Diane Bailey v. U.S. Postal ServiceDiane Bailey v. U.S. Postal Service
Diane Bailey appeals from an adverse grant of summary judgment on her sex discrimination claim, based on Title VII of the Civil Rights Act of 1964 (Title VII),
Bailey, a postal employee, claims that on February 23, 1998, the Postmaster for Harrison, Arkansas, shouted at her in the presence of other employees and in the hearing of customers. This encounter humiliated and embarrassed Bailey, allegedly upsetting her to the point of tears. Over the next several months, Bailey communicated with various supervisors and Equal Employment Opportunity (EEO) counselors within the Postal Service, informing them about the incident and seeking advice on how she might proceed.
Bailey first made a written request to the Postal Service for EEO counseling on July 13, 1998, in which she described the encounter and claimed sex discrimination. This eventuated in a formal administrative complaint, which the Postal Service dismissed as untimely. Bailey filed the instant suit on December 18, 1998, invoking Title VII and also claiming intentional infliction of emotional distress. The district court1 granted the Postal Service‘s motion for summary judgment on both counts, and Bailey appeals on the Title VII claim.
II.
We review a grant of summary judgment de novo, applying the same standard as the district court. See Henerey v. City of St. Charles School Dist., 200 F.3d 1128, 1131 (8th Cir. 1999). Summary judgment should be granted if the evidence, viewed in the light most favorable to the nonmoving party, indicates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See id.;
Before bringing discrimination claims, Title VII plaintiffs must exhaust available administrative remedies. See Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999). Specifically, employees of federal government agencies who believe that they have been discriminated against “must consult a[n EEO] Counselor prior to filing a complaint in order to try to informally resolve the matter.”
We find that Bailey did not meet this deadline. Although Bailey did speak with Postal Service EEO counselors within 45 days after her encounter with the Harrison Postmaster, the government submitted reports and affidavits indicating that these counselors informed Bailey that her conversations with them would not be considered requests for counseling and that such requests needed to be submitted in writing within 45 days of the alleged discriminatory incident. Bailey did not specifically argue before the district court that her early conversations with the EEO counselors constituted requests for counseling under
In addition, Bailey was not excused from complying with the 45-day requirement. In addition to having been notified of the deadline when she spoke with the EEO counselors after the incident, the government‘s evidence indicates that Bailey was “otherwise aware” of the requirement, see
We also find Bailey‘s other arguments to be without merit. Bailey is not entitled to estoppel because she has not shown that her failure to file in a timely fashion was the consequence of either a deliberate design by the Postal Service or of actions that the Postal Service should have understood would cause Bailey to delay filing. See Hamilton v. West, 30 F.3d 992, 994 (8th Cir. 1994). Similarly, Bailey has offered no specifics in support of her argument that the filing deadline should have been extended because harassing behavior continued after the February 23, 1998, shouting incident. Because her July 13, 1998, request for EEO counseling occurred well after the expiration of the 45-day period, we agree with the district court that Bailey failed to exhaust her administrative remedies.
The summary judgment is affirmed.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.