Robbins v. Bentsen

• Decision Date: 08 December 1994
• Docket Number: Nos. 94-1743,94-1744,s. 94-1743
• Citation: 41 F.3d 1195
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 295 V. Carol ROBBINS, Plaintiff-Appellant, v. Lloyd BENTSEN in his capacity as Secretary of the Treasury, Defendant-Appellee. V. Carol ROBBINS, Plaintiff-Appellant, v. Keith FAUST, Joe Williams and Donald Werner, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1195

41 F.3d 1195

68 Fair Empl.Prac.Cas. (BNA) 295

V. Carol ROBBINS, Plaintiff-Appellant, v. Lloyd BENTSEN in his capacity as Secretary of the Treasury,

Defendant-Appellee.

V. Carol ROBBINS, Plaintiff-Appellant, v. Keith FAUST, Joe Williams and Donald Werner, Defendants-Appellees.

Nos. 94-1743, 94-1744.

United States Court of Appeals Seventh Circuit.

Argued Oct. 26, 1994.

Decided Dec. 8, 1994.

James P. Baker (argued), Springfield, IL, for plaintiff-appellant.

James A. Lewis, Elizabeth L. Collins (argued), Asst. U.S. Attys., Springfield, IL, for defendants-appellees.

Before FLAUM and KANNE, Circuit Judges, and WILL, ^* District Judge.

FLAUM, Circuit Judge.

Plaintiff V. Carol Robbins brought suit against her employers and supervisors at the Internal Revenue Service in two separate civil actions. She alleged in the first an employment discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-5. She alleged in the second that her supervisors had violated her rights under the First and Fifth Amendments by removing her from a supervisory position and initiating an unwarranted investigation against her. The district court dismissed both complaints for failure to state a claim upon which relief could be granted, and we now affirm.

I.

V. Carol Robbins has worked for the Internal Revenue Service ("IRS") since 1979 as a Revenue Agent in the Examination Division of the Springfield District. During 1990 and 1991, Robbins was a Team Coordinator in the examination of a large corporate taxpayer. As Team Coordinator, Robbins was responsible for organizing, coordinating and supervising the individuals who participated in the examination. In the course of this examination, Robbins came into possession of certain taxpayer documents she should not have had and retained them for a number of days. Shortly after this incident, in October 1991, Robbins's superiors removed her as Team Coordinator. Robbins then requested the Inspection Division of the IRS to investigate certain perceived improprieties by her superiors in the same taxpayer examination. These superiors, in turn, either recommended or consented to and approved of a criminal investigation of Robbins by the IRS's Inspection Division because of her retaining the documents.

On October 31, 1991, Robbins filed with the Regional Complaint Center of the United States Department of the Treasury an administrative complaint alleging discriminatory employment treatment. After receiving no decision on the administrative complaint within 180 days, Robbins filed a employment discrimination claim ("Robbins I") in two counts against the Secretary of the Treasury in the United States District Court for the Central District of Illinois on July 29, 1992. She alleged in Count I that she had been passed over for a promotion in retaliation for her pursuit of a gender discrimination claim in 1989. She alleged in Count II that her superiors had removed her as Team Coordinator in October 1991, and initiated a retaliatory investigation of her activities during this time because of the 1989 gender discrimination claim as well as a subsequent 1991 discrimination claim.

On October 30, 1992, the Treasury Department notified Robbins that it was terminating the processing of her administrative complaint because Robbins had filed a civil action in a district court based on the same matters. The Department also informed Robbins:

If you are dissatisfied with this decision, you are entitled to file a civil action in the appropriate United States District Court, OR, you may first file an appeal with the Equal Employment Opportunity Commission (EEOC)....

If you choose to file a civil action, the action MUST be filed with the Clerk of the appropriate U.S. District Court WITHIN NINETY (90) CALENDAR DAYS OF THE DATE on which you receive this decision. The Department cannot extend this time limit.

(emphasis in original).

On May 29, 1993, the district court dismissed Robbins I for failure to serve the United States within 120 days, pursuant to Fed.R.Civ.P. 4(j). Robbins v. Brady, 149 F.R.D. 154 (C.D.Ill.1993). Consequently, Robbins filed a complaint identical to Count I in Robbins I on August 25, 1993. ("Robbins II") The government moved to dismiss Robbins II on the grounds that it had been filed more than 90 days after the October 20, 1992 notice. Moreover, they argued, even if the 90 day period had been equitably tolled during the pendency of Robbins I, Robbins II was filed more than 90 days after the dismissal of Robbins I.

