IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-5768
JOEL G. PACHECO, JR., Plaintiff-Appellant,
versus
DONALD B. RICE, Secretary of Air Force, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas
(July 1, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Joel Pacheco filed this action under Title VII of the Civil
Rights Act of 1964, alleging that he was forced to resign from his
job because of his race. The district court dismissed the suit,
finding Pacheco's claim barred because he failed to initiate the
administrative process within the applicable thirty day period. We
affirm.
I.
In 1985, the United States Air Force employed Pacheco as an
equal employment opportunity officer at Kelly Air Force Base. The
security police at Kelly investigated complaints that Pacheco had
sexually harassed female personnel at the base. Several women filed sworn statements that Pacheco had offered them money for
sexual favors and persisted in making unwelcome sexual advances.
Pacheco was given an opportunity to respond to these allegations.
His supervisors evaluated the evidence and decided that he should
be fired. They notified him of their final decision on July 25,
1985. Pacheco resigned the next day.
Three years later, Pacheco allegedly discovered that a
similarly situated Anglo employee of the Air Force, who had also
been accused of sexual harassment, had been investigated under
different procedures and ultimately was not discharged. Within
thirty days, Pacheco filed an informal complaint of discrimination
with an Air Force EEO officer, alleging that he had been forced to
resign because he was Hispanic. He filed a formal complaint the
next month. The Air Force found the complaint untimely. Pacheco
appealed to the Equal Employment Opportunity Commission, which also
found his complaint time barred. He then filed suit in federal
district court against his supervisors and the Secretary of the Air
Force. The district court dismissed the supervisors as improper
defendants and dismissed the complaint because of the
administrative untimeliness, among other reasons. Pacheco
appeals.1
II.
The remedy for claims of employment discrimination by federal
employees under Title VII is provided in 42 U.S.C. § 2000e-16(a)-
1 We need not consider whether the supervisors were properly dismissed because Pacheco conceded this point below.
2 (e). Henderson v. United States Veterans Admin., 790 F.2d 436, 439
(5th Cir. 1986). Under this legislative scheme, federal employees
must first exhaust their administrative remedies before they may
bring suit in federal court. Hampton v. Internal Revenue Service,
913 F.2d 180, 182 (5th Cir. 1990). The EEOC's regulations provide
that an agency may accept complaints only if
[t]he complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
29 C.F.R. § 1613.214(a)(1)(i) (1991).
Failure to notify the EEO counselor in timely fashion may bar a
claim, absent a defense of waiver, estoppel, or equitable tolling.
Henderson, 790 F.2d at 439-40; Nealon v. Stone, 958 F.2d 584, 589
(4th Cir. 1992); Benford v. Frank, 943 F.2d 609, 612 (6th Cir.
1991).
Pacheco argues that the thirty day period for notifying an EEO
counselor of his claim did not begin to run until July of 1988,
when he learned that the Air Force had treated an Anglo employee
more favorably than him. He did not perceive that the
circumstances surrounding his discharge were discriminatory until
he discovered this disparate treatment. Because he contacted an
EEO counselor within thirty days of the date he obtained this
information, he contends that his claim is not barred.
We disagree. Section 1614.214(a)(1)(i) requires notice to an
EEO counselor within thirty days of the date when the complainant
3 knows or reasonably should know of "the discriminatory event or
personnel action." Notification within thirty days of the time a
plaintiff apprehends that an adverse employment decision was
motivated by a discriminatory purpose is not sufficient. The only
"discriminatory event or personnel action" of which Pacheco can
complain is the decision to fire him in July of 1985. Pacheco was
given notice of this decision when it was made. The language of
§ 1613.214(a)(1)(i) indicates that the thirty day period for
notifying an EEO counselor began at latest on the effective date of
Pacheco's termination. Pacheco's complaint was three years late.
We have rejected arguments similar to Pacheco's with respect
to time limits in other provisions of Title VII and in other
employment discrimination laws. See Merrill v. Southern Methodist
University, 806 F.2d 600, 605 (5th Cir. 1986) (180 day limitations
period of 42 U.S.C. § 2000e-5(e) begins to run when a plaintiff
knows or reasonably should know that the discriminatory act has
occurred, not when he or she first perceives that a discriminatory
motive caused the act); Chapman v. Homco, 886 F.2d 756, 758 (5th
Cir. 1989) (two year limitations period of 29 U.S.C. § 626(e)(1)
begins to run when plaintiff is notified that his employment is
terminated, not when he learns that the termination was based on
discriminatory factors). To allow plaintiffs to raise employment
discrimination claims whenever they begin to suspect that their
employers had illicit motives would effectively eviscerate the time
limits prescribed for filing such complaints.
