UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
______________________________
No. 96-50030 ______________________________
CATHERINE DICKASON,
Plaintiff-Appellee,
versus
YSLETA INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Texas (EP-93-CV-339) _________________________________________________________________
February 21, 1997 Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:*
At issue is whether, inter alia, Catherine Dickason’s EEOC
charge was timely filed. Because none of the conduct found to be
discriminatory occurred within 300 days of that charge, it was not
timely; and therefore, this action is time-barred. We REVERSE and
RENDER.
I.
Dickason began her employment with the Ysleta Independent
School District (YISD) in 1983. In 1986, she began teaching and
coaching at its Del Valle High School. Dickason was accused in
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1991 by several players and her assistant coach, Sally Fierro, of
mistreating and abusing her players; encouraging them to steal
equipment from other schools; having a non-YISD employee massage
them before games; and administering prescription pain-killers to
a player, in order that the player could participate in a game.
When the Principal received these reports, he notified the
central office, as was YISD policy, and was told to conduct an
investigation, also in accordance with YISD policy. The
investigation included interviewing some of Dickason’s players. On
25 June 1991, one of them, Sandra Sepulveda, gave a written
statement corroborating reports of Dickason’s dispensing
prescription pain-killers to her players, and of Dickason’s having
a friend give a massage to Sepulveda. Similarly, on 17 July, Traci
Kirtley gave a statement that Dickason was abusing the players,
encouraging them to steal equipment, and had pushed Kirtley around
after a game.
After the initial investigation, Dickason was notified on 21
August 1991 that she was suspended with pay pending further
investigation. That 24 September, she was notified that a bottle
of prescription pain-killers had been found in her desk, and that
the possession of prescription medication was added to the charges
against her.
Dickason met with the YISD Superintendent, Dr. Mauro Reyna, on
1 October 1991 and was given an opportunity to respond to the
charges. Dickason received official notice on 10 January 1992 of
- 2 - the five charges against her, of her proposed termination, and of
her right to a due process hearing.
As a result of the ensuing and protracted due process hearing,
Dickason later claimed further discrimination in the form of
onerous conditions of suspension and review of her case, claiming
that YISD conducted a lengthy investigation in which Dickason was
not allowed on the school grounds and therefore could not retrieve
any of the materials which might help her defense; it changed the
charges against her on more than one occasion, and the same charge
disappeared then reappeared just before the hearing, again making
it difficult to prepare a defense; and the hearing process lasted
for six months before ending in settlement on 10 August 1992. The
delay was due to numerous recesses, continuances, etc., in order
for the school board to add witnesses and members to the review
board.
In settling the dispute, Dickason and YISD agreed that the
charges would be dropped, and Dickason would be “voluntarily
assigned” for the 1992-93 school year at another high school as an
instructor in the Dropout Recovery program and as a coach. (The
agreement provided, however, that “[n]othing herein precludes ...
Dickason’s filing suit on any claim.”) After, and pursuant to,
this agreement (and at least until trial in November 1995),
Dickason was the Program Coordinator of the Dropout Recovery
program. But, she declined many coaching positions during school
year 1992-93.
- 3 - On 16 February 1993, Dickason filed her first charge with the
EEOC, claiming that her suspension on 21 August 1991 had caused her
damage; that the assignment with the Dropout Recovery program paid
less than her pre-suspension assignments as a teacher and coach;
and that she “was told that [her] suspension was because of
immorality”, but that she believed it was based instead on
discrimination because of her gender. That July, she filed her
second charge, claiming that she had learned approximately ten days
earlier that she had been denied a promotion to the position of
volleyball coach at another YISD high school; that she had not been
told why; and that she believed the reason for not being selected
was retaliation because of her first (February 1993) EEOC charge.
Shortly after filing her second EEOC charge (for claimed
retaliation), Dickason filed an action in district court against
YISD and her above-referenced assistant coach, Fierro, claiming
violation of Title VII and Title IX of the Civil Rights Act of
1964, and of 42 U.S.C. § 1983.
Defendants were granted summary judgment on the § 1983 claim
in early November 1995, just before trial began; the claim against
Fierro was dropped on the first day of trial. And, when Dickason
completed her case-in-chief, YISD was granted judgment as a matter
of law on the retaliation claim under Title VII and Title IX.
