Title VII Appellate Brief: EEOC Filing Deadlines & Equitable Estoppel

Appellant seeks review of the decision of the United States District Court for the District of Anytown, which granted judgment in favor of appellees — the United States Postal Service (U.S.P.S.) and its Regional Supervisor — on their motion to dismiss appellant's complaint for failure to exhaust administrative remedies. Appellant's lawsuit alleged gender discrimination, hostile work environment, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The questions presented are whether appellant provided sufficient facts to warrant tolling her claim under a theory of equitable estoppel, or whether the Court should refuse to hear her claims because they were filed after the applicable limitations period. Specifically:

1) Does the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) prevent appellant from bringing her claim?

2) Is the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) triggered by the last act of discrimination, or when a plaintiff claims a constructive discharge?

3) Is appellant equitably estopped from bringing her claim?

Jurisdiction of this Court is invoked under Section 1291, Title 28, United States Code, as an appeal from a final judgment in the United States District Court for the District of Anytown. Notice of appeal was timely filed in accordance with Rule 4(b) of the Federal Rules of Appellate Procedure.

The standard of review refers to the deference that an appellate court gives to the lower court's decisions and is a question of federal procedure governed by federal law. Freund v. Nycomed Amersham, 347 F.3d 752, 762 (9th Cir. 2003). The Court is being asked to determine whether appellant's case is moot, which depends on the Court's interpretation of two statutes and its determination of whether the judicial principle of equitable estoppel would apply to bar the statute of limitations. Questions of mootness, statutory interpretation, and the application of equitable relief are all questions of law — not questions of fact — triggering the de novo standard of review.

The use of the de novo standard of review to resolve questions of law has been explained by the Supreme Court as follows:

"District judges preside alone over fast-paced trials: of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of extended reflection or extensive information. … Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues." Salve Regina College v. Russell, 499 U.S. 225, 231–32 (1991).

Appellant worked for U.S.P.S. as a full-time mail carrier between May 2011 and August 2014 after having been hired by former Regional Supervisor Chandler Bing. In November 2011, appellant was relocated to another region for poor performance on her assigned route, and U.S.P.S. placed the appellee Regional Supervisor in charge of her work. Appellant alleged gender discrimination by the Regional Supervisor, including his failure to issue her a pay raise on the stated grounds that she should find a man to support her, and his failure to upgrade her to a more senior route.

In July 2013, appellant began to complain to appellee U.S.P.S.'s Human Resources Manager, Edith Lehr. Lehr initiated an investigation into the Regional Supervisor's conduct. However, Lehr was involved in a sporadic romantic relationship with the Regional Supervisor and discouraged appellant's active pursuit of a misconduct claim. The Regional Supervisor continued to describe appellant's work as "a man's job," assigned her menial tasks, and delivered a speech at a company picnic commenting on appellant's need to find a husband and quit the workforce. Appellant resigned on August 6, 2014.

On September 16, 2014, appellant met with an Equal Employment Opportunity Commission (EEOC) counselor to discuss the Regional Supervisor's conduct throughout her employment. The EEOC counselor failed to file a complaint on her behalf. Appellant filed a charge of gender discrimination against appellees with the EEOC on September 19 — forty-five days after quitting her job. By October 10, 2014, appellant received notice from the EEOC that her complaint was being rejected on the grounds that she had waited more than forty-five days after the last alleged discriminatory act to contact an EEOC counselor.

On December 18, 2014, appellant filed a lawsuit in the United States District Court for the District of Anytown, alleging that the Regional Supervisor had discriminated against her on the basis of gender, created a hostile work environment, and caused her constructive discharge. Appellant filed the same claims against appellee U.S.P.S. under the doctrine of respondeat superior. Appellees filed a motion to dismiss for failure to exhaust administrative remedies, which the lower court granted.

