Walker v. UPS, 99-5159

• Decision Date: 27 February 2001
• Docket Number: No. 99-5159,99-5159
• Citation: 240 F.3d 1268
• Parties: (10th Cir. 2001) TONYA WALKER, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1268

240 F.3d 1268 (10th Cir. 2001)

TONYA WALKER, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.

No. 99-5159

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

February 27, 2001

Appeal from the United States District Court for the Northern District of Oklahoma. (D.C. No. CV-97-1042-BU)

Thomas L. Bright, Tulsa, Oklahoma for Plaintiff-Appellant.

Sam Reynolds Fulkerson (Peter T. Van Dyke on the brief) of McAfee & Taft, Oklahoma City, Oklahoma for Defendant-Appellee.

Before HENRY and BRISCOE, Circuit Judges, and SHADUR, District Judge.^*

SHADUR, District Judge.

Tonya Walker ("Walker") sued her employer United Parcel Service, Inc. ("UPS"), advancing federally-based claims under Title VII of the Civil Rights Act of 1964 as amended ("Title VII," 42 U.S.C. 2000e to 2000e-17) and the Family and Medical Leave Act of 1993 ("FMLA," 29 U.S.C. 2601-2654) and various tort claims under Oklahoma common law.¹ Walker's Title VII claims were based on alleged sexual harassment and on retaliation for filing a claim with the Equal Employment Opportunity Commission ("EEOC"), while her FMLA claim was based on a suspension she received for excessive absenteeism and job abandonment while she was pregnant. As for her three state law claims, Walker voluntarily dismissed two of them, and the third was dismissed via summary judgment. Walker does not appeal from that dismissal.

Walker does appeal from the district court's grant of summary judgment in favor of UPS on her federal claims. She asserts a number of grounds for reversal.

As for her Title VII claim, the district court dismissed it without prejudice because EEOC--in violation of its own regulation ("the Regulation," 29 C.F.R. 1601.28(a)(2))--failed to attach a certificate to Walker's Notice of Right To Sue ("Notice" or "right-to-sue letter") stating that it would be unable to complete its administrative processing of her charge within 180 days of its filing. After Walker then obtained an affidavit from an EEOC enforcement manager stating that the failure to attach the certificate was an oversight, she filed what we treat as a timely Fed. R. Civ. P. ("Rule") 59(e) motion to alter or amend the judgment. Walker now appeals the denial of that motion as well.

On Walker's FMLA claim, the district court granted summary judgment in favor of UPS after finding that Walker had no grounds for relief under the FMLA because (1) she lost no pay or benefits for the alleged violation of her FMLA rights, (2) the FMLA does not provide for nominal damages and (3) she was not entitled to any equitable relief. Walker contends that the district court erred in ruling that nominal damages are not recoverable under the FMLA.

Walker also ascribes two other errors to the district court. First, she complains of the denial of her request to add a claim for constructive discharge under Title VII as untimely, prejudicial and futile. Second, she disputes the district court's award of costs to UPS as the prevailing party.

We first hold that the district court erred in dismissing Walker's Title VII claim based on EEOC's oversight. In that respect we decline to adopt the District of Columbia Circuit's recent holding that the Regulation is invalid, siding instead with the Eleventh and Ninth Circuits in upholding the Regulation. As for the remaining bases for appeal, we agree with the district court that nominal damages are not available under the FMLA and therefore affirm the dismissal of that claim. We also hold that the district court did not abuse its discretion in denying Walker's request to supplement her complaint with a claim for constructive discharge. But because we reverse the summary judgment for UPS on Walker's Title VII claim, we vacate the award of costs for UPS. In sum, we AFFIRM in part and REVERSE in part for the reasons set forth in this opinion.

Background

Walker began working as a UPS driver in 1990. On August 25, 1997 she filed a charge of sex discrimination with EEOC, citing various sexist remarks by her supervisor and alleging that she was disciplined more often than male drivers. On October 3 Walker wrote to EEOC, asking that it issue her a Notice. On October 22 Walker received EEOC's right-to-sue letter, which noted that it was being issued "at the charging party's request." EEOC failed to attach a certificate, as called for in the Regulation, stating that it had determined it would be unable to complete its administrative processing of Walker's charge within 180 days.

On November 6, 1997 Walker filed suit against UPS in an Oklahoma state court. On November 25 UPS timely removed Walker's suit to the federal district court for the Northern District of Oklahoma on the basis of federal question and supplemental jurisdiction.