4 In Jensen v. Frank, 912 F.2d 517, 520 (1st Cir. 1990), the
First Circuit confronted the same time limit that is at issue here,
albeit in its pre-1987 form.2 Like Pacheco, Jensen was a federal
employee who learned after his discharge that a similarly situated
co-worker of a different national origin was treated more leniently
than he. Because this co-worker's case led him to suspect that his
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-5768
JOEL G. PACHECO, JR., Plaintiff-Appellant,
versus
DONALD B. RICE, Secretary of Air Force, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Western District of Texas
(July 1, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Joel Pacheco filed this action under Title VII of the Civil
Rights Act of 1964, alleging that he was forced to resign from his
job because of his race. The district court dismissed the suit,
finding Pacheco's claim barred because he failed to initiate the
administrative process within the applicable thirty day period. We
affirm.
I.
In 1985, the United States Air Force employed Pacheco as an
equal employment opportunity officer at Kelly Air Force Base. The
security police at Kelly investigated complaints that Pacheco had
sexually harassed female personnel at the base. Several women filed sworn statements that Pacheco had offered them money for
sexual favors and persisted in making unwelcome sexual advances.
Pacheco was given an opportunity to respond to these allegations.
His supervisors evaluated the evidence and decided that he should
be fired. They notified him of their final decision on July 25,
1985. Pacheco resigned the next day.
Three years later, Pacheco allegedly discovered that a
similarly situated Anglo employee of the Air Force, who had also
been accused of sexual harassment, had been investigated under
different procedures and ultimately was not discharged. Within
thirty days, Pacheco filed an informal complaint of discrimination
with an Air Force EEO officer, alleging that he had been forced to
resign because he was Hispanic. He filed a formal complaint the
next month. The Air Force found the complaint untimely. Pacheco
appealed to the Equal Employment Opportunity Commission, which also
found his complaint time barred. He then filed suit in federal
district court against his supervisors and the Secretary of the Air
Force. The district court dismissed the supervisors as improper
defendants and dismissed the complaint because of the
administrative untimeliness, among other reasons. Pacheco
appeals.1
II.
The remedy for claims of employment discrimination by federal
employees under Title VII is provided in 42 U.S.C. § 2000e-16(a)-
1 We need not consider whether the supervisors were properly dismissed because Pacheco conceded this point below.
2 (e). Henderson v. United States Veterans Admin., 790 F.2d 436, 439
(5th Cir. 1986). Under this legislative scheme, federal employees
must first exhaust their administrative remedies before they may
bring suit in federal court. Hampton v. Internal Revenue Service,
913 F.2d 180, 182 (5th Cir. 1990). The EEOC's regulations provide
that an agency may accept complaints only if
[t]he complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him/her to believe he/she had been discriminated against within 30 calendar days of the date of the alleged discriminatory event, the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action.
29 C.F.R. § 1613.214(a)(1)(i) (1991).
Failure to notify the EEO counselor in timely fashion may bar a
claim, absent a defense of waiver, estoppel, or equitable tolling.
Henderson, 790 F.2d at 439-40; Nealon v. Stone, 958 F.2d 584, 589
(4th Cir. 1992); Benford v. Frank, 943 F.2d 609, 612 (6th Cir.
1991).
Pacheco argues that the thirty day period for notifying an EEO
counselor of his claim did not begin to run until July of 1988,
when he learned that the Air Force had treated an Anglo employee
more favorably than him. He did not perceive that the
circumstances surrounding his discharge were discriminatory until
he discovered this disparate treatment. Because he contacted an
EEO counselor within thirty days of the date he obtained this
information, he contends that his claim is not barred.
We disagree. Section 1614.214(a)(1)(i) requires notice to an
EEO counselor within thirty days of the date when the complainant
3 knows or reasonably should know of "the discriminatory event or
personnel action." Notification within thirty days of the time a
plaintiff apprehends that an adverse employment decision was
motivated by a discriminatory purpose is not sufficient. The only
"discriminatory event or personnel action" of which Pacheco can
complain is the decision to fire him in July of 1985. Pacheco was
given notice of this decision when it was made. The language of
§ 1613.214(a)(1)(i) indicates that the thirty day period for
notifying an EEO counselor began at latest on the effective date of
Pacheco's termination. Pacheco's complaint was three years late.
