Ulanoff v. Henderson

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 21, 2000
• Docket: 99-51025
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-51025 (Summary Calendar)

EVANGELINA ULANOFF Plaintiff-Appellant

versus

WILLIAM J. HENDERSON, Post Master General, United States Postal Service

Defendant-Appellee

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (97-CV-534-OG) - - - - - - - - - - November 20, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Evangelina Ulanoff appeals the district

court’s grant of summary judgment in favor of Defendant-Appellee

William J. Henderson in his capacity as Post Master General of the

United States Postal Service (“Post Office”), dismissing her claims

of sexual harassment and retaliation for engaging in protected EEO

activity. Ulanoff contends that she was sexually harassed by her

supervisor and that because she reported this, she was demoted from

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. acting supervisor to mail carrier. We affirm the decisions of the

district court, concluding that the record supports the grant of

summary judgment.

I. Facts and Proceedings

Evangelina Ulanoff, an Hispanic, began her career with the

Post Office as a PS-5 letter carrier in 1981. In 1987, she was

promoted to the position of acting supervisor via the agency’s 204-

B program. She remained in that position for approximately six

years, most of which was spent at stations in San Antonio, Texas,

where Thomas Bertetti was the station manager.

Ulanoff alleges that Bertetti repeatedly subjected her to

sexual harassment, both verbally and physically, during this time.

Ulanoff states that Bertetti regularly called her into his office

for closed-door meetings during which he asked her offensive

questions about her personal life and her marriage, and that on one

occasion he touched her breast. Ulanoff also alleges that Bertetti

threatened to tell her husband that he (Bertetti) had had sexual

relations with her, which she insists never occurred. Ulanoff

reported Bertetti’s behavior to her immediate supervisor but, as

Bertetti was his supervisor as well, her supervisor stated that he

could do nothing to help her.

Ulanoff was eventually removed from Bertetti’s supervision,

but after an absence of a year and a half, she was returned to his

supervision. Ulanoff claims that Bertetti informed her that he had

2 “made a deal” with area manger Pedro Casias to have her returned to

his (Bertetti’s) supervision.

Ulanoff stated that she approached Casias on a number of

occasions, asking that she be removed from Bertetti’s supervision

because of the persistent pattern of sexual harassment. Casias

appears finally to have agreed to this but informed Ulanoff that

she must explain the reasons for the transfer to Bertetti, which

she never did. Ulanoff claims that when Casias learned that she

had not thus informed Bertetti, he (Casias) was “highly upset.” In

fact, according to Ulanoff, Casias had been so angry that, before

she quit, he reassigned her to the post of mail carrier.

Regardless of the reasons, however, none dispute that, after she

was transferred from Bertetti’s supervision, Ulanoff continued to

work as an acting supervisor for about a year and a half. She

served in that capacity at two different stations until she was

removed from that position and re-assigned as a mail carrier.

On June 9, 1993, eleven months after her last contact with

Bertetti and twenty two days after her removal from the position of

acting supervisor, Ulanoff requested an appointment with an Equal

Employment Opportunity (“EEO”) counselor. Fourteen days later, she

filed a written request for counseling. Ulanoff’s only previous

contact with an EEO counselor had been in a February 1993 telephone

conversation with Alice Orta, who denies that Ulanoff sought

counseling during that call. Ulanoff, in contrast, alleges that

3 Orta urged her not to file a complaint, as doing so would

constitute “career suicide.”

Ulanoff filed a formal complaint of discrimination with the

Post Office a few months later. The Post Office accepted only the

complaint about her removal from the acting supervisor position,

rejecting Ulanoff’s other complaints because she had failed to

cooperate when asked for specific dates and names regarding her

sexual harassment claim and for more specific information regarding

her other claims. Subsequently, however, the Equal Employment

Opportunity Commission, Office of Federal Operations (“EEOC”)

reinstated these claims, finding the rejection improper in light of

the Post Office’s failure to warn Ulanoff that her complaint would

be dismissed if she did not cooperate.

Ulanoff filed two complaints of employment discrimination with

the EEOC against the Post Office. In the first she alleged

(1) discrimination on the basis of sex and national origin, and (2)

retaliation on the basis of her prior EEO activity ( collectively

the “sexual harassment complaint”). In Ulanoff’s other EEOC

complaint, she alleged that the decision not to promote her to the

position of supervisor was based on (1) sex and national origin

discrimination and (2) retaliation for her prior EEO activity (the

“non-promotion complaint”). The EEOC administrative law judge

(“ALJ”) recommended deciding in favor of Ulanoff, finding

actionable sexual harassment in the sexual harassment complaint,

sex discrimination in the non-promotion complaint, and retaliation

4 for protected EEO activity in both complaints. The Post Office

chose not to adopt any of these recommendations, however, finding

the sexual harassment complaint to have been untimely filed and

declining to consider the merits of Ulanoff’s other complaints.

