United States Court of Appeals,
Fifth Circuit.
No. 88–1712.
Norman R. WOOD, Jr., Plaintiff–Appellant,
v.
UNITED STATES POSTAL SERVICE, et al., Defendants, United States Postal Service, Defendant–Appellee.
March 30, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District Judge.1
LITTLE, District Judge:
Finding mortal impediments in Wood's suit contesting his
discharge as a postal letter carrier, the district court dismissed
his action. Wood appealed. We reverse and remand with
instructions.
The U.S. Postal Service employed Norman R. Wood, Jr. as a
letter carrier. He was discharged effective 19 January 1985.
Feeling that his discharge was due to impermissible discrimination,
Wood pursued counseling with an EEO employee, Carlos E. Morris.
Wood's desired relief from the administrative channels of the
EEO was not forthcoming. A formal complaint with the EEOC was
filed on 29 March 1985. The complaint was denied by letter dated
11 February 1986. In the letter Wood was advised that he had
1 District Judge of the Western District of Louisiana, sitting by designation. thirty days from receipt of the letter to file a civil action in
the appropriate United States District Court.
It is uncontested that the complaint filed by Wood was filed
in a proper venue within thirty days of his receipt of the right to
sue letter. That filing occurred on 14 March 1986 in the El Paso
division of the Western District of Texas. In the style of his pro
se prepared petition, Wood names as defendants the "United States 2 Postal Service and Carlos E. Morris, the EEO Counselor."
Paragraph 4 of the petition describes the defendants thusly:
Defendant, UNITED STATES POSTAL SERVICE is an employer within the meaning of 42 U.S.C. 2000e(b). It can be served with process through its local receiver, POSTMASTER EMILIO GARCIA, UNITED STATES POST OFFICE, 5300 E. PAISANO, EL PASO, TEXAS 79910, and CARLOS E. MORRIS, EEO COUNSELOR, UNITED STATES POST OFFICE, 5300 E. PAISANO ST., EL PASO, TEXAS 79910.
The entire chronology of the record subsequent to the March
filing need not be reproduced. There are uncontested events
however that merit highlighting.
Accompanied by his original petition, Wood's application to
proceed in forma pauperis was filed 14 March 1986. The application
was granted on 24 March 1986. The U.S. Marshal served Emilio
2 Technically, Morris remains as a named party defendant, although the transcript clearly reveals a contrary intention by counsel for the plaintiff. When the district judge asked the plaintiff's attorney if Morris, an innocent party, could be dismissed, the attorney responded:
That's right, your honor, absolutely your honor.
The court's judgment of 15 August 1988 finds that Morris is immune from suit. No issue is taken with that portion of the judgment by appellant. Garcia, the El Paso Postmaster, and the U.S. Attorney for the
Western District of Texas on 1 April 1986. Wood filed a motion for
appointment of counsel on 2 April 1986. On 7 April 1986, the
Attorney General, Edwin Meese III, was served by certified mail.
The U.S. Attorney filed a motion to dismiss, or in the
alternative, a motion for summary judgment on 2 June 1986. There
are two prongs to the motion. First, the Government argued that
the trial court had no jurisdiction over the postal service as the
only proper defendant is the head of that agency in his official
capacity. 42 U.S.C. § 2000e–16. In other words, the plaintiff
failed to name and serve the proper defendant within thirty days of
receipt of the right to sue letter. Even an amendment to the
complaint would not eradicate that defect, or so the U.S. Attorney
argued. Second, the U.S. Attorney claimed that Wood failed to
exhaust his administrative remedies. The government observed that
28 C.F.R. 1613.214(a)(1)(i) requires that such a complaint must be
brought to the attention of an EEO counselor within thirty days of
the alleged discrimination. The appellee, in its summary judgment
motion, asserts that Wood was effectively fired on 19 January 1985,
and did not communicate with an EEO counselor until 19 February,
1985, some thirty-one days after the discriminatory act.
The counter-argument tendered by lawyerless Wood was that the
thirty day right to sue letter advised him that a timely suit must
be filed within thirty days. According to Wood, suit was filed
within thirty days. The filing, when coupled with the reasons for failure to serve timely the proper defendant, justify application
of the doctrine of equitable tolling. Wood also filed a motion to
amend his petition to name and serve the proper defendant, the U.S.
Postmaster. Moreover, Wood presented written argument and evidence
in opposition to the allegation that he failed to exhaust
administrative remedies.
Prior to oral argument on the motion, Wood engaged the
services of an attorney. Finding that the court had no
jurisdiction and that Wood had not exhausted his administrative
remedies, the court ordered dismissal of the suit.
Wood's appeal to this court resulted in an affirmation without
opinion. Wood v. U.S. Post Office, 873 F.2d 295 (5th Cir.1989).
The Supreme Court granted Wood's writ for certiorari and vacated
our decision and remanded the case for further consideration in
light of Irwin v. Veterans Administration, 498 U.S. ––––, 111 S.Ct.
453, 112 L.Ed.2d 435 (1990); Wood v. U.S. Postal Service, ––– U.S.
