United States Court of Appeals,
Fifth Circuit.
No. 91–4675.
Jasper C. ROWE, Plaintiff–Appellant
v.
Louis W. SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES, et al., Defendants–Appellees.
Aug. 5, 1992.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM, REYNALDO G. GARZA, and JONES,** Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
crimination on the basiscourt in all respects. of race. The district court dismissed Appellant's claims, and this appeal followed. We affirm the district BACKGROUND
The Department of Health and Human Services ("HHS"), formerly the Department of Health,
Educat ion and Welfare, employed plaintiff Jasper C. Rowe, a Black male, as a senior att rney in o
Region VI of the Office of the General Counsel from 1971 until his resignation in 1985. Rowe was
supervised by defendants Frank Smith III, who served as Regional Attorney of Region VI from
November 1981 until May 1984, Isabel Dunst, who served as Associate General Counsel from 1979
until the time of Rowe's resignation, and Gayla Fuller, who served as Deputy Regional Attorney of
Region VI at the time of Rowe's five-day suspension in March, 1984.
Over the course of his employment at HHS Rowe filed a t otal of four discrimination
complaints with the Equal Employment Opportunity Commission ("EEOC"). His most recent
complaint, filed September 24, 1984, alleged that his supervisors engaged in a continuing pattern of
reprisals against him. This last complaint led to the instant appeal.
* Judge Jones concurs in all parts of this opinion save Part III, in which she concurs in the result only. Rowe's final complaint was precipitated by the aforementioned suspension, imposed upon him
on May 21, 1984, after HHS officials found that Rowe had engaged in outside professional work
without proper permission, used government time and equipment for non-government activities, and
for taking an extended lunch break. Rowe claims that White employees in similar positions who had
been guilty of similar conduct were dealt with more leniently. Rowe resigned from HHS in 1985, but
continued to pursue his EEOC complaint. On January 14, 1988, the EEOC Office of Review and
Appeals affirmed HHS's final decision, resolving that HHS did not commit an act of reprisal against
Rowe in suspending him. Rowe requested that the EEOC reconsider its decision. The EEOC denied
Rowe's request.
Rowe filed suit in the district court after receiving a right to sue letter from the EEOC. Rowe
raised claims of violations under Title VII of the Civil Rights Act of 1964 (codified as amended at 42
U.S.C. § 2000e et seq.), and under 42 U.S.C. §§ 1981, 1983, and 1985(3). The district court found
that Rowe's § 1981 and § 1983 claims were barred because Title VII precluded alternate remedies
for federal employees alleging employment discrimination. By order dated May 4, 1990, the court
determined that the § 1985(3) claim was substantially identical to the Title VII claim, and held it also
to be barred. The court held further that it lacked jurisdiction over Rowe's claims because Rowe had
not filed his request for reconsideration by the EEOC in timely fashion. Rowe moved for
reconsideration on May 14, 1991.
On June 25, 1990, the district court vacated its judgment and dismissed with prejudice all of
Rowe's claims except those under Title VII. That order also stayed further proceedings on the case
pending decision of the U.S. Supreme Court in Irwin v. Veterans Administration, ––– U.S. ––––, 111
S.Ct. 453, 112 L.Ed.2d 435 (1990).
The district court lifted the stay on June 11, 1991 and, deciding on the basis of Irwin that the
filing deadline for Rowe's judicial complaint should not be equitably tolled, granted Defendant's Motion for Summary Judgment, dismissing all of Rowe's claims with prejudice. Rowe appeals.
ANALYSIS
I. Title VII Pre-empts Rowe's Claims Raised under 42 U.S.C. §§ 1981, 1983 and 1985(3).
As this Court has noted previously, "[i]t is well settled that the provisions of Title VII of the
Civil Rights Act applicable to claims of racial discrimination in federal employment are the exclusive
and preemptive remedy for such claims." Hampton v. Internal Revenue Service, 913 F.2d 180, 183
(5th Cir.1990). We based our observation on Brown v. General Services Administration, 425 U.S.
