On Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: SLOVITER, Chief Judge, McKEE and ROSENN, Circuit Judges
Submitted Pursuant to Third Circuit LAR 34.1(a)
(Opinion Filed February 28, 1997)
Plaintiff, who filed a Title VII action alleging that he was fired from the Navy in retaliation for his previous charges of racial discrimination, appeals from the district court's dismissal for lack of subject matter jurisdiction. On appeal, we must examine both the procedure for the district courts to use in deciding whether a plaintiff failed to exhaust administrative remedies and the type of agency action that warrants application of equitable tolling. We also consider when a previously filed administrative complaint encompasses a charge based on a subsequent discharge.
I. Facts and Procedural History
During 1989, Dennis Robinson, an employee at the Philadelphia Naval Shipyard, filed three separate complaints with the Navy's Equal Employment Opportunity ("EEO") Office alleging racial discrimination and retaliation. From the information available to us it appears that at different times during the year (March 14, March 29, and June 26), Robinson filed complaints alleging that the Navy 1) denied his sick leave from August 27 - October 26, 1988 and promoted a white employee to permanent general foreman; 2) placed him on an unauthorized leave status on January 25, 27, 30 and, as well as February 1 and 3, 1989; and 3) issued him an indebtedness letter of $9,800 for disapproved sick leave and cited him for creating an asbestos hazard. These complaints were consolidated and, following administrative proceedings and investigation, resulted in a finding by the EEOC of no discrimination by the Department of the Navy. Robinson's request for reconsideration was denied and the EEO issued a letter on May 4, 1995 informing him that he had no further rights of administrative appeal but could file a civil action in federal district court within 90 days.
In addition to the absences referred to in his EEO complaints, Robinson was absent from his job without authorization for a long period beginning on November 27, 1989. He was instructed on January 5, 1990 to contact his employee relation specialist to explain the reasons for his prolonged absence and was told that his failure to do so by January 12, 1990 would result in his absence being unauthorized and that the Navy would take action to terminate his employment at the shipyard. Robinson failed to comply with the Navy's directions.On January 26, 1990 the Navy wrote to Robinson that it proposed to remove him from his employment due to excessive unauthorized absences and creating an asbestos hazard. Robinson responded with a letter from his doctor but the Navy determined that this letter did not adequately justify Robinson's absence and it requested additional information. Robinson never provided any further information. The Navy then terminated his employment on April 5, 1990.
Robinson brought this suit in district court claiming that he was fired in retaliation for the previous charges of racial discrimination. He invoked jurisdiction based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq. *fn1
Although Robinson's complaint alleges that he had filed a complaint with the Navy's EEO counselor and exhausted all of his administrative prerequisites, App. at 15, the Navy moved to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim or Rule 56 for summary judgment, asserting that Robinson had failed to exhaust his administrative remedies. The district court converted the motion into a Rule 12(b)(1) motion and then conducted a three-day evidentiary hearing to determine whether it had jurisdiction over the claim.
Among the evidence relevant to the district court's ultimate ruling was Robinson's testimony that he talked to an EEO counselor over the telephone, who he thought was Shirley Brown, who told him that he did not have to file a complaint, App. at 89, and his affidavit stating that the counselor told him that since he had other claims of retaliation pending, he did not have to file another separate complaint, App. at 50. In response, the Navy provided a computer printout from the Navy EEO office which showed that Robinson had first contacted an EEO officer on October 3, 1990, six months after he was terminated. Karl Pusch, an EEO counselor, testified that he remembered completing an EEO intake form on that day. A mail record shows that the EEO office sent Robinson a Notice of Final Interview on October 15, 1990. Furthermore, Brown and Pusch both testified that they would never have advised a complainant not to file a complaint.
The district court dismissed Robinson's complaint stating that we need not decide whether Robinson was not telling the truth in his affidavit or whether he simply misrecollects the events of 1990, since it is sufficient merely to conclude that he has not met his burden of showing either that he timely contacted an EEO counselor within thirty days of his termination or that an EEO counselor misled him into failing to follow the proper procedures. App. at 27. Robinson filed a timely appeal.