Dickason’s discrimination claim under Title VII against YISD,
however, went to the jury, which found that her sex was a
motivating factor in the decision to suspend her. It awarded
$7,820 for loss of future earnings and $392,180 for pain,
- 4 - suffering, and mental anguish (award reduced to $300,000 pursuant
to the Civil Rights Act of 1991, 42 U.S.C. § 1981a(b)(3)(D)).
II.
Among other challenges to the judgment, YISD contends that the
EEOC charge in issue (for discrimination) was not timely filed.
(As noted, the first charge was for discrimination; the second,
filed five months later, for retaliation. And as discussed, only
the discrimination claim, based on the first charge, was allowed to
go to the jury. Timeliness, premised on the second charge
(retaliation), is not claimed by Dickason; nor would it be a valid
basis for timeliness. Again, the retaliation claim was dismissed
when Dickason completed her case-in-chief.)
In Texas, a charge must be filed with the EEOC within 300 days
of the complained-of action. 42 U.S.C. § 2000(e)-5(d); 29 C.F.R.
§ 1601.70. This period is longer than the normal 180 days, because
Texas has opted to be a “deferral” State, which allows it to expand
the period in this way. If there is no actionable conduct within
the 300 day period preceding the filing of the charge, and no
grounds for finding a “continuing violation” within that period,
then the charge, and the action which arises from it, must both
fail. See Delaware State College v. Ricks, 449 U.S. 250 (1980).
A.
A sub-issue is whether YISD waived this timely filing defense
by failing to raise it in its answer. “[F]iling a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute of
- 5 - limitations, is subject to waiver, estoppel, and equitable
tolling”. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392
(1982). Waiver may occur where the defendant fails to raise the
timeliness issue in its answer. FED. R. CIV. P. 8(c). On the other
hand, “[w]here the matter is raised in the trial court in a manner
that does not result in unfair surprise, ... technical failure to
comply precisely with Rule 8(c) is not fatal”. Allied Chemical
Corp. v. Mackay, 695 F.2d 854, 855-56 (5th Cir. 1983)(citing, Jones
v. Miles, 656 F.2d 103, 107, n.7 (5th Cir. 1981)).
Therefore, YISD did not waive the timeliness issue if it was
raised at trial such that Dickason was not unfairly surprised.
Restated, YISD must have raised the issue at a “‘pragmatically
sufficient time’ and [Dickason] was not prejudiced in [her] ability
to respond” to the issue. Lucas v. United States, 807 F.2d 414,
418 (5th Cir. 1986). An issue may be raised at the “pragmatically
sufficient time” in either of two ways: (1) by both parties’
introducing, without objection, evidence at trial concerning the
issue; and (2) where the issue is a legal one, not requiring
extensive factual analysis, so that the reviewing court may easily
address the issue without reopening trial proceedings. Id. at 418.
Dickason consistently grossly misstated the date of her filing
the first EEOC charge. In her original and first amended
complaints, and in the pretrial order, Dickason claimed that she
had filed it on 27 October 1992. (We note that this date is 290
days after the 10 January 1992 notice to Dickason of the YISD
charges against her, and would put her just inside the requisite
- 6 - 300 days from the last complained of activity.) Dickason also
listed this erroneous date in her pretrial list of contested issues
of fact. She also listed whether she filed within 300 days of the
last act of discrimination as a contested issue. It is little
wonder, then, as discussed infra, that YISD offered evidence on
this issue at trial, and that Dickason did not object to its
admission. Moreover, Dickason was cross-examined about the
timeliness issue, and her attorney questioned her about her reasons
for waiting to file.
In sum, there was notice of the defense, and an opportunity to
present evidence on the issue. Again, when YISD presented the
timeliness evidence, Dickason never objected that it was
irrelevant, as it would have been had the parties not been trying
the timeliness issue.
Also, YISD raised the issue in a post-trial motion for
judgment, and Dickason did not object on the basis of waiver. (Nor
did she do so in her brief here.) Although the trial court stated
summarily in ruling on this motion that it did “not reach the
timeliness issue”, we can state with certainty, based on the
motion, and the evidence at trial on which it relied, that Dickason
was on notice before and during trial that the timeliness of her
first EEOC charge (for discrimination, the only issue submitted to
the jury) was at issue. Further, the application of the timely
filing requirement is not a detailed factual issue which requires
the development of further evidence. Instead, the issue will
depend on what events, according to the jury, constituted
- 7 - violations of Title VII, and when those events occurred in relation
to Dickason’s first EEOC charge filing date. We have in the
record, therefore, all that is required to examine the timeliness
issue.