––––, 111 S.Ct. 1575, 113 L.Ed.2d 641 (1991).
EQUITABLE TOLLING
In Irwin, a fired VA employee and his attorney were mailed
notices from the EEOC denying Irwin's claim for wrongful discharge.
The letter was received in Irwin's attorney's office on 23 March.
Irwin received the letter on 7 April. Irwin's attorney was out of
the country and did not learn of the EEOC action until 10 April. A complaint was filed in federal court on 6 May, forty-four days
after the notice was received at the attorney's office, but
twenty-nine days after the date on which Irwin received the letter.
Irwin argued that the thirty day period should run from the date he
received the letter and, if not, the statute should be subject to
the doctrine of equitable tolling.
The Supreme Court affirmed the dismissal of Irwin's suit, and
ruled that the thirty day period began to run from the date of
receipt by the person first to receive notice, in this case Irwin's
attorney. In so doing, however, the Supreme Court harmonized the
doctrine of tolling with waiver of sovereign immunity. The court
explains the possible expansion of the doctrine of waiver of
sovereign immunity with the following language:
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United States Court of Appeals,
Fifth Circuit.
No. 88–1712.
Norman R. WOOD, Jr., Plaintiff–Appellant,
v.
UNITED STATES POSTAL SERVICE, et al., Defendants, United States Postal Service, Defendant–Appellee.
March 30, 1992.
Appeal from the United States District Court for the Western District of Texas.
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District Judge.1
LITTLE, District Judge:
Finding mortal impediments in Wood's suit contesting his
discharge as a postal letter carrier, the district court dismissed
his action. Wood appealed. We reverse and remand with
instructions.
The U.S. Postal Service employed Norman R. Wood, Jr. as a
letter carrier. He was discharged effective 19 January 1985.
Feeling that his discharge was due to impermissible discrimination,
Wood pursued counseling with an EEO employee, Carlos E. Morris.
Wood's desired relief from the administrative channels of the
EEO was not forthcoming. A formal complaint with the EEOC was
filed on 29 March 1985. The complaint was denied by letter dated
11 February 1986. In the letter Wood was advised that he had
1 District Judge of the Western District of Louisiana, sitting by designation. thirty days from receipt of the letter to file a civil action in
the appropriate United States District Court.
It is uncontested that the complaint filed by Wood was filed
in a proper venue within thirty days of his receipt of the right to
sue letter. That filing occurred on 14 March 1986 in the El Paso
division of the Western District of Texas. In the style of his pro
se prepared petition, Wood names as defendants the "United States 2 Postal Service and Carlos E. Morris, the EEO Counselor."
Paragraph 4 of the petition describes the defendants thusly:
Defendant, UNITED STATES POSTAL SERVICE is an employer within the meaning of 42 U.S.C. 2000e(b). It can be served with process through its local receiver, POSTMASTER EMILIO GARCIA, UNITED STATES POST OFFICE, 5300 E. PAISANO, EL PASO, TEXAS 79910, and CARLOS E. MORRIS, EEO COUNSELOR, UNITED STATES POST OFFICE, 5300 E. PAISANO ST., EL PASO, TEXAS 79910.
The entire chronology of the record subsequent to the March
filing need not be reproduced. There are uncontested events
however that merit highlighting.
Accompanied by his original petition, Wood's application to
proceed in forma pauperis was filed 14 March 1986. The application
was granted on 24 March 1986. The U.S. Marshal served Emilio
2 Technically, Morris remains as a named party defendant, although the transcript clearly reveals a contrary intention by counsel for the plaintiff. When the district judge asked the plaintiff's attorney if Morris, an innocent party, could be dismissed, the attorney responded:
That's right, your honor, absolutely your honor.
The court's judgment of 15 August 1988 finds that Morris is immune from suit. No issue is taken with that portion of the judgment by appellant. Garcia, the El Paso Postmaster, and the U.S. Attorney for the
Western District of Texas on 1 April 1986. Wood filed a motion for
appointment of counsel on 2 April 1986. On 7 April 1986, the
Attorney General, Edwin Meese III, was served by certified mail.
The U.S. Attorney filed a motion to dismiss, or in the
alternative, a motion for summary judgment on 2 June 1986. There
are two prongs to the motion. First, the Government argued that
the trial court had no jurisdiction over the postal service as the
only proper defendant is the head of that agency in his official
capacity. 42 U.S.C. § 2000e–16. In other words, the plaintiff
failed to name and serve the proper defendant within thirty days of
receipt of the right to sue letter. Even an amendment to the
complaint would not eradicate that defect, or so the U.S. Attorney
argued. Second, the U.S. Attorney claimed that Wood failed to
exhaust his administrative remedies. The government observed that
28 C.F.R. 1613.214(a)(1)(i) requires that such a complaint must be
brought to the attention of an EEO counselor within thirty days of
the alleged discrimination. The appellee, in its summary judgment
motion, asserts that Wood was effectively fired on 19 January 1985,
and did not communicate with an EEO counselor until 19 February,
1985, some thirty-one days after the discriminatory act.
