Tolbert v. U.S.

• Decision Date: 01 November 1990
• Docket Number: No. 90-2136,90-2136
• Citation: 916 F.2d 245
• Parties: 56 Fair Empl.Prac.Cas. 152, 55 Empl. Prac. Dec. P 40,342 Michelle Y. TOLBERT, Plaintiff-Appellant, v. UNITED STATES of America and Preston R. Tisch, in his capacity as Postmaster General of the United States Postal Service, Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 245

916 F.2d 245

56 Fair Empl.Prac.Cas. 152,

55 Empl. Prac. Dec. P 40,342

Michelle Y. TOLBERT, Plaintiff-Appellant, v. UNITED STATES of America and Preston R. Tisch, in his

capacity as Postmaster General of the United

States Postal Service, Defendants-Appellees.

No. 90-2136

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 1, 1990.

Gregg M. Rosenberg, Gregg M. Rosenberg & Associates, Houston, Tex., for plaintiff-appellant.

Robert P. Sindermann, Jr., Office of Labor Law, U.S. Postal Service, Washington, D.C., Henry K. Oncken, U.S. Atty. and Robert Darden, Asst. U.S. Atty., Houston, Tex., for defendants-appellees.

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

Before JOHNSON, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

Michelle Tolbert appeals the dismissal of her Title VII action against her former employer, the Postmaster General of the United States. The district court properly dismissed Tolbert's claim for failure to exhaust her administrative remedies, and its judgment is affirmed.

I. FACTS AND PROCEDURAL HISTORY

The facts material to this appeal are not disputed. Tolbert was an employee of the United States Postal Service from 1979 until she resigned in November 1981. In 1986 Tolbert applied for re-employment; her application was denied in November 1986. In December 1986 she contacted an officer of the Equal Employment Opportunity office of the Postal Service, and in February 1987, over five years after she had resigned from the Postal Service, Tolbert filed a complaint with that office. Her complaint alleged that she had suffered sexual harrassment while employed by the Postal Service, that the harrassment was the cause of her resignation, and that the supervisor who had harrassed her had also caused her application for re-employment to be denied. On February 28, 1987 the Postal Service rejected her complaint.

On March 20, 1987 Tolbert filed a timely appeal of the Postal Service's decision with the Office of Review and Appeals of the Equal Employment Opportunity Commission. Ten days later, on March 30, 1987, before Tolbert received the decision of the EEOC office, and before she had waited 180 days for a decision, Tolbert filed a complaint in federal district court, naming the United States and the Postmaster General as defendants. Her complaint alleged various causes of action, including claims under Title VII, tort claims (invoking the Federal Tort Claims Act), and various deprivations of her constitutional rights.

On June 8, 1987, the defendants filed a motion for summary judgment. Among other things, they argued that Tolbert had neither exhausted her administrative remedies nor complied with the filing deadlines prescribed by law for pursuing a Title VII action. One week later, on June 15, 1987, before the defendants' motion for summary judgment could be heard, the EEOC Office of Review and Appeals issued its decision, affirming the decision of the Postal Service.

The district court referred the summary judgment motion to a magistrate, who recommended that the summary judgment be granted in favor of the defendants as to Tolbert's constitutional claims, her claims under the Federal Tort Claims Act, and all of her Title VII claims growing out of the alleged harrassment in 1981. The magistrate also recommended, however, that summary judgment be denied as to Tolbert's remaining Title VII claims, all of which deal with the denial of re-employment in 1986. Tolbert, the magistrate concluded, should be allowed to pursue those claims.

The defendants objected to this last recommendation. Tolbert did not object to any of the magistrate's recommendations. The district court adopted the recommendations of the magistrate as to the constitutional claims and the FTCA claims, and as to the Title VII claim that related to events in 1981. As to the Title VII claims that related to events in 1986, the district court rejected the magistrate's recommendation to allow the claim to go forward: the court held that Tolbert could not pursue that claim because she had failed to file it at the proper time, and because she had not exhausted her administrative remedies. Tolbert filed a timely notice of appeal.

II. DISCUSSION

Tolbert appeals the district court's grant of summary judgment only as to her claims arising under Title VII. She did not object to the magistrate's recommendation that all of her other claims be dismissed; she has apparently abandoned those claims altogether. As to her Title VII claims, two different standards of review apply. This Court reviews only for plain error the district court's grant of summary judgment against the claim growing out of events in 1981. Tolbert did not object to the magistrate's recommendation that that claim be dismissed; she cannot now attack it. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. Unit B 1982) (en banc). Because the district court did not err in that dismissal, its judgment is affirmed.

