Aaron J. DOUGLAS, Plaintiff-Appellant, v. Gale A. NORTON, Secretary, United States Department of Interior, Defendant-Appellee.
No. 03-1407.
United States Court of Appeals, Tenth Circuit.
Jan. 19, 2006.
167 Fed. Appx. 698
John W. Suthers, U.S. Attorney, Michael E. Hegarty, Elizabeth A. Weishaupl, Robert M. Russel, Office of the United States Attorney, Denver, CO, for Defendant-Appellee.
Before KELLY, ANDERSON, and O‘BRIEN, Circuit Judges.
ORDER AND JUDGMENT*
TERRENCE L. O‘BRIEN, Circuit Judge.
The district court dismissed Aaron Douglas’ Title VII race discrimination complaint without prejudice for lack of subject matter jurisdiction based on his failure to exhaust administrative remedies. Douglas appeals. Exercising jurisdiction under
* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1. Although the district court dismissed Douglas’ First Amended Complaint without prejudice, we have jurisdiction over this appeal because the dismissal disposed of the entire case. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir.2001) (“Although a dismissal without prejudice is usually not a final decision, where the dismissal finally disposes of the case so that it is not subject to further proceedings in federal court, the dismissal is final and appealable.“). Moreover, the district court should have dismissed this case with prejudice.
I. Factual Background
Douglas, an African-American, holds a Master‘s Degree in Forestry and a Ph.D. in Economics. In December 1986, he began working as a GS-9 Economist for the United States Fish and Wildlife Service at the Midcontinent Ecological Science Center in Fort Collins, Colorado. Between 1987 and 1994, Douglas was promoted to a GS-13. In 1996, his position was transferred to the Biological Resources Division of the U.S. Geological Survey, a division of the Department of Interior.
Douglas is a member of the National Federation of Federal Employees and is covered by a collective bargaining agreement. The collective bargaining agreement sets forth a four-step grievance procedure.3 The agreement states such procedure is to be the exclusive method for resolving employee grievances except “[a]n aggrieved employee affected by discrimination ... may at his/her option raise the matter under a statutory appellate procedure or the negotiated grievance procedure, but not both.” (R.App. at 92.) The collective bargaining agreement defines “grievance” to include any complaint by any employee “concerning any matter relating to the employment of any employee” but expressly excludes a complaint concerning “the classification of any position that does not result in the reduction in pay or grade for the employee....” (Id. at 91.)
4. Douglas received official notice of the panel‘s decision on September 26, 1999.
Thereafter, on September 1, 1999, Douglas contacted Fred Gonzalez, a counselor at the U.S. Geological Survey‘s Equal Employment Opportunity (EEO) office, stating he wished to file a discrimination claim concerning the Research Grade Evaluation Panel‘s decision. Douglas claims Gonzalez erroneously informed him he could file such complaint with either the EEO office or through the collective bargaining agreement‘s grievance procedure. A week later, on September 9, 1999, Douglas wrote a memo to the U.S. Geological Survey‘s EEO office alleging the Research Grade Evaluation Panel denied his request for reclassification based on his race. Specifically, he challenged the panel awarding him only twelve points (out of a possible twenty) for his “Qualifications and Scientific Contributions” because he had not published extensively in “first tier” economic journals. (Id. at 99-100.) Douglas claimed these “first tier” journals predominately published the works of white authors. As a result, he suggested a three member panel of university professors judge his publications based on the quality of their content rather than the quality of the journal in which they appeared. He also provided other suggestions for achieving a “color blind rating process.” (Id. at 104.)
Between September and November 1999, Douglas and the U.S. Geological Survey attempted to settle the matter. On November 22, 1999, a mediation was held. Settlement negotiations were unsuccessful. Therefore, on November 29, 1999, Douglas filed a formal complaint with Gonzalez alleging the denial of his re-certification request constituted race discrimination. In this complaint, Douglas stated:
As you [ ] recall, you recently checked the [collective bargaining agreement] to make sure [it] covered the use of the negotiated grievance procedure for discrimination complaints.... Page 15 of the [agreement] allows for the use of the negotiated grievance procedure as a venue for filing discrimination complaints.... I have previously forwarded several written documents to your office indicating the nature of the complaint and its relation to the [Research Grade Evaluation Panel‘s] finding that promotion was not warranted on the basis of my research achievements. However, I had not formally stated that I wish to go forward with the EEO compl[ai]nt. This signed letter indicates that I do wish to go forward with a formal EEO complaint in accordance with the [collective bargaining agreement‘s] grievance procedure.