Robbins filed Robbins III on October 7, 1993. In allegations similar to those outlined in Count II of Robbins I, Robbins sought damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against the superiors who had removed her from her Team Coordinator post and initiated the investigation. Robbins alleged that her superiors had violated her rights under the First and Fifth Amendments by removing her without notice or a hearing and then initiating an investigation against her in response to her speaking out during the 1991 taxpayer examination. Arguing that Robbins could not bring this Bivens action, the superiors moved to dismiss Robbins III for failure to state a claim for which relief could be granted under Fed.R.Civ.P. 12(b)(6).

The district court dismissed both Robbins II and Robbins III. In Robbins II, the court found that the October 20, 1992, agency letter to Robbins did constitute a final decision and thus that the complaint was time-barred. The court determined in Robbins III that Robbins had an adequate administrative remedy for her claims and that the Supreme Court's decision in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), therefore prevented her from bringing a Bivens action. This consolidated appeal of both dismissals followed.

II.

Robbins II presents the question whether an agency's dismissal of an administrative investigation of an employment discrimination claim without a decision on the merits constitutes a "final action" for the purposes of Section 717(c) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16, and its attendant regulations. The issue is a matter of first impression for this or any other circuit. ¹

Section 2000e-16 explicitly limits the time within which a party may file an employment discrimination case against the federal government Within 90 days of receipt of notice of final action taken by a[n] ... agency, ... or after one hundred and eighty days from the filing of the initial charge with the ... agency, ... if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action....

42 U.S.C. Sec. 2000e-16(c).

In addition to Sec. 2000e-16(c), several regulations also address the relevant time limits for the filing of federal employment discrimination suits, although the parties dispute which set of regulations governs the cancellation of Robbins's claim: 29 C.F.R. Sec. 1613 or 29 C.F.R. Sec. 1614. When Robbins filed her claim on October 31, 1991, the section 1613 regulations clearly governed the matter. However, when the Equal Employment Opportunity Commission ("EEOC") promulgated Sec. 1614 on April 10, 1992, it stated in the preamble that "Complaints filed under 29 C.F.R. 1613 will be processed under the procedures of this part ..." with certain exceptions and qualifications not relevant to the present case. 57 F.R. 12646 (1992). Because the agency issued its dismissal notice to Robbins on October 20, 1992, section 1614 rather than 1613 applies to the dismissal of Robbins's complaint. ²

Section 1614 potentially affects Robbins's case in two ways. First, section 1614.107(c) requires that once an employee has filed a civil action, the agency shall dismiss the complaint "[t]hat is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint...." 29 C.F.R. Sec. 1614.107(c). Dismissals of complaints are appealable to the Commission, but any appeal must be filed within 30 days of receipt of notice of the dismissal. 29 C.F.R. Secs. 1614.401(a), 1614.402(a).

Second, the regulations provide that an employee who has filed an individual complaint may file such an action "[a]fter 180 days from the date of filing an individual or class complaint if an appeal has not been filed and a final decision has not been issued." 29 C.F.R. Sec. 1614.408(b). Additionally, if a final decision has been issued, employees must file a civil action within 90 days of that decision. 29 C.F.R. Sec. 1614.408(a). The regulations stipulate that final decisions "shall consist of findings by the agency on the merits of each issue in the complaint...." 29 C.F.R. Sec. 1614.110.

We are thus faced with a statute that speaks of a "final action" and a "final disposition," regulations that speak of "final decisions," and comparably little guidance as to how to reconcile the two. Robbins argues that the language and structure of Sec. 1614 indicates that only final decisions on the merits commence Title VII's 90-day limitation period. She contends that the agency dismissal was not a final decision under the regulations because the dismissal did not contain any findings on any merits of any issue. Therefore, Robbins concludes, the 90-day limitation period does not apply to her case. The government replies that the dismissal was clearly a "final action" under the plain language of the statute, that "final decisions" under Sec. 1614.110 do not exclusively constitute the set of "final actions," that the agency considered its action final as indicated by the letter the agency sent to Robbins informing her of the dismissal, and that the letter put Robbins on notice that the ninety-day limitations period had begun to run.

We...