As discussed, the record reveals that Dickason was well aware
that her late filing was an issue. She alleged, incorrectly, in
her first amended complaint that she had filed her first EEOC
charge on 27 October 1992. (Her original complaint listed the same
erroneous date.) Despite the fact that the date she claimed to
have filed her first EEOC charge would have made the discrimination
claim timely, she complained also, from the early stages of the
litigation, of continuing violations even though she admits that
the procedure she claims constituted a continuing violation, the
due process hearing, resulted in her reinstatement with YISD.
As also noted, Dickason was cross-examined about the timing of
the first EEOC charge without objection. She even offered her own
testimony on the subject, stating she filed the first EEOC charge
so late because she “wasn’t sure what I was going to do. The
charges had finally been dropped and everything”. And as further
noted, Dickason never contended that the timely filing issue was
not raised in YISD’s answer, and on appeal did not even claim a
possible waiver of the timeliness issue, even though YISD raised
the issue in its post-trial motion for judgment (to which she did
not respond that the issue was waived).
Moreover, YISD’s motion for judgment at the close of
Dickason’s case-in-chief contended that many of the asserted bases
- 8 - for Dickason’s discrimination claim were not mentioned in, or
reasonably related to, her first EEOC charge, and therefore were
not cognizable in district court. This, of course, bears on the
timeliness issue, as discussed infra. (The motion also maintained
that Dickason had not made a prima facie showing of retaliation.
As noted, judgment was granted to YISD on the retaliation claim.)
Indeed, it was not until the district court later framed the
possible discrimination bases for the jury interrogatory, as
discussed infra, that the timeliness issue at hand was solidified.
For the jury charge, the court refused to include the due process
hearing, which fell easily within the limitations period, as a
possible basis for discrimination. This jury charge ruling
provided the springboard for the timeliness issue presented in
YISD’s post-verdict motion for judgment. True, this point should
have been advanced earlier in the trial; but, we are not totally
unsympathetic to YISD’s plight during trial as Dickason’s claims
and sub-claims kept shifting and disappearing.
Finally, we note again that Dickason did not raise the waiver
issue in her brief here, and did not object at trial to YISD
questioning her about timely filing. Had she objected at trial,
when YISD was putting on evidence regarding the issue, YISD could
have amended its answer to include the affirmative defense of an
untimely filing. As she did not object then (or even in her brief
on appeal), and based on the record, she has waived, for purposes
of appeal, contesting the belated express assertion by YISD of the
timely filing issue. See Hamilton v. Komatsu Dresser Industries,
- 9 - Inc., 964 F.2d 600, 603 n.1 (7th Cir.) cert. denied, 506 U.S. 916
(1992).
In addition, Dickason tried the issue by consent. That occurs
when both parties recognize that the issue entered the case at
trial; when evidence was entered regarding the issue without
objection; and when a finding of trial by consent would not
prejudice the opposing party. E.g., United States v. Shanbaum, 10
F.3d 305, 312-13 (5th Cir. 1994); Haught v. Maceluch, 681 F.2d 291,
305-06 (5th Cir. 1982). As discussed, both sides knew timeliness
was at issue, as Dickason was examined both on direct and cross on
the issue; this evidence was admitted without objection (in a trial
replete with objections); and this ruling does not prejudice
Dickason, as it merely allows us to examine the timeliness of her
first EEOC charge, an issue she raised and about which she
submitted evidence, and which Title VII instructs us to examine.
In other words, we will not find prejudice to a party under these
circumstances; here the party complaining of failure to raise a
Rule 8(c) defense listed the possible defense pretrial as a
contested issue.
B.
In order to examine the timeliness of Dickason’s first EEOC
charge, we must “identify precisely the ‘unlawful employment
practice’ of which [s]he complains”. Delaware State College, 449
U.S. at 257. Dickason’s first charge was filed on 16 February
1993, more than 500 days after her 21 August 1991 suspension. It
was filed more than 300 days after her 24 September 1991
- 10 - notification that the YISD charges would include the unauthorized
possession of prescription pain-killers. It was filed more than
300 days after her 1 October 1991 meeting with the Superintendent.
The only possibly relevant events that happened within the 300 day
period before the first EEOC charge filing was the due process
hearing and settlement which resulted in Dickason’s full
reinstatement.