(Id. at 107 (emphasis added).)
Thereafter, Douglas and the U.S. Geological Survey again attempted to settle the matter. On February 23, 2000, the Regional Director of the U.S. Geological Survey‘s Biological Resources Division sent Douglas a proposed settlement agreement. The agreement suggested, inter alia, that Douglas’ classification be re-reviewed by a new Research Grade Evaluation Panel charged with concentrating on the scientific merits of Douglas’ publications and that Douglas be permitted to nominate at least one member of the new panel.
On March 13, 2000, Douglas’ supervisor, Berton Lamb, responded to Douglas’ second grievance. Lamb stated he did not consider Douglas’ March 3, 2000 grievance “new” because, like the first grievance, it alleged the U.S. Geological Survey‘s rating-promotion process was racially prejudicial. Lamb also informed Douglas that complaints concerning the classification of one‘s position not resulting in a reduction in pay or grade were expressly excluded from the scope of the negotiated grievance procedure. He further advised Douglas that classification decisions could be appealed by filing an appeal directly with the Office of Personnel Management or by filing an appeal first with the U.S. Geological Survey and then with the Office of Personnel Management. Attached to Lamb‘s response was information providing guidance on filing a classification appeal.
On March 14, 2000, Douglas submitted a third grievance essentially reiterating the March 3, 2000 grievance. In this grievance, Douglas claimed “all white economists who have a doctorate degree in economics and have been full-time federal employees of the U.S. Geological Survey for more than 5-years are rated as GS-15 employees.” (Id. at 134-35.) On April 3, 2000, Douglas Posson, Director of the Midcontinent Ecological Science Center, issued a memorandum to Douglas interpreting Douglas’ March 14, 2000 grievance as an appeal of Lamb‘s denial of his grievance. Posson affirmed the denial, stating:
I do not dispute your right to file a complaint involving discrimination using the negotiated grievance procedure. I am rejecting your grievance on the basis that your new grievance is based on the same matter(s) as your original grievance, which was filed in an untimely manner and subsequently withdrawn.... Secondly, even if your grievance had been filed in a timely manner the remedy you are seeking involves a classification process other than those allowed by [the Office of Personnel Management] and ... the classification of a position is not a grievable issue.
(Id. at 141.) Posson also addressed Douglas’ concern that he was receiving different information about the time frames for filing an EEO complaint. Posson informed Douglas there was a clear distinction between the filing of a discrimination complaint with the EEO office and the filing of a similar complaint under the collective bargaining agreement‘s grievance procedure. Because Douglas had elected to proceed under the latter, Posson advised Douglas that the time frames outlined in the negotiated grievance procedure must be followed. Posson further advised Douglas that if he was not satisfied with Posson‘s decision, the union could request arbitration on his behalf.
The next day, April 4, 2000, Douglas notified Posson and Lamb that he wished to proceed to arbitration. In this notification, Douglas expressed his disagreement with Posson and Lamb‘s interpretation of the collective bargaining agreement. Specifically, he contended that although complaints concerning one‘s classification were excluded from the grievance process, this exclusion did not apply to classification complaints alleging discrimination.
5. Pursuant to the collective bargaining agreement‘s grievance procedure, arbitration may only be invoked by the union or the employer. Therefore, only the union, the U.S. Geological Survey and the Department of Interior were parties to the arbitration proceeding. Of course, the union advocated Douglas’ position.
In the meantime, Douglas pursued another avenue of attack. On June 21, 2000, Douglas requested the Office of Personnel Management to determine whether his position was appropriately classified. He alleged his position was under-classified and his position should be evaluated using the GS-110 Economist standard rather than the Research Grade Evaluation Guide. On October 30, 2000, the Office of Personnel Management issued its decision, agreeing with Douglas that his position should be evaluated under the GS-110 Economist standard. Nevertheless, applying the GS-110 standard, the Office of Personnel Management decided Douglas’ position was properly classified as a GS-13.
On November 23, 2000, the arbitrator issued his decision, denying Douglas’ grievance. The arbitrator concluded:
Based on the provisions of the contract, the testimony given at the hearing, and the arguments ... of the parties, the Arbitrator has concluded that the grievance involves matters that are outside of his authority. . . . It is clear that the Arbitrator does not have authority to decide a grievance involving “the classification of any position that does not result in the reduction in pay or grade for the employee“. In this case [Douglas] seeks to have the Arbitrator reclassify him to a higher rated job and to order that the employer give him backpay to 1991. [The negotiated grievance procedure] expressly prohibits me from doing that. There is no exception for discrimination cases.... Finally the fact that [Douglas] telephoned the Arbitrator on November 17 and informed him that [the Office of Personnel Management] had denied his appeal on the classification matters is dispositive of this issue. It would be irresponsible for me to order [Douglas] to be reclassified on this record based on the dismissal of the appeal by [the Office of Personnel Management].
