Rennie v. Garrett, 89-1932

• Decision Date: 26 February 1990
• Docket Number: No. 89-1932,89-1932
• Citation: 896 F.2d 1057
• Parties: 54 Fair Empl.Prac.Cas. 932, 52 Empl. Prac. Dec. P 39,706 Mary Ann Carter RENNIE, Plaintiff-Appellant, v. H. Lawrence GARRETT III, 1 Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1057

896 F.2d 1057

54 Fair Empl.Prac.Cas. 932,

52 Empl. Prac. Dec. P 39,706

Mary Ann Carter RENNIE, Plaintiff-Appellant, v. H. Lawrence GARRETT III, ¹ Secretary of the Navy,

Defendant-Appellee.

No. 89-1932.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 7, 1989.

Decided Feb. 26, 1990. ²

Richard L. Darst, Mantel, Cohen, Garelick, Reiswerg & Fishman, Indianapolis, Ind., for plaintiff-appellant.

Harold R. Bickham, Asst. U.S. Atty., Indianapolis, Ind., for defendant-appellee.

Before BAUER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges.

CUMMINGS, Circuit Judge.

This appeal from the dismissal of a Title VII retaliation claim requires reevaluation of this Court's earlier holding in Sims v. Heckler, 725 F.2d 1143 (7th Cir.1984). In Sims this Court held that a federal employee who fails to bring an employment discrimination claim to the attention of an Equal Employment Opportunity Counselor (EEO counselor) within thirty days of the alleged discriminatory conduct cannot invoke the jurisdiction of the federal courts. It is settled law that a federal court determining whether it has jurisdiction may look beyond the face of the plaintiff's complaint to resolve factual disputes. See, e.g., McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Grafon Corp. v. Hausermann, 602 F.2d 781, 783 (7th Cir.1979). Relying on these precedents, the district judge in the case under consideration dismissed a federal employee's Title VII retaliation claim for lack of subject matter jurisdiction, stating that he disbelieved the employee's allegation that she had timely brought that claim to the attention of an EEO counselor. Because this Court's holding in Sims has been rejected by the other circuits, and because of the apparent injustice produced by the combination of the holdings in Sims and McNutt, the decision in Sims is overruled and this case is remanded to the district court.

I. Background

Mary Ann Carter Rennie was hired by the Navy at the Naval Avionics Center in Indianapolis, Indiana on March 19, 1982. Incident to her position as Electronics Mechanical Helper she was required to take and pass a solderfication course. She passed the written course examination, but was informed by her male instructor, J.J. Cafrelli, that she had failed the "practical portion" of the course. Rennie was subsequently discharged on or about May 8, 1982.

On September 5, 1986, Rennie filed a complaint in the United States District Court for the Southern District of Indiana alleging sex discrimination and harassment and retaliation on the part of her employer. With respect to sex discrimination and harassment the complaint alleged that her instructor Cafrelli had requested that she sit in the front row of the class, had addressed sexually oriented jokes to her, had touched her offensively on numerous occasions, and had graded her work lower than other students when she failed to submit to his advances. The complaint also alleged that Rennie had complained about sex discrimination and harassment to the EEO counselor for the Naval Avionics Center on May 6, 1982. With respect to retaliation the complaint alleged that the defendant refused to place Rennie in another work position in retaliation for her complaint to the EEO counselor about sex discrimination and harassment. The complaint did not state that Rennie had returned to the EEO counselor after May 6, 1982, to complain about retaliation. On March 29, 1988, the district judge entered an order dismissing Rennie's retaliation claim, relying on the Sims requirement that a federal employee must exhaust administrative remedies, including a timely complaint to the EEO counselor, in order to invoke the jurisdiction of the federal courts. Rennie's sex discrimination and harassment claim is still before the district court but has been stayed pending disposition of this appeal.

On June 7, 1988, Rennie filed a second complaint. This complaint repeated the allegations of the first complaint and added an allegation that Rennie had consulted with an EEO counselor about her retaliation claim on May 11, 1982. This complaint also added a continuing discrimination claim. ³

On March 2, 1989, the district judge entered an order dismissing this second complaint for failing properly to invoke the jurisdiction of the federal courts. The district court acknowledged that Rennie's second complaint properly alleged that she had brought her retaliation claim to the attention of an EEO counselor within the prescribed thirty-day period. The court relied on this Court's Grafon opinion, however, to look beyond the face of Rennie's complaint to determine the veracity of this allegation. The district court credited an affidavit submitted by the defendant during the disposition of Rennie's first complaint to determine that Rennie had not in fact raised the subject of retaliation at the May 11, 1982, meeting with the EEO counselor. Having thus concluded that Rennie's retaliation claim was not timely presented to the EEO counselor, the district judge dismissed the second complaint in its entirety on jurisdictional grounds but left in effect the first complaint insofar as it was based on sex discrimination and harassment. On March 29, 1989, he entered an order stating that the dismissal of the second complaint was final, and Rennie's notice of appeal followed on April 28, 1989.

