does not begin to run until the facts that would support a charge of discrimination would have been apparent to a person with a...

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