(Id. at 172-74.) The arbitrator‘s decision did not contain any notice of a right to appeal.
Several months later, in March or April of 2001, Douglas asked three resource economics professors to rate his position; they rated it as that of a GS-15 economist for the 1991-2002 period. Armed with this new information, in April 2001, Douglas visited Carlos Villescas, Deputy Regional Director of the Equal Employment Opportunity Commission (EEOC), to determine how to proceed. Douglas states Villescas informed him it did not matter how he proceeded and the new information could be introduced as an EEO complaint. On May 23, 2001, Douglas contacted Ida Wilson, an EEO counselor. On June 25, 2001, Douglas followed-up this contact with a formal EEO complaint. It stated his claim was ongoing, with no date of origin. He further asserted he was being treated differently than his white counterparts. In particular, he claimed that while he was at least as well-qualified as any of the eight white male economists who were classified as a GS-15. He claimed this violated his rights under Title VII and sought back pay from January 1, 1992, alleging he had been performing at a GS-15 level since that date.
II. Procedural Background
On July 18, 2002, Douglas filed a pro se Title VII complaint against Defendant Gale Norton (Norton), Secretary of the Department of the Interior, in the United States District Court for the District of Colorado. On September 6, 2002, Douglas, then represented by counsel, filed his First Amended Complaint, alleging Norton denied him a promotion to a GS-15 based on his race in violation of Title VII. On November 22, 2002, in lieu of an answer, Norton filed a Motion to Dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. Norton argued Douglas elected the negotiated grievance procedure but failed to exhaust his remedies under that procedure because he did not appeal the arbitrator‘s decision to the EEOC pursuant to
On July 11, 2003, the district court granted Norton‘s motion to dismiss and dismissed Douglas’ First Amended Complaint with prejudice.6 The district court concluded Douglas had opted to pursue his discrimination claim under the negotiated grievance procedure and this election barred him from filing an EEO complaint concerning that same discrimination. Because it was undisputed that Douglas had failed to exhaust his remedies under the negotiated grievance procedure, the court determined it lacked jurisdiction over Douglas’ Title VII complaint and dismissal was appropriate. In doing so, it declined to consider Douglas’ equitable arguments, finding waiver and estoppel were inapplicable because the exhaustion of administrative remedies requirement is jurisdictional.
6. Pursuant to
On September 12, 2003, Douglas filed a notice of appeal.7 On October 21, 2003, Douglas filed a motion for reconsideration with the district court pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure.8 In this motion, Douglas argued (1) his “election” of the grievance procedure was a nullity as his complaint was not grievable and therefore, the only inquiry is whether he exhausted his remedies under the EEO procedure; (2) he exhausted his administrative remedies under the EEO procedure and this exhaustion was timely as his complaint alleged an ongoing violation, with a new act of discrimination occurring with the receipt of every paycheck; (3) he was not required to appeal the arbitrator‘s decision because such arbitration was permissive and such an appeal would have been futile as it was clear at that time that Douglas could not proceed under the negotiated grievance procedure; (4) the doctrine of equitable tolling applied as he was hampered by Norton‘s erroneous advice; (5) his good-faith efforts to exhaust his administrative remedies were sufficient to confer jurisdiction on the court; and (6) the court‘s dismissal should be without prejudice. On December 9, 2003, the district court granted Douglas’ motion in part, agreeing with Douglas that the dismissal of the First Amended Complaint should be without prejudice; the court denied the remainder of the motion.
III. Standard of Review
The district court dismissed this action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction based on Douglas’ failure to exhaust his administrative remedies under the negotiated grievance procedure. Normally, we review de novo dismissals for lack of subject matter jurisdiction under Rule 12(b)(1). Davis ex rel. Davis v. United States, 343 F.3d 1282, 1294 (10th Cir.2003), cert. denied, 542 U.S. 937, 124 S.Ct. 2907, 159 L.Ed.2d 812 (2004). However, in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”9 Here, because Doug-
Because exhaustion of administrative remedies is not jurisdictional in this case, the district court also erred in refusing to consider Douglas’ equitable tolling arguments and in dismissing this case without prejudice. However, as we explain below, dismissal was appropriate as Douglas failed to timely exhaust his administrative remedies and his arguments in favor of tolling are unavailing.