One month later (on December 24) UPS terminated Walker, citing excessive absenteeism and job abandonment as of December 18. Walker filed a grievance with the local Teamsters union challenging the termination as having violated the FMLA because her absences were pregnancy-related and because she had notified her supervisor on December 18 that she was suffering from morning sickness due to her pregnancy and was unable to drive safely. UPS and the Teamsters union agreed to reduce the termination to a five-day suspension. Thus on January 12, 1998 Walker took a seven-month pregnancy related health leave of absence, with which the five-day suspension ran concurrently.

In March 1998 Walker supplemented her then pending Title VII action against UPS with a claim that the suspension violated her rights under the FMLA. Some months later, in August 1998, Walker returned to work for UPS. Finally, in consequence of what she alleged to be continuing sexual harassment and sex discrimination, Walker resigned on September 19 and began working for Federal Express.

At a district court pretrial conference on October 1, Walker's counsel made an oral request to supplement both her Amended Complaint and the Agreed Pretrial Order with a claim for constructive discharge in violation of Title VII, based on her September 19 resignation. Because the district court found that the late addition of that new claim would unduly prejudice UPS and would be futile because it too would be subject to dismissal based on the incomplete Notice, it denied Walker's motion.

Dismissal of Title VII Claim

Section 2000e-5(f)(1) permits anyone who has filed an EEOC charge to bring a civil action either after EEOC has dismissed the charge or after 180 days if EEOC has not yet filed a civil action or entered into a conciliation agreement. Because of its early recognition that its caseload may be so heavy that it can be determined at an earlier date that no action can be taken on a charge within that 180 day period, in 1977 EEOC issued the Regulation, which authorizes its issuance of a Notice upon a charging party's request before expiration of that period if it is probable that EEOC will be unable to complete its administrative processing of the charge within that time frame. In part the regulation provides that a designated official must not only make such a determination but must also attach a written certificate to that effect to the early Notice. Because the Notice to Walker did not have such a certificate attached, the district court found that Walker's Title VII claims were not properly before it and dismissed the claims without prejudice.

Despite that "without prejudice" label, in real world terms the dismissal was with prejudice because any attempt by Walker to refile her claims after the district court's order was issued would be out of time (Gocolay v. New Mexico Fed. Sav. & Loan Ass'n, 968 F.2d 1017, 1021 (10th Cir. 1992)). That is so because at the time of dismissal well over 300 days had passed since UPS' allegedly unlawful employment practices had occurred and well over 90 days had passed since Walker's right to sue notice was issued (Sections 2000e-5(e)(1) and -5(f)(1)), and because the dismissal was not conditioned on UPS' agreement to waive any limitations defense if Walker were to file suit again after the asserted flaw had been cured. We therefore treat the district court's order as a dismissal with prejudice, keeping in mind that "the law favors the resolution of legal claims on the merits" (Gocolay, 968 F.2d at 1021).

Walker appeals not only the district court's adverse summary judgment ruling on her Title VII claim but also the district court's denial of her "Motion To Reconsider and Vacate the Summary Judgment Granted on Plaintiff's Title VII Claims." Both the parties and the district court have spoken of the latter motion as one brought under Rule 59(e)--an inaccurate label, given the fact that at the time of its filing Walker's FMLA claims were still alive, so that there was then no final judgment in place. But when final judgment was indeed entered on December 7, 1998 (upon the dismissal of the FMLA claims as well), it was entirely appropriate at that point for the district court to treat the motion to reconsider (though filed a few days earlier) as an effective Rule 59(e) motion (see Hilst v. Bowen, 874 F.2d 725, 726 (10th Cir. 1989) (per curiam) and numerous cases cited there).

In any event, as indicated earlier, that motion was based on a corrected Notice that Walker obtained from EEOC (bearing the same date as the original Notice) and on an affidavit that she obtained from EEOC Enforcement Manager Alma J. Anderson stating that Walker's original Notice should have had the required certificate attached. On the ground that with the exercise of due diligence Walker should have been able to obtain the corrected Notice and affidavit before the entry of summary judgment, the district court declined to alter or amend that judgment.

If the only question before us were the propriety of the district court's grant of summary judgment, we would review that grant de novo, applying the same legal standard used by the district court under Rule 56(c) (NLRB v....