However, as noted, the court submitted, and the jury found,
discrimination only in the “handling of the investigation,
suspension, proposal for termination, and ... decision to remove”
Dickason as coach. She requested that her challenges to the due
process hearing be submitted to the jury as possible Title VII
discrimination; but, as noted, the district judge refused to allow
that issue to go to the jury, despite Dickason’s objections. In
short, the due process hearing, and therefore whether any actions
by YISD took place within 300 days of the first EEOC charge filing,
was not an issue overlooked by the trial court. This matter was
presented thoroughly and repeatedly.
None of the events which the jury found discriminatory
occurred within 300 days of Dickason’s first EEOC charge filing.
It would appear, then, that none of the acts which could have
constituted the violation occurred within the limitations period.
C.
There are, however, two exceptions to this Title VII time-bar.
The first is when the “original violation occurred outside the
- 11 - statute of limitations, but is closely related to other violations
that are not time-barred”. Hendrix v. City of Yazoo City, Miss.,
911 F.2d 1102, 1103 (5th Cir. 1990)(applying “continuing violation”
theory to Fair Labor Standards Act actions, and dismissing argument
that the standard is different for Title VII actions). The second
is when “an initial violation, outside the statute of limitations,
is repeated later; in this case, each violation begins the
limitations period anew, and recovery may be had for at least those
violations that occurred within the period of limitations”. Id. at
1103.
Dickason contends that her case, for which the only event
which occurred within the limitations period was her due process
hearing/reinstatement, presents a continuing violation situation.
She maintains that the due process hearing constituted Title VII
discrimination because she faced procedural hurdles that male
employees did not. However, as noted, the trial judge ruled that
this due process hearing discrimination claim not be examined by
the jury. And, Dickason does not contest this ruling. The jury
found discrimination for the events submitted to it, but
necessarily could not have found discrimination for the due process
hearing. Accordingly, we need not make a detailed analysis of
either of the theories of continuing violations; obviously, in the
absence of at least one violation occurring in the limitations
period, neither theory can apply.
The requirement that some actual violation occur during the
limitations period is stated for both parts of the Hendrix
- 12 - formulation; the first requiring close relation of violations
outside the period to violations within the period; the second
requiring repetition of violation, and stating that the new period
only begins with new violations, which must themselves be within
the period. Hendrix, 911 F.2d at 1103.
Furthermore, in Trevino v. Celanese, our court noted that the
“mere perpetuation of the effects of time-barred discrimination
does not constitute a violation of Title VII in the absence of
independent actionable conduct occurring within the statutory
period”. 701 F.2d 397, 403 n.7 (5th Cir. 1983)(emphasis added).
As noted, the jury was precluded from even determining if any
actionable conduct took place within the statutory period. In the
absence of such actionable conduct, Dickason cannot prove a
continuing violation. Any continuing effects of conduct which
occurred outside the prescriptive period do not save her first EEOC
charge.
Finally, the Supreme Court has stated, and our court has often
noted, that where, as here, the triggering, time-barred event is
facially neutral, and the actions taken within the limitations
period are also, as here, facially neutral, and merely give effect
to prior discrimination, they do not constitute a continuing
violation. Lorance v. A T & T Technologies, Inc., 490 U.S. 900
(1989); e.g., Russell v. Bd. Of Trustees of the Firemen, Policemen,
and Fire Alarm Operators’ Pension Fund of Dallas, Texas, 968 F.2d
489, 493 (5th Cir. 1992) cert. denied, 504 U.S. 914 (1993);
Hendrix, 911 F.2d at 1104. This rule is tantamount to saying that,
- 13 - when the only discriminatory acts take place outside the
limitations period, there is, quite literally, no “continuing
violation”, because there is no violation within the period.
Dickason’s case falls squarely within this rule. Without a finding
that the due process hearing was discriminatory, the hearing
process could only have given effect to the discriminatory acts
which preceded it. Those acts, however, fall outside the
prescriptive period. The fact that the due process hearing could
have given them effect (although it did not -- Dickason was
reinstated as a result of the hearing) does not give rise to a
Title VII claim for the hearing itself.
III.
For the foregoing reasons, the judgment in Dickason’s favor is
REVERSED and judgment is RENDERED for the Ysleta Independent School
District.
REVERSED and RENDERED
- 14 -