IV. Discussion
Douglas argues the district court erred in dismissing his case for lack of subject matter jurisdiction based on his failure to exhaust administrative remedies. Before addressing this argument, we turn to Norton‘s argument, raised for the first time on appeal, that the district court lacked jurisdiction over Douglas’ complaint based on his failure to appeal the Office of Personnel Management‘s October 30, 2000 decision to the Office of Special Counsel.
A. Failure to Appeal Office of Personnel Management‘s Decision to the Office of Special Counsel
Norton argues the district court lacked jurisdiction over Douglas’ complaint based
timely filing of a charge with the EEOC, which is not jurisdictional, and the failure to file such charge at all, which is jurisdictional. Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir. 1996). However, in Jones, we recognized that even after Zipes, some of our cases failed to make this distinction and continued to refer to the requirement of an EEOC filing as a jurisdictional requirement. Id. (citing Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir. 1993); Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993); Hill v. Ibarra, 954 F.2d 1516, 1522 (10th Cir. 1992); Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir. 1984); Harbison v. Goldschmidt, 693 F.2d 115, 118 (10th Cir. 1982)). Nonetheless, a review of those cases demonstrates that none of them cited or acknowledged Zipes. Indeed, our cases citing Zipes have recognized that the failure to timely exhaust administrative remedies is not a jurisdictional deficiency but rather is similar in nature to a statute of limitations defense, which is subject to waiver and tolling. See Harms v. IRS, 321 F.3d 1001, 1009 (10th Cir. 2003); Sizova v. Nat‘l Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th Cir. 2002); Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996).
Under the Classification Act,
port of this regulation, cases from other circuits have concluded that a federal employee may seek investigatory review of an Office of Personnel Management‘s classification decision with the Office of Special Counsel and if the Office of Special Counsel decides the employee‘s complaint has merit, the Office of Special Counsel may petition the Merit Systems Protection Board for corrective action. See, e.g., Hinkel v. England, 349 F.3d 162, 164-65 (3d Cir.2003); Towers v. Horner, 791 F.2d 1244, 1247 (5th Cir.1986).
We need not resolve the tension between these cases and
B. Failure to Exhaust Administrative Remedies
Douglas argues the district court erred in dismissing his case for failure to exhaust his administrative remedies. In support of this argument, he asserts: (1) his election of the negotiated grievance procedure was a nullity and therefore it is irrelevant whether he exhausted his administrative remedies under that procedure; (2) he exhausted his administrative remedies under the EEO statutory procedure by contacting an EEO counselor in September 1999, submitting an EEO complaint on June 25, 2001, and receiving a right to sue letter on June 3, 2003; (3) equitable tolling of the time limits for filing an EEO complaint applies because he was actively misled regarding his rights; and (4) his good faith effort to exhaust his administrative remedies was sufficient to confer jurisdiction on the district court.
Norton argues Douglas elected the grievance procedure and failed to exhaust his administrative remedies under that procedure by not appealing the arbitrator‘s decision to the EEOC. She claims this election was not a nullity and Douglas cannot rely on equitable tolling because he insisted on using the grievance procedure despite being warned in March and April 2000 that his complaint was not cognizable under it.
Normally, a Title VII plaintiff satisfies the exhaustion requirement by filing a charge with the EEOC and receiving a right to sue letter. Simms v. Okla. ex rel. Dep‘t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). However, because Douglas is a member of a union covered under the Federal Labor-Management Relations Act (FLMRA),
An aggrieved employee affected by a prohibited personnel practice under [
5 U.S.C. § 2302(b)(1) —prohibited discrimination] which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both.
Section 2302(b)(1) of Title 5 prohibits discrimination based on race, color, religion, sex or national origin in certain personnel actions, including appointments, promotions, decisions concerning pay or benefits and “any other significant change[s] in duties, responsibilities, or working conditions.”