820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), in which the Supreme Court stated "that Congress
intended [Title VII] to be exclusive and pre-emptive" regarding federal employment. Id. at 829, 96
S.Ct. at 1966. In his main brief, Rowe states that Brown does not in fact stand for the proposition
that Title VII is his exclusive remedy. The precedent in this Circuit, however, is clearly that Brown
stands for the proposition that "Title VII is the exclusive judicial remedy for claims of discrimination
in federal employment." Watkins v. Lujan, 922 F.2d 261, 263 (5th Cir.1991). As the district court
noted, Rowe relies on the same facts in asserting both his Title VII claim and his claim under §
1985(3), which is therefore not sufficiently distinct to avoid the bar. See Irwin v. Veterans
Administration, 874 F.2d 1092, 1095–96 (5th Cir.1989), aff'd on other grounds, ––– U.S. ––––, 111
Rowe contends that even if the law at the time of the district court's order made Title VII his
exclusive remedy, Congress expanded the range of actions available to him by virtue of the Civil
Rights Act of 1991, Pub.L. No. 102–166, 105 Stat. 1071–1100 ("the Act"), which the President
signed into law on November 21, 1991. At the time of the district court's order, § 1981 stated:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of perso and ns property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. Title I § 101(2) of the Act added the following paragraphs to § 1981:
(b) For purposes of this section, the term "make and enforce contracts' includes the making, performance, modification, and termination of contract s, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
Rowe reads these additions as overruling Brown 's holding that Title VII is his exclusive
remedy. Whatever the meaning of these new additions, however, we have recently held that Section
101 of the Act does not apply retroactively. Johnson v. Uncle Ben's, Inc., No. 91–2590, slip op. at
23, ––– F.2d ––––, –––– (5th Cir. July 1, 1992). This brings us in line with the other Circuit Courts
which have found themselves in the unenviable position of having to rule on this thorny issue. See
Fray v. Omaha World Herald Co., 960 F.2d 1370 (8th Cir.1992); Mozee v. American Commercial
Marine Serv. Co., 963 F.2d 929 (7th Cir.1992); Luddington v. Indiana Bell Telephone Co., No.
91–2320 ––– F.2d –––– (7th Cir. June 15, 1992).
II. The District Court did not err in Finding that Rowe's Request for Administrative Reconsideration was Untimely under the Law in Effect at the Time of the Decision Below.
By statute, an employee must file his Title VII suit against the federal government "[w]ithin
thirty days of receipt of notice of final action taken by [the employing agency] or by the Equal
Employment Opportunity Commission." 42 U.S.C. § 2000e–16(c). Pursuant to an express
Congressional delegation of rule-making authority, the EEOC has promulgated regulations governing
the reopening or reconsideration of its decisions. See 42 U.S.C. § 2000e–16(b). The filing of a
timely request to reopen an EEOC decision tolls the statutory time limit. Donaldson v. Tennessee
Valley Authority, 759 F.2d 535, 538 (6th Cir.1985).
The district court held Rowe's Title VII claim was barred because he did not file his request
for administrative reconsideration in timely fashion. EEOC's regulations state, in pertinent part: Parties may request reopening or reconsideration provided that such request is made within 30 days of receipt of a decision issued pursuant to § 1613.234 or within 20 days of receipt of another party's timely request to reopen.
29 C.F.R. § 1613.235(b).
The regulations also state
A document shall be deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or if, in the absence of a legible postmark, it is received by mail within five days from the expiration of the applicable filing period.
29 C.F.R. § 1613.240(b).
Rowe dated his request for reconsideration March 2, 19871, but failed to mail it until March
7. Rowe contends that a genuine issue of material fact exists as to when he received notice of the
EEOC's January, 1988 decision. The EEOC sent its decision by certified mail. According to the
stamp on the envelope, the postal service attempted delivery on January 26, and again on February
3. Rowe contended at oral argument that it is not the postal service's practice to place the date of
a second attempted delivery on an envelope unless the second attempt was unsuccessful. Rowe has
not, however, submit ted any summary judgment evidence in support of this contention. See
Fed.R.Civ.P. 56(c), (e). All the evidence of record indicates that the postal service made delivery on
February 3, the date on the certified mail receipt form signed by Rowe's wife. The record also
includes an affidavit from a claims inspector at the post office which delivered the EEOC's notice.