II. Discussion

In 1964, Congress passed Title VII of the Civil Rights Act in an effort to secure equality of opportunity in employment regardless of race, color, religion, sex, or national origin. Title VII was amended in 1972 to extend the protection of the Act to employees of the federal government. A federal employee seeking relief under the current provisions of Title VII faces three separate time limits. The first two are imposed by the regulations promulgated under the authority of the statute and the third is imposed by the statute itself. Under the first, a federal employee must bring any complaint to the attention of an EEO counselor within thirty days of the occurrence of the conduct giving rise to the complaint. 29 C.F.R. Sec. 1613.214(a)(1)(i). If the complaint cannot be resolved informally by the EEO counselor, then the federal employer will issue a notice of a right to file a complaint to be processed administratively. The second time limit provides that the federal employee must file a formal written complaint with the agency's Director of Equal Opportunity or other designated official within fifteen days after the receipt of the notice of a right to file a complaint. 29 C.F.R. Sec. 1613.214(a)(1)(ii). The third time limit provides that any appeal to the federal district court of a department or agency disposition of a claim must be filed within thirty days of notice of final action taken by the department or agency. 42 U.S.C. Sec. 2000e-16(c). This statutory section also provides that the complainant may file an appeal in federal district court within 180 days of the date on which the formal agency or department complaint was filed if the agency or department has failed to take action on the complaint. The first of these three time limits is at issue in this case. The Navy asserts that Rennie never complained to the EEO counselor about retaliation. Rennie's second pleading asserts that she complained to the counselor about retaliation on May 11, 1982.

The circuits have disagreed over whether these time limits should be construed as jurisdictional prerequisites to suit against the federal government or as statutes of limitations. ⁴ In the closely related area of administrative deadlines in suits against private employers, the Supreme Court has held that such administrative deadlines are not jurisdictional but function like statutes of limitations that are "subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982). All the other circuits considering the question have extended Zipes to cover suits against federal employers. ⁵ See, e.g. Hornsby v. United States Postal Service, 787 F.2d 87 (3d Cir.1986); Zografov v. V.A. Medical Center, 779 F.2d 967 (4th Cir.1985); Henderson v. United States Veterans Administration, 790 F.2d 436 (5th Cir.1986); Boddy v. Dean, 821 F.2d 346 (6th Cir.1987); Warren v. Department of the Army, 867 F.2d 1156 (8th Cir.1989); Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647 (9th Cir.1989); Martinez v. Orr, 738 F.2d 1107 (10th Cir.1984); Miller v. Marsh, 766 F.2d 490 (11th Cir.1985); Brown v. Marsh, 777 F.2d 8 (D.C.Cir.1985). While the First and Second Circuits have yet to resolve this issue, ⁶ district courts in those circuits have extended Zipes to cases involving federal defendants. See Neves v. Kolaski, 602 F.Supp. 645 (D.R.I.1985); DiMaggio v. United States Postal Service, 643 F.Supp. 1 (D.Conn.1984).

In Sims the plaintiff was a federal employee who brought suit alleging racial discrimination in violation of Title VII. The district court dismissed the plaintiff's complaint for lack of jurisdiction on the ground that the plaintiff failed to comply with the thirty-day administrative deadline of 29 C.F.R. Sec. 1613.214(a)(1)(i). This Court affirmed the dismissal and distinguished Zipes on the ground that suits against private employers do not raise the sovereign immunity concerns that arise in suits against the federal government. "Giving [Section 1613.214(a)(1)(i) ] the force and effect of law, we hold that it constitutes one of the terms of the sovereign's consent to be sued and, as such, defines the district court's jurisdiction." Sims, 725 F.2d at 1146. When Sims was decided, no other circuit court had explicitly considered sovereign immunity concerns in construing Title VII's time limits. In the meantime, however, several courts have explicitly subordinated sovereignty concerns to the goals of Title VII. See, e.g., Johnson v. Burnley,...