Ramirez v. Sec'y, U.S. Dep't of Transp.

• Decision Date: 12 July 2012
• Docket Number: No. 10–15086.,10–15086.
• Citation: 23 Fla. L. Weekly Fed. C 1314,115 Fair Empl.Prac.Cas. (BNA) 711,686 F.3d 1239
• Parties: Cristobal D. RAMIREZ, Plaintiff–Appellant, v. SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

686 F.3d 1239

115 Fair Empl.Prac.Cas. (BNA) 711

23 Fla. L. Weekly Fed. C 1314

Cristobal D. RAMIREZ, Plaintiff–Appellant,

v.SECRETARY, U.S. DEPARTMENT OF TRANSPORTATION, Defendant–Appellee.

No. 10–15086.

United States Court of Appeals, Eleventh Circuit.

July 12, 2012.

John H. Rains, IV, Bondurant, Mixon & Elmore, LLP, Atlanta, GA, for Plaintiff–Appellant.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON and WILSON, Circuit Judges, and VINSON,^* District Judge.

VINSON, District Judge:

The plaintiff in this Title VII employment discrimination case, Cristobal D. Ramirez, represented himself in district court. He survived summary judgment (in part) and proceeded to trial. At the conclusionof the presentation of his evidence, the defendant, Secretary of the U.S. Department of Transportation (“DOT”), orally moved for judgment as matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure. The district court granted the motion on the sole ground that Ramirez's claim was time-barred because he did not contact an Equal Employment Opportunity (“EEO”) Counselor within forty-five days of the alleged discrimination. Ramirez, still appearing in the case pro se, appealed to this court, where he was appointed counsel. Upon review, and with the benefit of counseled briefing and oral argument, we reverse.

I.

The administrative requirements and legal standards for maintaining a Title VII case feature prominently in this appeal and overlap the facts and procedural history of the case. Therefore, to put the case in its proper context, we will begin by briefly discussing those administrative requirements and legal standards.

Title VII prohibits employers—including the federal government—from discriminating against employees on the basis of race or national origin. 42 U.S.C. § 2000e–16(a). Before bringing a Title VII action in court, a federal employee must first seek relief from the agency where the alleged discrimination occurred. Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). “This requirement is not a technicality; ‘[r]ather, it is part and parcel of the congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel primary responsibility for maintaining nondiscrimination in employment.’ ” Grier v. Secretary of Army, 799 F.2d 721, 724 (11th Cir.1986) (quoting Kizas v. Webster, 707 F.2d 524, 544 (D.C.Cir.1983)). In accordance with the congressional design, the Equal Employment Opportunity Commission (“EEOC”) has adopted regulations setting forth the procedure that employees must follow in presenting discrimination claims to federal agencies. See29 C.F.R. § 1614.101 et seq. These regulations provide, inter alia, that an aggrieved employee must “initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory....” 29 C.F.R. § 1614.105(a)(1). The purpose of this counselor-contact requirement is to allow the agency an opportunity to investigate the claim internally and “try to informally resolve the matter.” See29 C.F.R. § 1614.105(a). “Generally, when the claimant does not initiate contact within the 45–day charging period, the claim is barred ....” Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir.2008). However, the 45–day time limit is not jurisdictional; rather, it functions like a statute of limitations, and, “like a statute of limitations, [it] is subject to waiver, 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). The regulations thus provide that the 45–day rule “shall” be extended if the employee “was not notified of the time limits and was not otherwise aware of them ....” See29 C.F.R. § 1614.105(a)(2).

If informal attempts to resolve the complaint are unsuccessful, the employee may file a formal complaint with the agency. 29 C.F.R. § 1614.106. If the agency dismisses the complaint for failure to comply with any of the time limits provided for in the regulations, including the 45–day rule [29 C.F.R. § 1614.107(a)(2) ], the agency will issue a final decision and that decision may be appealed to the EEOC. 29 C.F.R. § 1614.110(b). A decision by the EEOC on appeal is final unless either party files a motion for reconsideration within 30 days. 29 C.F.R. § 1614.405(b). Throughout the administrativeprocess, the employee must provide all relevant and available information so the agency and the EEOC have notice of the claim being pursued and can properly investigate and consider it. See Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.1999).