As to Tolbert's Title VII claims arising out of events in 1986, the standard of review is more searching. Because the district court did not accept the magistrate's findings on this issue, it is subject to review de novo, as is any grant of summary judgment entered in the first instance by a district court. See USX Corp. v. Tanenbaum, 868 F.2d 1455, 1457 (5th Cir.1989). Since the facts here are undisputed, the question is simply whether the district court had jurisdiction of Tolbert's claim. It did not. There are two requirements for filing a Title VII action in federal court: 1) the complaint must be filed within the time allotted by Title VII, and 2) the complainant must first have exhausted her administrative remedies. Failure to comply with either of these requirements wholly deprives the district court of jurisdiction over the case; it is the well-settled law of this circuit that each requirement is a prerequisite to federal subject matter jurisdiction. See, e.g., Brown v. Dept. of Army, 854 F.2d 77, 78 (5th Cir.1988) ("The thirty-day filing limitation for federal employees is a jurisdictional requirement"); Porter v. Adams, 639 F.2d 273, 276 (5th Cir.1981) ("The exhaustion requirement ... is an absolute prerequisite to suit" under Sec. 2000e-16).

As to the time limitation for filing, Tolbert argues that the cases in this Circuit hold only that it is filing too late, and not too early, which deprives the court of jurisdiction. While this is not a promising argument--it seems obvious that anyone who files too early, has, by definition, filed before she has exhausted her administrative remedies--it need not be pursued here. It is clear that at the time Tolbert filed her action she had not exhausted her administrative remedies; thus, the court had no jurisdiction over the action, and was required to dismiss it.

After the Postal Service denied her claim, Tolbert had a choice as to how to proceed. She could have immediately filed an action in the federal district court. See 29 C.F.R. Sec. 1613.281 (authorizing a civil action after either the initial agency action, or after review of the initial agency action by the EEOC Office of Review and Appeals). Tolbert chose instead to pursue a further administrative remedy, and appealed to the EEOC Office of Review and Appeals. See 29 C.F.R. Sec. 1613.231 (right to appeal initial agency action to EEOC). The question is whether, having chosen to pursue administrative review of the Postal Service's decision, Tolbert must exhaust that remedy, or whether she can abandon it in mid-course, and pursue a civil action instead.

This Court has recently held, as to an action brought under the Age Discrimination in Employment Act, that a complainant who chooses to pursue EEOC review of an initial agency determination must exhaust that avenue of relief before bringing a civil action, White v. Frank, 895 F.2d 243, 244 (5th Cir.1990), and the rule announced in White for ADEA actions applies equal force to Title VII actions.

Initially, it is worth noting that other circuits have held that the same rule of exhaustion applies to Title VII actions. See, e.g., Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988) ("[O]nce a party appeals to a statutory agency, board or commission, the appeal must be 'exhausted.' ... Impatience with the agency does not justify immediate resort to the courts."); Jordan v. United States, 522 F.2d 1128, 1132 (8th Cir.1975). More importantly, though, the decision in White makes clear that because Tolbert had not exhausted her administrative remedies, the federal district court had no jurisdiction over her Title VII action.

In deciding White this Court relied on and adopted the opinion of the district court. 895 F.2d at 243. Tolbert argues that the district court opinion distinguishes between ADEA actions and Title VII actions, and that it held that the exhaustion requirement that applies to ADEA actions does not apply to Title VII actions. The district court opinion does contain some seemingly contradictory language as to whether a Title VII complainant who pursues an appeal to the EEOC must exhaust that appeal before filing suit. See White v. Frank, 718 F.Supp. 592, 595, 597 (W.D.Tex.1989). Nonetheless, a careful reading of White makes clear that there is no contradiction: the rule is the same for actions under the ADEA and Title VII; plaintiffs in Title VII actions who seek EEOC review of the decision of whatever initial agency denied their claim must complete the course of review by the EEOC before filing a civil action.

The district court opinion in White plainly holds that a complainant who chooses to pursue an appeal to the EEOC must exhaust that appeal before filing suit. The court notes that the Title VII regulations "include a strict exhaustion rule," and that

[a]mong these regulations is the rule that...