The counter-argument tendered by lawyerless Wood was that the
thirty day right to sue letter advised him that a timely suit must
be filed within thirty days. According to Wood, suit was filed
within thirty days. The filing, when coupled with the reasons for failure to serve timely the proper defendant, justify application
of the doctrine of equitable tolling. Wood also filed a motion to
amend his petition to name and serve the proper defendant, the U.S.
Postmaster. Moreover, Wood presented written argument and evidence
in opposition to the allegation that he failed to exhaust
administrative remedies.
Prior to oral argument on the motion, Wood engaged the
services of an attorney. Finding that the court had no
jurisdiction and that Wood had not exhausted his administrative
remedies, the court ordered dismissal of the suit.
Wood's appeal to this court resulted in an affirmation without
opinion. Wood v. U.S. Post Office, 873 F.2d 295 (5th Cir.1989).
The Supreme Court granted Wood's writ for certiorari and vacated
our decision and remanded the case for further consideration in
light of Irwin v. Veterans Administration, 498 U.S. ––––, 111 S.Ct.
453, 112 L.Ed.2d 435 (1990); Wood v. U.S. Postal Service, ––– U.S.
––––, 111 S.Ct. 1575, 113 L.Ed.2d 641 (1991).
EQUITABLE TOLLING
In Irwin, a fired VA employee and his attorney were mailed
notices from the EEOC denying Irwin's claim for wrongful discharge.
The letter was received in Irwin's attorney's office on 23 March.
Irwin received the letter on 7 April. Irwin's attorney was out of
the country and did not learn of the EEOC action until 10 April. A complaint was filed in federal court on 6 May, forty-four days
after the notice was received at the attorney's office, but
twenty-nine days after the date on which Irwin received the letter.
Irwin argued that the thirty day period should run from the date he
received the letter and, if not, the statute should be subject to
the doctrine of equitable tolling.
The Supreme Court affirmed the dismissal of Irwin's suit, and
ruled that the thirty day period began to run from the date of
receipt by the person first to receive notice, in this case Irwin's
attorney. In so doing, however, the Supreme Court harmonized the
doctrine of tolling with waiver of sovereign immunity. The court
explains the possible expansion of the doctrine of waiver of
sovereign immunity with the following language:
Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation. We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.... Because the time limits imposed by Congress in a suit against the Government involve a waiver of sovereign immunity, it is evident that no more favorable tolling doctrine may be employed against the Government than is employed in suits between private litigants.... But the principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.
Irwin, 498 U.S. –––– at ––––, 111 S.Ct. 453 at 457–58, 112 L.Ed.2d
435 at 444.
Appellant argues as follows: The appellant pursued his case diligently but because of the delay (that was caused in processing his application to proceed in forma pauperis) and the fact that he did not have the assistance of legal counsel, the requirements of completing all filing and service within the thirty day limitation period could not be met.
The facts and circumstances supporting Wood's assertion of
equitable tolling have never been considered by the district court.
In light of the mandate in Irwin, we remand to the district court
to determine if Wood's culpa is excused under equitable tolling
principles.
SUMMARY JUDGMENT
A grant of summary judgment is reviewed de novo by this court
applying the same substantive test as the district court. General
Electric v. Southeastern Health Care, 950 F.2d 944, 948 (5th
Cir.1991), citing with approval Walker v. Sears, Roebuck and
Company, 853 F.2d 355, 358 (5th Cir.1988); Resolution Trust Corp.
v. McCrory, 951 F.2d 68, 71 (5th Cir.1992), citing with approval
FDIC v. Hamilton, 939 F.2d 1225, 1227 (5th Cir.1991). Rule 56(c)
of the Federal Rules of Civil Procedure permits the granting of a
summary judgment motion if, considering the pleadings and materials
submitted in a light most favorable to the non-moving party, they
"show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c)
Here, EEO agent Morris stated, by affidavit, that Wood had not
made a communication with Morris within thirty days of the effective date of Wood's removal from employment. The affidavit
also states that a counseling report form filed by Morris, with the
notation that the request for counseling had been submitted timely,
was made in error. Wood attaches to his opposition a copy of a
letter written to the EEOC wherein Wood states that he communicated
with Morris on 5 February 1985, well within the thirty day period.
Wood also presented a copy of a letter to the EEOC written by the
President of Wood's representative union, which complained about
Morris' methodology in logging the date of initial communications.
In analyzing a summary judgment motion, we do not weigh the
evidence or make credibility determinations. We review the record
and our review of the record in this case leads us to the
conclusion that there is conflicting factual evidence on the
critical issue of the initial date of communication with the
counseling official. The conflict here is of such import that if
this evidence were submitted to a fact finder, a favorable decision
to Wood might result.
For the foregoing reasons, the summary judgment granted by the
district court on the issue of plaintiff's failure to sue or serve
the proper defendant is REVERSED and REMANDED for further
consideration in light of Irwin v. Department of Veteran's Affairs,
498 U.S. ––––, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The summary
judgment granted by the district court on the issue of plaintiff's
failure to exhaust administrative remedies is REVERSED and REMANDED
for resolution of the factual dispute.