The affiant states that the receipt is a business record which indicates that the post office completed
delivery on February 3.
Rowe contends that he did not receive the EEOC determination until February 4, contending
that he was out of town on February 3 and 4. Rowe apparently has no personal knowledge as to
when the post office completed delivery. Rowe alleges that his wife signed the certified mail receipt
1 He apparently meant "1988." on February 4. As previously noted, however, the date written on the certified mail receipt is
February 3. Rowe has submitted no affidavit from his wife to the effect that the date on the receipt
is in error. Rather, he argues that it stands to reason that delivery had to have occurred February 4
because, Rowe claims, the postal service would not have stamped the envelope February 3 unless the
attempted delivery on that date had been unsuccessful. In any case, to withstand Appellees' motion
for summary judgment, it does not suffice for Rowe to merely state that the documents of record are
in error. It was Rowe's responsibility to submit evidence showing that a genuine dispute existed.
We note that receipt of the notice by Rowe's wife would trigger the 30 day clock. Espinoza
v. Missouri Pacific R. Co., 754 F.2d 1247, 1249–50 (5th Cir.1985). If the postal service made
delivery on February 3, then Rowe's request for reconsideration would have had to be postmarked
no later than March 4, 1988. If, however, delivery was not completed until February 4, then the 30
day clock would seem to end March 5. We are puzzled as to why Rowe waited to mail his request,
dated March 2, until March 7. At oral argument, Rowe stated that he did this because March 5 was
a Sat urday, and the regulations indicate that requests should be mailed on business days. See 29
C.F.R. 1613.240(a).2 We do not read the regulations as mandating that Rowe not mail his request
on a Saturday, assuming that the 30 day period had not yet run out.
In any case, the evidence of record clearly indicates that there is no genuine issue of material
fact that the postal service completed delivery on February 3. Therefore, the district court did not
err in finding that Rowe did not request reconsideration in timely fashion.
Rowe contends that even if his complaint was untimely, the EEOC waived the thirty day limit
2 This regulation, regarding the computation of time, reads:
The first day counted shall be the day after the event from which the time period begins to run and the last day of the period shall be included, unless it falls on a Saturday, Sunday, or a Federal holiday, in which case the period shall be extended to include the next business day ... by docketing and acting on his request for reconsideration. We have held, however, that such agency
action does not, in and of itself, constitute a waiver. Oaxaca v. Roscoe, 641 F.2d 386, 390–91 (5th
Cir.1981). In order to waive a timeliness objection, the agency must make a specific finding that the
claimant's submission was timely. See Munoz v. Aldridge, 894 F.2d 1489, 1494–95 (5th Cir.1990).
A mere statement that a request for reconsideration is timely does not suffice "because agencies may
inadvertently overlook timeliness problems and should not thereafter be bound." Henderson v.
United States Veterans Administration, 790 F.2d 436, 441 (5th Cir.1986). As the EEOC made no
such finding in this case, there was no agency waiver of the timeliness argument.
At oral argument, Rowe contended that there in fact never was a thirty day time limit because
the proper regulation in this case is not 29 C.F.R. § 1613.235(b), but rather 29 C.F.R. § 1613.235(a),
according to which:
The Commission may, in its discretion, reopen and reconsider any decision of the Commission notwithstanding any other provisions of this part.
Assuming arguendo that the thirty day limit does not apply to this section regarding any
effect that it would have as to a party who would be time-barred from filing his or her own request
for reconsideration, it cannot aid Rowe. This is not a case in which the EEOC sua sponte decided
to reopen and reconsider its decision. Rather, Rowe requested that the EEOC reopen and reconsider
its decision, and the EEOC denied the request. Section 1613.235(b) is clearly the applicable section.