An employee who has completed the administrative process and obtained an unfavorable final decision may bring a Title VII action in district court, where he is entitled to a de novo review of his complaint. See Moore v. Devine, 780 F.2d 1559, 1562 (11th Cir.1986). To prevail, the employee must first establish a prima facie case and show that (1) he belongs to a protected class; (2) he suffered an adverse job action; (3) the employer treated similarly situated employees (“comparators”) outside his protected class better; and (4) he was qualified for the job. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997).

II.

We review the grant of a Rule 50(a) motion for judgment as matter of law de novo. Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308 (11th Cir.1998). In doing so, we view the evidence in a light most favorable to the non-moving party, and we will affirm only if “ ‘reasonable people could not arrive at a contrary verdict.’ ” See id. (quoting Pulte Home Corp. v. Osmose Wood Preserving, Inc., 60 F.3d 734, 739 (11th Cir.1995)).

The following facts are derived from the evidence admitted during the trial and from Ramirez's deposition testimony. Consistent with the foregoing standard of review, these facts are viewed in the light most favorable to Ramirez.¹

Ramirez is Hispanic and was born in the Dominican Republic. He immigrated to the United States in or about 1977 (after graduating from high school) and joined the Army the same day that he arrived. While in the Army, he was an infantryman and served several tours overseas. In 1981, after sustaining duty-related injuries, he was assigned to the Robert Gray Army Radar Tower in Fort Hood, Texas, where he became an air traffic controller. The Fort Hood tower is a large and very complex “joint-use” radar facility that handles both civilian and military air traffic. After being honorably discharged from the Army in December 1985, Ramirez was classified as a disabled veteran and immediately hired by the United States Department of Defense (“DOD”) as a civilian air traffic controller, a position that he still holds today. He was assigned to Fort Hood, where he worked in the same building as he had in the military. About ten years later, in 1996, he began to apply for air traffic controller positions within the Federal Aviation Administration (“FAA”), an agency of the DOT. He wanted a position in Miami so that he could be closer to his family.

In May 2000, the DOT issued an announcement that it was hiring air traffic controllers in Miami. Ramirez applied for the job under this announcement, which the parties have referred to throughout this litigation as the “A215 announcement,” and he was put on the “selection list.” At the time he applied for this job, Ramirez was not aware that there was a separate announcement for essentially the same air traffic controller position at the Miami facility, which has been generally referred to throughout this case as the “VRA12 announcement.”²

Several months passed and no one from the DOT contacted Ramirez about his application. After waiting months but getting no response, he called the DOT. He spoke with someone there who told him that there was a “hiring freeze” while the agency was “waiting on funding.” Undeterred, Ramirez continued to call the DOT every month to check on the status of his application and provide updated performance evaluations when they became available. In April or May 2001, he learned from a friend who worked as a trainer at the Miami facility that there was no hiring freeze and, in fact, that new employees were being hired “all the time.” Upon hearing this, Ramirez contacted the Hispanic Coalition of Federal Aviation Employees (“Coalition”)—a group within the FAA that advocates for minorities at the agency—and asked them to check on his application. Shortly thereafter, the Coalition discussed the matter with agency officials during a previously-scheduled Southern Region Managers' meeting in June 2001.

In or about September 2001, three months after the Coalition spoke on his behalf, the DOT offered Ramirez an air traffic controller position in Miami, and he quickly accepted. There were a lot of pre-employment forms and paperwork sent along with the contract, and he did not notice at the time that the offer was made under the VRA12 announcement, and not the A215 announcement. Nor did he realize (until several days later, when he looked more closely at the paperwork) that the salary was lower than he expected. Indeed, the offer was for less than he was earning at the DOD. Ramirez researched the applicable pay rules and spoke with people in the Finance Department and Human Resources. Based on what he read and what they told him, he became convinced that the DOT had incorrectly calculated his salary. Over the next several months—before he started the new position—he and Stan Wayland (the DOT official responsible for processing his application) spoke numerous times about the salary. Ramirez repeatedly asked (“practically begg [ed]”) Wayland to look into the issue and recalculate his salary, but Wayland kept telling him “your pay is set” and “that's what your pay is going to be.” Because he was not satisfied with the pay, Ramirez wrote to Wayland on July 12, 2002,...