                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2002

Donovan v. Postmaster General
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2094




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Recommended Citation
"Donovan v. Postmaster General" (2002). 2002 Decisions. Paper 357.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/357


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                           No. 01-2094
                            __________

                         JOAN R. DONOVAN
                                              Appellant

                                   v.

                     WILLIAM J. HENDERSON,
             POSTMASTER GENERAL; ELVOID CHRISTMAS;
                         ANDRE ADDISON
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                   D.C. Civil No. 99-cv-05341
       District Judge: The Honorable Nicholas H. Politan
                           __________

                     Argued: June 4, 2002
                           __________

        Before: SCIRICA, BARRY, and WEIS, Circuit Judges

                 (Opinion Filed: June 13, 2002)
                          ____________


John A. Craner, Esquire (Argued)
Craner, Satkin & Scheer
320 Park Avenue
P.O. Box 367
Scotch Plains, NJ 07076

Attorney for Appellant
James B. Clark, III, Esquire (Argued)
Assistant U.S. Attorney
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

Attorney for Appellees


                           ____________

                      OPINION OF THE COURT
                          ____________


BARRY, Circuit Judge
     The outcome of this appeal hinges on the equitable tolling doctrine. More
specifically, the issue presented is whether it is fair to excuse appellant Joan Donovan’s
undisputed failure to comply with the 15-day period for filing her formal complaint
against the Postal Service. See 29 C.F.R. 1614.105(d) & 1614.106(b). On April 4,
2001, the District Court declined to equitably toll the 15-day period and granted
summary judgment against Donovan for her failure to exhaust administrative remedies.
We have jurisdiction pursuant to 28 U.S.C. 1291 and will affirm.
     The parties are familiar with the facts of this case and we will, accordingly,
discuss them only as necessary to resolve the issue presented.
     On February 3, 1999, Donovan, then acting pro se, filed an Equal Employment
Opportunity ("EEO") complaint alleging discrimination based on her disability (multiple
sclerosis), race (white), and sexual harassment by a co-worker, Emil Anthony. In
response to her complaint, the Postal Service conducted an investigation and issued a
report on February 23, 1999 which disclosed that Anthony admitted to kissing
Donovan’s hand and hugging her on several occasions.
     On June 11, 1999, Donovan retained the attorney who now represents her on
appeal. Seventeen days later, on June 28, 1999, counsel received a letter from the Postal
Service dated June 23, which stated that the EEO inquiry into Donovan’s February 3 and
March 2 complaints had been "completed." The letter also enclosed a Notice of Rights
to File Individual Complaint, and warned that "[f]ailure to file within fifteen days upon
receipt of this letter may result in your Case being dismissed."
     Because Donovan’s attorney received the Postal Service’s letter and notice on
June 28, it is undisputed that a formal complaint should have been filed no later than July
13, 1999. This Donovan did not do. Instead, she waited until July 30, 1999 to file a
formal complaint, i.e., seventeen days past the July 13 deadline or thirty-two days (more
than double the allotted time) from receipt of the notice. Counsel made no effort to
obtain an extension of the 15-day filing period, and on September 21, 1999, the Postal
Service dismissed Donovan’s formal complaint for failure to timely meet that deadline.
Donovan initiated this action on November 16, 1999 pursuant to Title VII and the
Rehabilitation Act. We review the District Court’s grant of summary judgment de novo.
     Under Title VII and the Rehabilitation Act, a claimant must first exhaust her
administrative remedies before filing suit in federal court, and a failure to exhaust is akin
to a failure to comply with a statute of limitations. Robinson v. Dalton, 107 F.3d 1018,
1021 (3d Cir. 1997); Spence v. Straw, 54 F.3d 196, 200 (3d Cir. 1995). Administrative
remedies are designed to ensure that an agency gets the first opportunity to resolve a
discrimination charge, while leaving the claimant with a federal court remedy if the
agency sits on the claim or ultimately denies relief.
     As noted above, the administrative procedure at issue here is the 15-day window