Ulanoff then filed this lawsuit in district court, alleging

that she was (1) sexually harassed by her supervisor, Thomas

Bertetti, (2) removed from the Postal Service’s 204-B program in

retaliation for complaining to the EEOC about that harassment, and

(3) denied promotion to supervisor in retaliation for her EEO

activity and because of her sex. The Post Office filed motions for

summary judgment on all three charges and the district court

granted these motions. Ulanoff then filed a motion for

reconsideration of the court’s summary judgment on her first and

third claims.

After further briefing, the district court affirmed its

dismissal of the sexual harassment claim as untimely and the sex

discrimination claim for non-promotion as unmeritorious. The court

did reinstate the claim for retaliatory non-promotion, however,

which claim proceeded to trial. At the conclusion of the trial,

the jury returned a verdict for the Post Office.

Ulanoff filed this appeal, limited to the issues of the

district court’s dismissal of the sexual harassment complaint as

untimely and the retaliatory removal claim on its lack of merit.

She did not appeal either the district court’s grant of summary

judgment on the non-promotion claim grounded in sex discrimination

5 or the jury’s verdict on the non-promotion claim grounded in

retaliation.

II. Analysis

A. Standard of Review

We review a district court’s grant of summary judgment de

novo.1 In so doing, we “review the record independently, make any

factual inferences in favor of the nonmovant, and then ask whether

the movant is entitled to judgment as a matter of law.”2

B. Timeliness of the Sexual Harassment Claim

Ulanoff contends that the district court erred in rejecting

her sexual harassment claim against the Post Office as untimely.

The court ruled that she had not complied with the requirement of

29 C.F.R. § 1614.105(a)(1) which directs that she “initiate contact

with a Counselor within 45 days of the date of the matter alleged

to be discriminatory.” During both the processing of her

administrative complaint and discovery for her civil suit, Ulanoff

stated that she was sexually harassed by Thomas Bertetti, who had

been her supervisor from August 1987 until March 1991 and again

from July 1992 until September 1992. Ulanoff first contacted EEO

counselor Alice Orta in February 1993, at which time Ulanoff

apparently neither made a formal complaint nor requested

1 See Degan v. Ford Motor Company, 869 F.2d 889, 892 (5th Cir. 1989). 2 Id.

6 counseling. Ulanoff did not formally request counseling until June

23, 1993. Facially then, Ulanoff did not report her claim timely.

1. Estoppel

There are, however, a number of exceptions to the 45 day

limit, namely equitable estoppel, equitable tolling, and waiver.3

Ulanoff contends that the Post Office is estopped from raising the

issue of timeliness as it did so only after the ALJ issued his

report recommending a finding of discrimination. Her reliance on

Abernathy v. Brown,4 an EEOC decision in which the Commission held

that an agency is estopped from raising a claim of untimeliness

unless it does so in the EEOC hearing, is misplaced. First, the

relevant language in Abernathy is dicta; furthermore, we are not

bound by the decisions of the EEOC. When presented with Ulanoff’s

claims, the Post Office investigated. The EEOC hearing is part of

this investigative process, in which the ALJ recommends a decision

that the agency is free to accept, reject, or modify as it sees

fit. Estoppel is typically granted in situations bordering on

misrepresentation, as when the defendant’s conduct induces the

plaintiff to refrain from exercising her rights.5 Ulanoff’s sexual

harassment complaint was initially presented as a continuing

violation that occurred from 1987 until May 18, 1993. That being

3 See 29 C.F.R. § 1614.604(c). 4 EEOC Appeal No. 01962216, 1997 WL 90886 (Feb. 26, 1997). 5 See Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991), rev’d on other grounds, 39 F.3d 537 (5th Cir. 1994).

7 so, it is obvious why the Post Office did not raise the issue of

timeliness at that juncture.

Ulanoff claims that the Post Office’s failure to assert the

limitations defense induced her not to file her complaint within

the statutory period, which should estop the Post Office from

maintaining its defense of time bar. The evidence demonstrates,

however, that the 45 day window had closed long before Ulanoff ever

filed her complaint. That being the case, Ulanoff cannot

reasonably claim that the Post Office’s failure to raise the issue

of timeliness somehow prevented her from contacting an EEO

counselor within the specified time period.

Ulanoff presents three additional arguments in an effort to

support her equitable estoppel claim. First, she argues that a

widespread fear and mistrust of the EEO process pervaded the San

Antonio post office stations, making employees inclined to turn to

the EEO only as a last resort. The record contradicts this

contention; instead, it shows that San Antonio postal employees

regularly availed themselves of the EEO process. Second, Ulanoff

contends that when she contacted EEO counselor Alice Orta, Orta

discouraged her from filing a complaint or otherwise pursuing

action against the Post Office, telling her, as noted, that doing

so would be “career suicide.” Whether or not this occurred is

irrelevant, however, as Ulanoff’s first conversation with Orta took

place well after the expiration of the 45 day period, rendering

this argument moot. Third, Ulanoff contends that when she informed

8 her supervisors of the harassment she had suffered while under

Bertetti’s supervision, each supervisor told her either that he

could not or would not help her. Ulanoff does not contend, though,

that her supervisors in any way withheld information about the EEOC

process, misled her, or dissuaded her from pursuing other remedies.