Rowe argues further that the district court erred in not excusing any untimeliness on equitable
grounds. Equitable tolling applies to the statutory time limits in 42 U.S.C. § 2000e–16(c). Irwin v.
Veterans Administration, ––– U.S. ––––, –––– – ––––, 111 S.Ct. 453, 456–58, 112 L.Ed.2d 435,
443–44 (1990). However, "[f]ederal courts have typically extended equitable relief only sparingly."
Id. at ––––, 111 S.Ct. at 457, 112 L.Ed.2d at 444. The federal courts have allowed equitable tolling
in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.
Id. [Footnotes omitted].
In other words, equitable tolling may apply where the claimant has vigorously pursued his
action, but has inadvertently missed deadlines due to his or her lack of sophistication with the
procedural requirements of Title VII claims. Rowe, however, is highly sophisticated regarding Title
VII, and has defended the United States against such claims. Rowe contends that the district court
should have applied equitable tolling because, he claims, he was surprised when Appellees brought
up this defense for the first time at the judicial stage, having never mentioned it during the
administrative process. Rowe's argument lacks merit. Equitable tolling in Title VII cases may apply
if a claimant, due to his lack of sophistication, does not understand the procedures. We will not apply
equitable tolling on the basis that timeliness was not raised as a defense at the administrative stage.
Having considered Rowe's arguments, we conclude that his request for administrative
reconsideration was time-barred under the law as it stood prior to the Act.
III. We Defer to the EEOC's Opinion that The Act does not Apply Retroactively in Title VII Actions.
Rowe contends that even if the district court's opinion was correct under the law at the time
of its decision, the Act extended the filing time from 30 to 90 days. Section 114(1) of the Act
extends the time for filing a judicial action from 30 to 90 days. Rowe claims that the administrative
deadline in the regulations tracks the statutory deadline, and that therefore the Act implicitly extended
the time for filing a request for reconsideration to 90 days. Even if Congress meant to implicitly alter
29 C.F.R. § 1613.235(b), however, this would not benefit Rowe unless the Act applies retroactively
to cases pending on appeal.
In Johnson, we found it unnecessary to decide whether the Act applies retroactively regarding
its amendments to Title VII, No. ––– F.2d at ––––, and so we explore the issue here. The Act, on its face, does not make clear whether the courts should apply it retroactively or only prospectively.
Section 402 of the Act states that "[e]xcept as otherwise specifically provided, this Act and the
Amendments made by this Act shall take effect upon enactment." As the Sixth Circuit has
recognized, "[t]his language could be construed to mean either that the Act should be applied to any
charge or case pending on or after the date of enactment, or that it should be applied only to conduct
occurring after that date." Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.1992). This is
because, as noted by the Eighth Circuit,
many regulatory statutes contain a compliance grace period, [therefore] a provision clarifying that the Act would be immediately effective is hardly evidence of congressional intent that it be applied retroactively, particularly when Congress deleted explicit retroactivity provisions from earlier bills.
Fray, 960 F.2d at 1376.
And delete, Congress did. Congress passed an explicitly retroactive Civil Rights statute in
1990, which the President vetoed because of what he felt to be "unfair retroactivity rules." 136
Cong.Rec. S.16562 (daily ed. Oct. 24, 1990). Congress failed to override the veto. The House then
passed another expressly retroactive bill in 1991. A bi-partisan Senate committee, however, drafted
a compromise bill, S.1745, which deleted the retroactivity provisions. It was this bill which became
law.
Congress has left us with language born of compromise in which there was carefully crafted
"ambiguity as to whether Congress intended the Act to be generally retroactive." Fray, 960 F.2d at
1376. The legislative history is equally unenlightening. For example, Senator Danforth, one of bill's
sponsors, stated that the Act was to apply only prospectively. 137 Cong.Rec. S.15,483 (daily ed.
Oct. 30, 1991). Another sponsor, Senator Kennedy, expressed disagreement with that view. Id.