We have rejected arguments similar to Pacheco's with respect
to time limits in other provisions of Title VII and in other
employment discrimination laws. See Merrill v. Southern Methodist
University, 806 F.2d 600, 605 (5th Cir. 1986) (180 day limitations
period of 42 U.S.C. § 2000e-5(e) begins to run when a plaintiff
knows or reasonably should know that the discriminatory act has
occurred, not when he or she first perceives that a discriminatory
motive caused the act); Chapman v. Homco, 886 F.2d 756, 758 (5th
Cir. 1989) (two year limitations period of 29 U.S.C. § 626(e)(1)
begins to run when plaintiff is notified that his employment is
terminated, not when he learns that the termination was based on
discriminatory factors). To allow plaintiffs to raise employment
discrimination claims whenever they begin to suspect that their
employers had illicit motives would effectively eviscerate the time
limits prescribed for filing such complaints.
4 In Jensen v. Frank, 912 F.2d 517, 520 (1st Cir. 1990), the
First Circuit confronted the same time limit that is at issue here,
albeit in its pre-1987 form.2 Like Pacheco, Jensen was a federal
employee who learned after his discharge that a similarly situated
co-worker of a different national origin was treated more leniently
than he. Because this co-worker's case led him to suspect that his
discharge was discriminatory, he argued that the thirty day period
did not begin to run until he found out about his co-worker's more
favorable treatment. The First Circuit rejected this argument. It
concluded that whatever role discrimination may have played in the
lenient treatment of Jensen's fellow employee, it could not fairly
be characterized as an event triggering Jensen's obligation to
contact an EEO officer. The same logic applies here. We find
nothing in the amended version of § 1613.214(a)(1)(i) that mandates
a different result.
We recognize that the time limit established by this
regulation is subject to the traditional equitable defenses of
waiver, estoppel, and equitable tolling. See Henderson, 790 F.2d
at 440; Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. 1981).3
2 Before its amendment in 1987, the regulation provided that a federal employee's discrimination complaint may be processed only if "[t]he complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date." 29 C.F.R. § 1613.214(a)(1)(i) (1987). 3 The Supreme Court has indicated that "the same rebuttable presumption of equitable tolling applicable to suits
5 Equitable tolling is appropriate when, despite all due diligence,
a plaintiff is unable to discover essential information bearing on
the existence of his claim. Rhodes v. Guiberson Oil Tools Div.,
927 F.2d 876, 878 (5th Cir. 1991); Cada v. Baxter Healthcare Corp.,
920 F.2d 446, 452 (7th Cir. 1990); see also Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975).
Indeed, the EEOC has expressly provided a mechanism by which the
thirty day time limit on employment discrimination complaints by
federal employees may be extended. Its regulations say that "[t]he
agency shall extend the time limits in this section when the
complainant shows that he/she was not otherwise aware of them, was
prevented by circumstances beyond the complainant's control from
submitting the matter within the time limits; or for other reasons
considered sufficient by the agency." 29 C.F.R. § 1613.214(a)(4).
The doctrine of equitable tolling has its limits, however. It
does not permit plaintiffs to suspend the time for filing
discrimination complaints indefinitely when they discover instances
of disparate treatment of other employees months or years after
their discharge. It is to be expected that some relevant facts
will come to light after the date of an employee's termination --
one purpose of filing an administrative complaint is to uncover
them. See Olson v. Mobil Oil Corp., 904 F.2d 198, 203 (4th Cir.
1990). The requirement of diligent inquiry imposes an affirmative
duty on the potential plaintiff to proceed with a reasonable
against private defendants should also apply to suits against the United States." Irwin v. Veterans Admin., 111 S. Ct. 453, 457 (1990).
6 investigation in response to an adverse event. Compare Jensen v.
Snellings, 841 F.2d 600, 607 (5th Cir. 1988).
The gist of Pacheco's complaint was that the investigation of
the sexual harassment charges against him was not performed in
accordance with Air Force regulations and policies, whereas similar
investigations involving Anglo employees were done by the book,
with more favorable results for the employees. There is no reason
that Pacheco could not have raised this issue at the time he
resigned. The procedures governing disciplinary proceedings were
well established at the time. As a career EEO officer, Pacheco was
undoubtedly far more familiar with them than most Air Force
employees. If Pacheco suspected that he was being singled out
because of his race, he could easily have complained or sought
information as to how disciplinary proceedings were supposed to be
handled. Inquiry into past disciplinary proceedings would have
been proper. Instead, he sat on his rights for three years. This
was not a case for equitable tolling.
Finally, Pacheco's argument that the Civil Rights Act of 1991
somehow modifies the time limit imposed by § 1613.214(a)(1)(i) is
without merit. He seems to rely on the amended version of 42
U.S.C. § 2000(e)-5(e), that an unlawful employment practice occurs
with respect to seniority systems when the seniority system is
adopted, when an individual becomes subject to it, or when a person
is injured by the application of the seniority system. Even if
this provision were to be applied retroactively, a question we do
7 not address here, it is inapplicable in this case where no
seniority system is at issue.
AFFIRMED.