The lower court did not err when it granted summary judgment in favor of appellees because the claim was barred by the statute of limitations, laches prevented the appellant from bringing older claims, and equitable estoppel did not apply to bar the statute. Although appellant filed her complaint with the EEOC within 45 days of ending her employment with appellee U.S.P.S., she did not file her complaint within 45 days of the last alleged act of discrimination. The time limitation outlined in 29 C.F.R. § 1614.105(a)(1) is triggered by the last act of discrimination, not when a plaintiff claims a constructive discharge. Therefore, the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) prevented appellant from bringing her claim. Furthermore, appellant is equitably estopped from bringing her claim because nothing the appellees did was responsible for her delay and she did not meet the exceptions contained in 29 C.F.R. § 1614.105(a)(2). Specifically:

A. The limitations period was triggered by the last act of discrimination and not the constructive discharge, because appellant failed to allege a pattern of behavior that would constitute continuing discrimination after her last alleged discrete act of discrimination.

B. Because the statute of limitations was triggered by that last act, appellant cannot bring a continuing violations claim. While this result deprives appellant of an opportunity to have her legal claims heard, the 45-day period was designed to improve efficiency and prevent employers from being forced to litigate stale claims where evidence could be difficult to gather.

C. While there is some support in case law for the idea that a constructive discharge resulting from gender-based discrimination is, in and of itself, an act of discrimination, a constructive discharge alone is not sufficient to demonstrate ongoing discrimination. Plaintiffs may allege that a constructive discharge is the result of a pattern of discrimination but must provide factual support for a pattern that was ongoing at the time of the constructive discharge. Allowing plaintiffs to use the date of an alleged constructive discharge as the date of the last occurrence of discrimination would defeat the purpose of the statute of limitations, reviving continuing violations claims and inviting the introduction of the type of stale evidence the statute seeks to avoid. Furthermore, it would allow a plaintiff alleging constructive discharge to claim harassment even if an employer had remedied the harassment, if the employer later terminated the plaintiff for any reason or the plaintiff decided to leave for any reason at any time after an act of discrimination.

D. Appellee U.S.P.S.'s invocation of equitable estoppel is a valid defense because the actions of the Postal Service did not delay appellant from pursuing her claim.

E. There is no evidence suggesting that the statutory exceptions outlined in 29 C.F.R. § 1614.105(a)(2) apply to this scenario. Appellant was aware of the statutory time limits contained in 29 C.F.R. § 1614.105(a)(1) and has failed to allege that appellees engaged in behavior that would have prevented her from bringing her claim within the statutory time period.

29 C.F.R. § 1614.105(a)(1) provides the time limits for initiating contact with the EEOC in order to preserve a claim against an employer. It states: "Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). The language of the statute is clear and requires a plaintiff to bring their complaint within 45 days of the matter alleged to be discriminatory.

Looking at her pleadings, appellant alleged a series of discriminatory behaviors by the Regional Supervisor and, under respondeat superior, against appellee U.S.P.S. She also alleges that she complained of the discrimination to the Human Resources Department at appellee U.S.P.S. and that U.S.P.S.'s failure to address the sexual harassment through its internal process was itself a form of sexual harassment. However, appellant was aware that appellee U.S.P.S.'s investigation had not resulted in action that would remedy the discrimination. Furthermore, the fact that a plaintiff has filed a grievance or other internal complaint of workplace discrimination is not sufficient to toll the running of the limitations period. Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229 (1976).

Before examining whether the statute of limitations should be tolled, it is important to note that there is a statutory exception to the 45-day filing period under 29 C.F.R. § 1614.105(a)(2). If appellant could demonstrate that exception was applicable, she would be allowed to bring her claim regardless of how the Court defines the last act of discrimination. The limitations period under Title VII operates as a statute of limitations, meaning it can bar claims not brought within the statutory period. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393–94 (1982). However, as with any normal statute of limitations, the limitations period in Title VII is "subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

There is also a statutory guideline for tolling the limitations period. Under 29 C.F.R. § 1614.105(a)(2):

"The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a)(2).

There is nothing in appellant's allegations to suggest that she was unaware of the time limitations imposed by the statute. There is also nothing in her allegations to suggest that appellees did anything to prevent her from filing a claim within the statutory period.

