Watson v. Henderson, Postmaster General of U.S.

• Citation: 222 F.3d 320
• Decision Date: 24 July 2000
• Docket Number: No. 98-3955,98-3955
• Parties: (7th Cir. 2000) Cecil W. Watson, Plaintiff-Appellant, v. William J. Henderson, Postmaster General of the United States, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 320

222 F.3d 320 (7th Cir. 2000)

Cecil W. Watson, Plaintiff-Appellant, v. William J. Henderson, Postmaster General of the United States, Defendant-Appellee.

No. 98-3955

In the United States Court of Appeals For the Seventh Circuit

Argued April 19, 2000

Decided July 24, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7044--David H. Coar, Judge.

Before Posner, Chief Judge, and Coffey and Easterbrook, Circuit Judges.

Easterbrook, Circuit Judge.

A decade ago Cecil Watson applied for a managerial position at a post office. He was turned down, and in 1993 the Equal Employment Opportunity Commission concluded that his race influenced the adverse decision. The EEOC required the Postal Service to promote Watson and restore salary and benefits lost during the interim. (When the Postal Service is the employer, the EEOC has the authority to make decisions that become final unless contested by the agency--and the Postal Service did not contest the EEOC's position, so the EEOC's view became the Postal Service's final agency decision. See 42 U.S.C. sec.2000e-16(b); 29 C.F.R. sec.sec. 1614.109, 1614.110.) But the Postal Service did not promote Watson. His existing position as a supervisor of customer services had been reclassified to pay grade EAS-16 before the EEOC issued its decision, and the Postal Service concluded that this was just as good as promoting him. It gave Watson back pay, but only to the day when he began receiving pay at the EAS-16 rate. He protested to the EEOC, which initially found that he had received his due. But after an administrative appeal the Commission concluded that the record did not permit a confident decision whether the positions of Supervisor, Customer Services, and Manager, Customer Services, are equivalent. It directed the Postal Service to address that question and, if the positions are not equivalent, to promote Watson and afford him "all benefits for make- whole relief (including, but not limited to, backpay and interest)." After the Postal Service informed Watson that it would do nothing further for him, he filed this civil action under sec.2000e-16(c), seeking enforcement of the 1993 decision. Whether sec.2000e-16(c) or the APA, 5 U.S.C. sec.706(1), is the right avenue for a dispute of this kind, see West v. Gibson, 527 U.S. 212, 219 (1999), is an issue that the parties have not addressed, and that we likewise bypass.

After a bench trial, the district court concluded that the two positions are not equivalent--not only because one is higher than the other in the chain of command, but also because the duties and often the salaries differ. It directed the Postal Service to give Watson the next managerial EAS-17 job that becomes available in its Northern Illinois District, and to give Watson the benefits of an EAS-17 position until that promotion occurs. But the court declined to award Watson back pay, or to determine what other benefits (including, perhaps, promotion to EAS-18) Watson would have received had he been promoted in 1990, as he should have been. Accepting the Postal Service's argument, the district court concluded that all forms of relief other than promotion were forfeited when Watson's lawyer failed to file a timely brief in support of his appeal within the EEOC. Under the EEOC's regulations, "[a]ny statement or brief in support of the appeal must be submitted to the Director, Office of Federal Operations, and to the agency within 30 days of filing the appeal." 29 C.F.R. sec.1614.403(d). (Section 1614.403 has been rewritten, effective November 9, 1999, see 64 Fed. Reg. 37644, 37659 (July 12, 1999), but the change does not alter the substance of the quoted provision.) Watson filed his appeal on October 24, 1995, but did not submit a supporting statement until December 4, 1995. The Commission elected not to consider the untimely statement (or a second, wildly out-of-time statement received in April 1996). Because the EEOC disregarded Watson's statements, the district judge concluded, Watson has not exhausted his administrative remedies with respect to the issues discussed in the statements.

On appeal, the Postal Service has confessed error on the subject of exhaustion. In evaluating this new position, we must distinguish two possibilities. First, it may be unnecessary for an appellant ever to present arguments on administrative appeal within the EEOC. That is to say, "issue exhaustion" may be unnecessary, even though it is essential to file with the agency a charge that makes the basic claim of discrimination. The Supreme Court recently reached this conclusion with respect to the Appeals Council of the Social Security Administration, see Sims v. Apfel, 120 S. Ct. 2080 (2000), and because sec.1614.403(d) is an invitation rather than a command to file a statement, the EEOC may receive similar treatment. Second, it may be unimportant what the appellant files if the agency has addressed an issue. That is to say, an issue may be deemed exhausted if either presented to the EEOC in a statement or actually addressed by the agency. An issue neither presented in a statement nor decided by the agency would not be preserved for judicial review--although even then the agency's lawyers could forfeit the benefits of the private party's forfeiture, because an issue-exhaustion requirement is not jurisdictional. See Sims, 120 S. Ct. at 2083 n.1; Gibson v. West, 201 F.3d 990, 993-94 (7th Cir. 2000). (There is a third possibility--that because a federal employee may...