Gina M. Jenkins sued Ray Mabus, 2 Secretary of the Navy, for sexual harassment and retaliation, in addition to state-law claims. After an evidentiary hearing, the district court 3 dismissed the case because Jenkins failed to exhaust her administrative remedies. She appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
As detailed in this court’s previous opinion, the harassment before December 4, 2003, consisted of daily sexually-suggestive comments, repeated requests for sex, and a touching and fondling of Jenkins’s leg and thigh.
See Jenkins v. Winter,
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The district court found that the conduct after December 4 was not “continuing sexual harassment” sufficient to constitute a continuing violation.
Jenkins v. Winter,
No. 04-0966-CV-W-FJG,
II.
A.
This court reviews the district court’s findings of fact for clear error, and its conclusions of law de novo.
See Briley v. Carlin,
In order for a federal employee to sue for sex discrimination under Title VII, the employee must initiate contact with an EEO counselor “within 45 days of the date of the matter alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1);
see West v. Gibson,
Jenkins asserts that she contacted an EEO counselor within 45 days of the discriminatory matter because the Navy’s conduct after December 4 was “continuing sexual harassment” that created a hostile work environment. Jenkins argues she is not just re-labeling her previously dismissed retaliation claim because each of her complaints “repleads and incorporates” conduct before and after December 4 in the sexual harassment claim.
This argument is baseless. In her Formal EEO Complaint of Discrimination, responding to “Date(s) on which most recent alleged discrimination occurred,” Jenkins hand-wrote “Oct 16, 2003 thru Dec 4, 2003.” In her opposition to the Navy’s motion for summary judgment, Jenkins specifically said that the “continuing sexual harassment” began “shortly after” October 14, 2003, and lasted “almost two months,” and that “the numerous acts of harassment” were “continuous and repeated over a two-month period.”
See National Sur. Corp. v. Ranger Ins. Co.,
Contradicting her EEO complaint, pleadings, and admissions, Jenkins argues that the post-December 4 conduct was continuing sexual harassment because she is female, although the conduct was not sexual in nature, not as frequent, and
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not as severe. “A charge alleging a hostile work environment claim ... will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.”
National R.R. Passenger Corp. v. Morgan,
The district court correctly concluded that the post-December 4 conduct is not similar in nature, frequency, and severity to the pre-December 4 conduct. In
Wilkie,
this court rejected a continuing-violation theory where the original harassment was the defendant’s sexual advances, while the later conduct was markedly different, consisting of slights, insults, and affronts.
See Wilkie,
Finally, the post-December 4 conduct — which Jenkins timely contacted an EEO counselor about — does not independently constitute a hostile work environment.
See Patrick v. Henderson,
B.
Equitable estoppel applies if a defendant actively prevents a plaintiff
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from suing on time; equitable tolling applies if the plaintiff, despite due diligence, can not obtain vital information about the existence of her claim.
See Dring v. McDonnell Douglas Corp.,
According to Jenkins, the Navy prevented her from timely contacting an EEO counselor because the Navy emphasized to her its policy of handling such matters within the command and because there was “some confusion” about how a civilian-contract-employee’s complaint should be handled. To show equitable estoppel, a plaintiff must be aware of her claim, but fail to file timely due either to the employer’s “deliberate design,” or to employer acts that it “should unmistakably have understood would cause the employee to delay” contacting an EEO counselor.
See Hamilton v. West,
On November 17, 2003, the Command EEO officer told Jenkins she could file a formal complaint and asked if she wanted to. She said she did not, did not give names or details, preferred to handle it herself informally, and asked the Command EEO officer not to disclose anything. Jenkins emphasizes that at the December 4 meeting, “[the Command EEO officer] asked multiple times is this okay” if the Navy handled her concerns with the harasser, and that she agreed to handling complaint within the command. Putting this in perspective, the district court found that Jenkins was reluctant to participate in the internal investigation, and that neither the Commanding officer nor anyone else told her that she had to keep her complaint “in-house.” Jenkins does not argue that these fact-findings are clearly erroneous. These facts do not indicate that the Navy deliberately “lulled or tricked [Jenkins] into letting the EEOC filing deadline pass,” or understood its handling would cause Jenkins to delay contacting a counselor.
See Dorsey v. Pinnacle Automation Co.,
Jenkins also asserts that the Navy gave her incorrect information on how to proceed with her claim, and did not refer her to the Navy’s EEO counselor as a contact for resolving the problem. “Equitable tolling will extend a deadline missed due to an employee’s excusable ignorance, but the doctrine is precluded once it is shown that the employee was generally aware of her rights,” which means “general knowledge” of the right not to be discriminated against or the means of obtaining such knowledge.
Briley,
The district court found:
The credible evidence showed that EEO resources in the form of written policies, EEO training, EEO reminders and EEO postings were widely available at the Navy office.
[The Command EEO officer] provided training on the “red light-yellow light-green light” resolution procedures pamphlet that included a simple explanation of the 45-day counselor contact requirement.
The Plaintiff [Jenkins] admitted she saw “red, white and blue” posters with the Navy personnel website listed, as well as an email address and advice line. One poster had a simple flow chart beginning with the step, “45 days to contact counselor.” ... The Plaintiffs co-worker, Stephanie Kretzer, repeatedly encouraged the Plaintiff to take advantage of the posted EEO contact information, both before and after December 4, 2003.
These findings, which Jenkins does not attack, indicate she was “generally aware of her rights.” Equitable tolling does not apply here.
Accord Bailey v. U.S. Postal Serv.,
Neither equitable estoppel nor equitable tolling saves Jenkins from her failure to timely contact an EEO counselor. The district court properly dismissed her case.
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The judgment of the district court is affirmed.