Therefore, the determination of whether appellant filed within the 45-day period depends upon how the Court defines the last act of discrimination. Appellant maintains that the discrimination continued until the point at which she quit or was constructively discharged. However, merely alleging continued employment is insufficient to prolong a cause of action for employment discrimination. United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977). Instead, if a plaintiff wishes to establish that a discharge was the result of discrimination, the plaintiff must allege discriminatory acts that continued until the time of the actual termination. Delaware State Coll. v. Ricks, 449 U.S. 250, 259–260 (1980).

This means that it is not sufficient for an employee merely to establish a pattern of discrimination. A pattern of discrimination could exist, but still not be the cause of a termination or constructive termination. Moreover, a pattern of discrimination could have existed and been remedied prior to the employee's departure from the company. In order for the Court to examine events that occurred outside of the limitations period as part of a discrimination claim, those events must be considered part of an ongoing pattern of unlawful employment practices. Green v. Los Angeles County Superintendent, 883 F.2d 1472, 1475 (9th Cir. 1989). Therefore, in order to survive a motion for summary judgment, a plaintiff "must demonstrate that a genuine issue exists as to whether the violation continued into the relevant period of limitations." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998). In other words, to bring a claim based on events that occurred outside of the statutory limitations period, a plaintiff must allege sufficient facts to connect those events to events that occurred within the limitations period. "The start of the limitations period for constructive-discharge claims is the same as for other claims of discrimination." Green v. Donahoe, 760 F.3d 1135, 1142 (2014).

This does not mean that the date of a constructive discharge can never be considered the last date of discrimination under the statute. One issue the Court examines is whether the discharge is "the inexorable result" of the employer's behavior. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998). When it is, then the actual conduct — not the date of discharge — becomes the triggering event for purposes of the statute of limitations. This could be the case if an employee was being reviewed for tenure or had a workplace evaluation that would lead to discharge, constructive or otherwise: the discrimination would occur at the time of the negative review, rather than on the actual date of separation. However, in the present scenario, appellant's discharge was not the inexorable result of the employer's behavior. Appellant could have chosen to remain at the company and did, in fact, continue working there during periods she described as involving significant sexual harassment. There was no particular triggering event that made her departure from appellee U.S.P.S. inevitable, even if the conduct she describes makes her decision to leave understandable.

In examining constructive discharge, the Court must look at whether the constructive discharge follows automatically from the employer's conduct, whether considered as a whole or when examining a single discrete act. Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998). This is because constructive discharge differs from other types of wrongful termination in one significant manner: "it requires in each case an exercise of independent judgment on the part of the employee." Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998).

Appellant chose the date of her constructive discharge. She fails to allege a single triggering event that led to her leaving employment with appellee U.S.P.S., instead describing a pattern of discriminatory behavior that led to her decision to leave. Furthermore, she fails to allege any acts of discrimination that would reach back and connect the acts she does describe — which fall outside the limitations period — to a pattern of discrimination existing within the statutory limitations period.

Appellant also contends that equitable estoppel should prevent appellee U.S.P.S. from raising a statutory bar to her claim. The principle of estoppel holds that a party should not be able to benefit from a statutory bar to a suit, such as a statute of limitations, if that party's previous conduct, allegations, or denials are contrary to that claim. There is no strict guideline for determining whether a party is entitled to equitable relief. On the contrary, the "application of equitable principles is, in essence, relief from the harshness of mechanical rules. It would, therefore, be inconsistent with the concept of equity to lay down hard and fast rules governing when such relief would be available. A case-by-case analysis, the 'balancing of the equities,' is thus the usual approach when a party seeks to be excused from the indiscriminate sweep of a rigid statute." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995).

Moreover, when discussing statutes of limitations and their severity, the Dring court acknowledged that statutes of limitations are very unforgiving for plaintiffs and can produce inequitable outcomes:

"Few statutes are less forgiving than those of limitation, but this severity comes with good reason … Hence, while it is inherently difficult to predict when resort to the saving grace of equitable modification is appropriate, it is important to remember that such relief is an exception to the rule, and should therefore be used only in exceptional circumstances." Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995).

Generally, these exceptional circumstances require some conduct on the part of a defendant that would have prevented a reasonable plaintiff from bringing suit within the applicable period. The Court must therefore examine appellees' behavior to determine whether their actions would have somehow prevented appellant from bringing her claim on time.