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treating failure to exhaust administrative remedies as a prerequisite to suit
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CIVIL ACTION NO. 3:01-CV-0699-G.
September 20, 2001.
MEMORANDUM ORDER
Before the court is the motion of the defendant John E. Potter, Postmaster General of the United States, to dismiss the plaintiff's claims against him pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the defendant's motion is granted.
I. BACKGROUND
The plaintiff Handy M. Teemac ("Teemac") was employed by the United States Postal Service ("USPS") as a casual employee, in its North Texas Processing and Distribution Center, on October 18, 1996. Complaint at 2-4; Defendant's Motion to Dismiss and Brief ("Motion to Dismiss") at 1. Teemac was terminated from this employment on November 27, 1996. Complaint at 3; Motion to Dismiss at 1. On March 11, 1997, Teemac filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC affirmed USPS's determination that Teemac was untimely in making his complaint to the EEOC Counselor. Complaint at 3; Motion to Dismiss at 1.
II. ANALYSIS
As a prerequisite to filing suit in district court, Teemac was required to timely exhaust his administrative remedies against the USPS. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997); National Associated of Government Employees v. City Public Service Board, 40 F.3d 698, 711 (5th Cir. 1994); Tolbert v. United States, 916 F.2d 245, 247 (5th Cir. 1990); Hampton v. Internal Revenue Service, 913 F.2d 190, 182 (5th Cir. 1990).
Federal regulations govern the procedures for the exhaustion of administrative remedies. See 29 C.F.R. § 1614.101 et seq.; Brown v. General Services Administration, 425 U.S. 820, 832 (1976); Fitzgerald, 121 F.3d at 206. Specifically, 29 C.F.R. § 1614.105(a)(1) requires that the aggrieved person must initiate contact with an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory." A plaintiff's failure to notify an EEO counselor of his complaint in a timely fashion bars the plaintiff's claims, absent a defense of waiver, estoppel, or equitable tolling. Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992); see also Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir. 1995) (citing Rennie v. Garrett, 896 F.2d 1057, 1062-63 (7th Cir. 1990)); Wilson v. West, 962 F. Supp. 939, 944 (S.D. Miss. 1997).
Teemac was discharged from his employment with the USPS on November 27, 1996, but he did not contact an EEO counselor within 45 days of that date. If fact, Teemac did not complain that this discharge was discriminatory until March 11, 1997.
Teemac presents, in his complaint, seven reasons why his delay in contacting an EEO counselor should be equitably tolled: (1) he didn't work for the agency long enough to become familiar with employment law; (2) he is a new immigrant and doesn't know the law yet; (3) the USPS made no effort to inform him of his rights as a terminated employee; (4) he received bad advice from the attorneys he consulted; (5) his manager filed an affidavit which failed to say where in the postal facility the EEOC posters were placed; (6) he was referred to as a "Casual" and did not think he had any rights; and (7) he does not speak very good English and the instructors spoke too fast during orientation. Complaint at 3-4. As the complaining party in a Title VII case, Teemac bears the burden of providing the justification for application of equitable tolling principles. Wilson v. Secretary, Department of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995). None of these reasons, however, suffices to justify equitable tolling in this case.
Our circuit has emphasized that equitable tolling applies only in "rare and exceptional circumstances." Smith v. Texaco, Inc., ___ F.3d ___, 2001 WL 958903, *14 No. 00-40337 (5th Cir. Aug. 22, 2001) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). Neither a plaintiff's unfamiliarity with the legal process nor his lack of representation during the applicable filing period merits equitable tolling. Id. (citing Barrow v. New Orleans Steamship Association, 932 F.2d 473, 478 (5th Cir. 1991)). Equitable tolling applies principally where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999)). All of the following factors have been held, singly or in combination, inadequate to justify equitable tolling — lack of an adequate prison law library through which an inmate cuold learn what filing deadline he faced, Scott v. Johnson, 227 F.3d 260, 263 n. 3 (5th Cir. 2000) (citing Felder v. Johnson, 204 F.3d 168, 171-73 (5th Cir. 2000)), cert. denied, ___ U.S. ___, 121 S.Ct. 1498 (2001); incarceration before enactment of statute imposing a new limitations period for filing prisoner petitions, Felder, 204 F.3d at 171 (citing Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)); pro se status, illiteracy, deafness, and lack of legal training, Felder, 204 F.3d at 171 (citing United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993)). Consequently, the seven reasons for Teemac's tardiness in contacting an EEO counselor, listed by him in his complaint, do not carry his burden of showing the equitable tolling should be applied to this case. Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984). In the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law. Id. (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).
Therefore, Teemac's claims arising out of the discharge from employment on November 27, 1996 are barred because of his failure to contact an EEO counselor within forty-five days of that date. See Rodgers v. Scott, 901 F. Supp. 224, 228 (N.D. Tex. 1995) (holding that plaintiff was barred from bringing claim under 42 U.S.C. § 2000e-16 because plaintiff failed to notify an EEO counselor of his complaint in a timely fashion).
III. CONCLUSION
For the reason stated above, the defendant's motion to dismiss Teemac's claims is GRANTED.