Wilson v. Secretary, Dept. of Veterans Affairs on Behalf of Veterans Canteen Services

• Decision Date: 23 August 1995
• Docket Number: No. 95-30060,95-30060
• Citation: 65 F.3d 402
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 107, 69 Fair Empl.Prac.Cas. (BNA) 740, 67 Empl. Prac. Dec. P 43,862 Freddie M. WILSON, Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, on Behalf of VETERANS CANTEEN SERVICES, et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 402

65 F.3d 402

69 Fair Empl.Prac.Cas. (BNA) 107,

69 Fair Empl.Prac.Cas. (BNA) 740,

67 Empl. Prac. Dec. P 43,862

Freddie M. WILSON, Plaintiff-Appellant, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, on Behalf of VETERANS CANTEEN SERVICES, et al., Defendants-Appellees.

No. 95-30060

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 23, 1995.

As Amended on Denial of Rehearing Nov. 1, 1995.

Robert M. Hanna, Graves, Graves & Hanna, Shreveport, LA, for plaintiff-appellant.

Michael D. Skinner, John Robert Halliburton, Office of U.S. Attorney, Shreveport, LA, Mark Christopher Niles, Department of Justice, Washington, DC, Marleigh D. Dover, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Freddie Wilson filed an action against Jesse Brown, Secretary of the Department of Veterans Affairs, James Donohoe, Director of Veterans Canteen Services, and Charles Lizyness, alleging violations of Title VII of the Civil Rights Act, 42 U.S.C. Sec. 2000e (1988), and claims under the Federal Tort Claims Act, 28 U.S.C. Secs. 2671-2680 (1988). The district court issued an order dismissing both claims or in the alternative granting summary judgment against Wilson. She appeals the court's ruling on the Title VII claim. We affirm.

I

On December 17, 1991, Wilson filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging that her supervisor had sexually harassed her during her employment with the Department of Veterans Affairs. The EEOC found her application untimely and dismissed her complaint. Wilson's attorney received notice of the EEOC decision on May 3, 1993, and mailed a copy to Wilson in Germany. Wilson received the decision on May 25, 1993, and mailed a letter to the EEOC on May 28, 1993, discussing information relating to her claim. On June 7, 1993, Wilson's attorney submitted a Form 573 to the EEOC, requesting an appeal of the Agency's decision. ¹ The EEOC found that the notice violated the thirty-day time limit on such appeals and denied the appeal. ² Subsequently, Wilson brought this action under Title VII of the Civil Rights Act and the Federal Tort Claims Act. The Secretary moved for summary judgment, arguing that because Wilson's request for appeal had been untimely, she had failed to exhaust her Title VII administrative remedies, thereby barring her from bringing an action in district court. The Secretary also argued that the district court lacked subject matter jurisdiction over the FTCA claim. The district court granted the motion for summary judgment on the Title VII claim, and it dismissed the FTCA claim with prejudice. Wilson now appeals.

II

Wilson contends that the district court should not have granted summary judgment on her Title VII claim, arguing that the Agency erroneously dismissed her appeal because (1) her letter of May 28 was a notice of appeal filed within the statute of limitations, and (2) alternatively, equitable considerations entitle her to a tolling of the statute. We exercise de novo review of the grant of a summary judgment. Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Wilson argues that the EEOC incorrectly decided that her appeal was untimely. "If an EEOC charge is untimely filed, a suit based upon the untimely charge should be dismissed." Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir.1991); Templeton v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir.1979) (per curiam); see also National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir.1994) ("[C]ourts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies.").

We will reverse an agency's interpretation of its regulations only if the decision is arbitrary or capricious. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) ("The scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency."); Wilson v. United States Dep't of Agric., 991 F.2d 1211, 1215 (5th Cir.1993) (looking "at the agency's decision to determine if it was reached in an arbitrary or capricious manner"), cert. denied, --- U.S. ----, 114 S.Ct. 1296, 127 L.Ed.2d 649 (1994). "A decision is arbitrary or capricious only when it is 'so implausible that it could not be ascribed to a difference in view or the product of agency expertise.' " Wilson, 991 F.2d at 1215 (quoting Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43, 103 S.Ct. at 2867). "The agency decision need only have a rational basis, and it does not have to be a decision which the court would have made." Id.

Wilson argues that her letter to the EEOC on May 28 was an appeal and should have satisfied the statute of limitations. EEOC regulations provide that:

The complainant, agent, grievant or individual class claimant (hereinafter complainant) must file an appeal with the Director, Office of Federal Operations, Equal Employment Opportunity Commission, at P.O. Box 19848, Washington, DC 20036, or by personal delivery or facsimile. The complainant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what he or she is appealing.

29 C.F.R. Sec. 1614.403(a).

Wilson asserts nothing more than that this court should consider her letter an appeal. Wilson provides no authority, however, to support excusing her failure to comply with the regulations. Also, the letter did not state that she was appealing the EEOC's decision. We therefore hold that the Commission's decision that Wilson did not file a timely appeal was not arbitrary or capricious.

Wilson alternatively contends that equitable considerations merit a tolling of the thirty-day time limit on filing an appeal to the EEOC. EEOC regulations allow that "[t]he time limits in this part are subject to waiver, estoppel and equitable tolling." 29 C.F.R. Sec. 1614.604(c). A complaining party in a Title VII case bears the burden of providing the justification for application of equitable tolling principles. Nowlin v. RTC, 33 F.3d 498, 503 (5th Cir.1994); Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 644 (5th Cir.1988), cert. denied, 488 U.S. 1007, 109 S.Ct. 789, 102 L.Ed.2d 781 (1989).

In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir.1979), we discussed three possible bases for tolling: (1) the pendency of a suit between the same parties in the wrong forum; (2) plaintiff's unawareness of the facts giving rise to the claim because of the defendant's intentional concealment of them; and (3) the EEOC's misleading the plaintiff about the nature of her rights. See id. at 1302-03. None of these apply in this case, but "Chappell does not hold that these three are the only bases for tolling...." Blumberg, 848 F.2d at 644-45. Therefore, Wilson's inability to satisfy one of the bases for tolling under Chappell is not necessarily fatal to her claim. However, we "have generally been much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458, ...