In the absence of clear indication of Congressional intent, whether to apply a statute
retroactively or merely prospectively has caused some confusion for the judiciary. Prior to Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969),
the federal courts held generally to the principle that statutes apply only prospectively in the absence
of clear indication of contrary Congressional intent. See Hassett v. Welch, 303 U.S. 303, 314, 58
S.Ct. 559, 564, 82 L.Ed. 858 (1938). In Thorpe, however, the Supreme Court, quoting Chief Justice
Marshall's opinion in United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49, 51 (1801),
stated that the presumption goes the other way. 393 U.S. at 282, 89 S.Ct. at 526. 3
In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974),
the Supreme Court, relying again of Chief Justice Marshall's reasoning, seemed to strengthen Thorpe
by stating that
the principle [is] that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.
Id. at 711, 94 S.Ct. at 2016.
In Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493
(1988), however, the Supreme Court stated:
Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.
3 Chief Justice Marshall stated:
It is in the general true that the province of an appellate court is only to enquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns ... the court must decide according to existing laws, and if it be necessary to set aside a judgment, which cannot be affirmed but in violation of law, the judgment must be set aside. Id. at 208, 109 S.Ct. at 471.
In Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 108
L.Ed.2d 842 (1990), the Court recognized this "apparent tension" in its precedents, id. at 837, 110
S.Ct. at ––––, but it did not settle the issue because there was clear evidence of congressional intent,
and "where congressional intent is clear, it governs." Id.
The Seventh Circuit has suggested in dicta that it might be appropriate to give retroactive
application to procedural amendments, but apply substantive changes only prospectively. Mozee, 963
F.2d at 933–34. In Johnson, "[w]e follow[ed] the canon that statutes affecting substantive rights "are
ordinarily addressed to the future and are to be given prospective effect only.' " ––– F.2d at ––––
(quoting Turner v. United States, 410 F.2d 837, 842 (5th Cir.1969)). Rowe argues that the issue of
whether the time limit is 30 or 90 days is procedural. This would certainly be the case if the Act had
been signed into law during the 30 day period in which Rowe could have timely filed a request for
reconsideration. Rowe, however, attempts to use the Act to revive a right which we have determined
to have been extinguished under the law as it was at the time of the events in question. Therefore,
this issue has substantive attributes. For the reasons discussed below, however, we find it
unnecessary to determine whether this question is essentially substantive or procedural.
In this case, if there is anything clear about Congressional intent, it is that Congress clearly
intended to leave the question of retroactivity to others. In the case of whether or not legislative
overruling of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132
(1989) would apply retroactively, the question has been left to the courts. Such is not the case,
however, with amendments to Title VII, which the EEOC administers. Had we determined that this
case required us to decide whether Congress intended that its amendments to 42 U.S.C. § 1981 apply
retroactively, we would have made a de novo determination of congressional intent. We do not do
so here because if the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.
Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d
694 (1984).
On December 27, 1991, the EEOC issued a policy statement that it "will not seek damages
under the Civil Rights Act of 1991 for events occurring before November 21, 1991." EEOC Notice
No. 915.002. As the Sixth Circuit has noted, "[i]n light of the ambiguity of the statute on its face and
the lack of congressional guidance, the EEOC's decision to apply the 1991 Act prospectively appears
reasonable." Vogel, 959 F.2d at 598. Therefore, we will not give retroactive effect to the Act's
arguably substantive amendments to Title VII.
CONCLUSIONS
As we have recently held, the Act's amendments to 42 U.S.C. § 1981 do not apply
retroactively. This, however, is our only finding regarding congressional intent. We make no finding
as to whether or not Congress intended the Act to apply retroactively regarding Title VII, we find
only that the EEOC's determination that Congress did not so intend is reasonable. Therefore, we do
not find it necessary to determine whether Congress intended to extend the 30 day time limit to 90
days for requesting administrative reconsideration. Moreover, Appellant's tardiness does not merit
equitable tolling. Therefore, the order of the district court is
AFFIRMED.