for filing a formal complaint after notice of a right to file a formal charge is received. A
failure to comply with this 15-day period is grounds for dismissal of a tardy complaint,
and constitutes a failure to exhaust. Donovan concededly did not file within fifteen days,
and argues that the doctrine of equitable tolling should be applied to preserve her
discrimination claim.
     We have noted three principal, although not exclusive, reasons to permit equitable
tolling: (1) where the defendant has actively misled plaintiff; (2) where the plaintiff, in
some extraordinary way, has been prevented from asserting her rights; or (3) where the
plaintiff has timely asserted her rights, but in the wrong forum. Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).
     Donovan recognizes that none of these principal reasons for granting equitable
tolling is present in this case. Instead, she asserts two other reasons for granting
equitable relief. First, she contends that there is no prejudice to the Postal Service from
the late filing. Second, she claims that, even if she had filed on time, she could have
initiated a federal lawsuit on August 2, 1999 pursuant to the 180-day rule in 42 U.S.C.
2000e-16(c), and that the Postal Service would not have resolved her complaint by that
date. By way of explaining the delay for her filing, Donovan’s attorney contends that
more than fifteen days was necessary because he needed to get up to speed on the case.
     Donovan’s claim of no prejudice which the Postal Service does not contest is,
standing alone, insufficient to warrant equitable tolling. Baldwin County Welcome Cntr.
v. Brown, 466 U.S. 147, 152 (1984) ("Although absence of prejudice is a factor to be
considered in determining whether the doctrine of equitable tolling should apply once a
factor that might justify such tolling is identified, it is not an independent basis for
invoking the doctrine and sanctioning deviations from established procedures."). Here,
Donovan received fair warning of the risk for failing to comply yet let the deadline run.
"One who fails to act diligently cannot invoke equitable principles to excuse that lack of
diligence." Id. at 151.
     Donovan’s reliance on the 180-day rule is no more availing. She contends that,
given its various delays, including the month and a half it took the Postal Service to
dismiss her formal complaint on procedural grounds, it is highly unlikely that the Postal
Service would have resolved her claim on the merits between July 13 and August 2.
Donovan claims that "[u]nder these circumstances, further exhaustion of the internal
Postal Service remedy would have been futile, and therefore, this case should be allowed
to go forward."
     The difficulty for Donovan is that she had a good faith obligation to file her
formal complaint by July 13 so that the Postal Service would be given a fair opportunity
to review her claim within the 180-day window. Donovan not only failed to do this but
did not seek an extension of time or attempt to justify her tardiness. The fact that she
could have filed a federal action on August 2 a right that she did not assert does not
excuse her own failures. Accord Johnson v. Bergland, 614 F.2d 415, 418 (5th Cir. 1980)
("[I]f the agency does not reach the merits of the complaint because the complainant fails
to comply with the administrative procedures the Court should not reach the merits
either. Otherwise, the complainant might be dilatory at the administrative level, knowing
that he can get into federal court anyway.").
     In any event, Donovan’s description of further agency action as being rendered
"futile" by the 180-day rule is incorrect. The 180-day rule creates an option for Title VII
plaintiffs to pursue relief in federal court, but it does not preclude or render useless
further agency procedures. Donovan’s recourse was to follow the rules, file a timely
complaint, and then go to federal court in August if no final decision had been rendered.
Instead, Donovan waited until the end of July before filing her claim knowing that
dismissal for such tardiness was at least possible if not probable or certain. In such
circumstances, we conclude that equitable relief is unwarranted. School Dist. of
Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981) ("The tolling exception is not an
open-ended invitation to the courts to disregard limitations periods simply because they
bar what may be an otherwise meritorious cause.").
       For the foregoing reasons, we will affirm the April 4, 2001 order of the District
Court.

TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion.

                              /s/ Maryanne T. Barry
                              Circuit Judge