As each of her arguments is unavailing, Ulanoff‘s invoking of the

doctrine of equitable estoppel is unavailing.

2. Equitable Tolling

Ulanoff next advances equitable tolling as an exception to

time bar. “Equitable tolling focuses on the employee's ignorance,

not on any possible misconduct by the employer.”6 But, as Ulanoff

has not contended that she was unaware of her rights or of the EEO

process generally, this exception is inapplicable.

3. Waiver

Regarding waiver, we note that the Post Office had not made a

finding of discrimination when it raised the defense of time bar.

Therefore, Ulanoff cannot maintain the position that a federal

agency “by merely accepting and investigating a tardy complaint,

automatically waives its objection to the complainant’s failure to

comply with the prescribed time delays.”7 On the contrary, “to

waive a timeliness objection, the agency must make a specific

finding that the claimant’s submission was timely.”8 As the Post

6 Id. 7 Oaxaca v. Roscoe, 641 F.2d 386, 389 (5th Cir. 1981). 8 Rowe v. Sullivan, 967 F.2d 186, 190 (5th Cir. 1992).

9 Office made no such finding here, it did not waive its right to

assert a timeliness objection when it failed to advance it at the

EEOC hearing.

4. Continuing Violation

Ulanoff nevertheless continues to assert that the sexual

harassment she suffered was a continuing violation perpetrated by

the Post Office, so that in fact her complaint was filed within the

45 day window. To invoke the continuing violation doctrine, a

plaintiff must point to a series of related acts of discrimination,

at least one of which falls within the 45 day limitation period.9

A plaintiff may not use this doctrine to resurrect past

discrimination, even if the effects of that discrimination linger.10

“This theory of continuing violation has to be guardedly employed

because within it are the seeds of the destruction of statutes of

limitation in Title VII cases.”11 Moreover, the continuing

violation theory does not alleviate a plaintiff’s obligation to

demonstrate that the harassment was both perpetrated on her and

negatively affected her.

After carefully reviewing the record in light of Ulanoff’s

arguments, we discern no support for her contention that the

harassment was a continuing violation. The record gives no

9 See Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983). 10 See id. 11 Abrams v. Baylor College of Medicine, 805 F.2d 528, 533 (5th Cir. 1986).

10 indication that Ulanoff was harassed by anyone other than Bertetti,

and he retired in October 1992. Thus, she cannot and has not shown

that she suffered any harassment within the relevant 45 day window

for filing her complaint. The Post Office’s affirmative defense of

time bar is valid.

C. The Retaliatory Removal Claim

Ulanoff alleged that she was removed from her 204-B job of

acting supervisor in retaliation for having engaged in protected

EEO activity. To establish a claim of reprisal discrimination,

Ulanoff must show that (1) she engaged in activity protected by

Title VII, (2) an adverse employment action occurred, and (3) there

was a causal connection between these two events.12 Ulanoff has

shown that she engaged in protected activity by reporting her

claims to an EEO counselor and filing a complaint with the EEOC.

She has also shown that she suffered an adverse employment action,

when she was removed from a 204-B position as acting supervisor and

returned to her former status of mail carrier. Like the district

court, however, we conclude that Ulanoff has failed to establish

the required causal link between her protected activity and the

adverse employment action that she suffered.

For Ulanoff to show a causal connection, she must demonstrate,

at a minimum, that those responsible for her removal from the 204-B

position were aware that she had filed a complaint against the

12 See Long v. Eastfield College, 88 F.3d 300, 304 (5th Cir. 1996).

11 agency based on her supervisor’s alleged misconduct. The record,

however, does not support this contention, containing no evidence

that those responsible for the relevant employment decision had any

knowledge of her harassment complaint. Neither is there any

evidence implying that those who made the decision to demote

Ulanoff did so in retaliation for her protected activity. In fact,

the record actually shows that those who Ulanoff claims acted in

retaliation (such as Casias) had no input in the decision to return

her to her former position as a mail carrier.

III. Conclusion

After carefully reviewing the briefs of the parties and

relevant portions of the record, we conclude that the district

court did not err in granting summary judgment for the Post Office,

dismissing Ulanoff’s claims of sexual harassment and retaliatory

removal. Her sexual harassment claim is barred as untimely filed,

and she failed to produce probative evidence of a causal connection

between her protected EEO activity and her removal from the

position of acting supervisor. The judgment of the district court

is, in all respects,

AFFIRMED.