However, this election only applies if the employee‘s complaint “falls under the coverage of the negotiated grievance procedure....”
the same alleged discrimination. He subsequently filed a formal EEO complaint with the EEOC. The EEOC denied the complaint based on the employee‘s untimely contact with the counselor and his previous election to proceed via the grievance procedure. The employee sought reconsideration, which the EEOC granted. The EEOC concluded that because the subject matter of the employee‘s grievance was not grievable, he did not make a true election to proceed through the grievance process. Id. at *2. In response to the employer‘s argument that the employee should have known his complaint was nongrievable because the employer informed him so during arbitration, the EEOC stated:
If we were to deny [the employee‘s] right to proceed through the EEO process based solely on the argument that [the employee] should have known his [complaint] was ungrievable merely because the agency told him so, we would effectively be limiting [the employee‘s] right to elect between the grievance and EEO procedures based upon the agency‘s positions concerning the grievability of particular issues. Such a limitation would clearly produce untenable results and thus we decline to impose it in this case.
Id. at *3.
The EEOC further determined that the invalidity of the employee‘s election of the grievance procedure presented a sufficient basis for tolling the time period for initiating the EEO procedure from the date of the arbitrator‘s ruling. Id. Because the employee had contacted an EEO counselor within forty-five days of the arbitrator‘s ruling, the EEOC concluded he had timely initiated the EEO process. Id. See also Goddard v. Rubin, No. 01974986, 1998 WL 1846229, at *1-2 (E.E.O.C. Nov. 6, 1998).
15. We note that it was not until after Douglas had irrevocably elected the negotiated grievance procedure that the U.S. Geological Survey informed him that his grievance was not covered by the collective bargaining agreement.
The EEO procedure required Douglas to initiate contact with an EEO counselor within forty-five days of the date of the alleged discriminatory action.
Douglas attempts to avoid this result by relying on his initial contact with an EEO counselor in September 1999. He claims that because that contact occurred within forty-five days of the date of the Research Grade Evaluation Panel‘s denial of his re-classification request, this contact, combined with his June 25, 2001 complaint, satisfies the exhaustion requirement. This argument is unavailing. Although Douglas engaged in the pre-complaint EEO process in September 1999, he abandoned that process in favor of the grievance procedure. Even assuming the September 1999 contact constituted the requisite pre-complaint process for the June 25, 2001 complaint, Douglas still fails to explain why it took him seven months from the arbitrator‘s decision to file his formal complaint. See supra note 14 (setting forth time limits for filing formal complaint after initiating contact with EEO counselor).
Based on the above, we conclude dismissal of Douglas’ First Amended Complaint was proper due to his failure to timely exhaust his administrative remedies.
V. Conclusion
REMANDED for dismissal with prejudice.
Addendum A---Administrative Time Line
| June 1999 | Douglas requests re-classification of his position. |
| August 1999 | Research Grade Evaluation Panel denies Douglas’ request. |
| September 1, 1999 | Douglas contacts USGS EEO office. |
| September 9, 1999 | Douglas writes memo to USGS EEO office claiming the failure to reclassify his position was race based. |
| Sept.-Nov. 1999 | Settlement negotiations (unsuccessful). |
| November 22, 1999 | Mediation (unsuccessful). |
| November 29, 1999 | Douglas files formal complaint with USGS EEO office electing CBA grievance procedure. |
| Nov. 1999-Mar. 2000 | More settlement negotiations (unsuccessful). |
| March 3, 2000 | Douglas files 2nd grievance (stating 1st grievance was withdrawn and supplanted by 2nd grievance, which contained new information). |
| March 13, 2000 | Lamb, Douglas’ supervisor, denies grievance and advises Douglas: 1) the March 3, 2000 grievance is not new because it only alleged additional facts in support of his claim, not a different claim, and 2) his complaint was not a proper subject for a CBA grievance. |
| March 14, 2000 | Douglas files 3rd grievance with additional information. |
| April 3, 2000 | Posson, office director, treats 3rd grievance as an appeal from Lamb‘s Mar. 13, 2000 decision, affirms Lamb‘s decision and again advises Douglas the matter is not a proper subject of a CBA grievance. |
| April 4, 2000 | Douglas requests arbitration (under the CBA grievance procedure). |
| June 21, 2000 | Douglas seeks review of his classification with the OPM. |
| August 17, 2000 | Arbitration hearing. |
| October 30, 2000 | OPM decides Douglas’ position was properly classified. |
| November 23, 2000 | Arbitrator decides Douglas’ claim is not subject to arbitration. |
| May 23, 2001 | Douglas contacts EEO counselor. |
| June 25, 2001 | Douglas files formal EEO complaint. |
| November 8, 2001 | DOI EEO office denies Douglas’ formal complaint. |
| June 3, 2002 | EEOC affirms decision of DOI EEO office and issues “right to sue” letter. |