     Case: 12-20817      Document: 00512474582         Page: 1    Date Filed: 12/17/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                      No. 12-20817                             FILED
                                                                       December 17, 2013
                                                                          Lyle W. Cayce
THEODOESHA RIVERS,                                                             Clerk

                                                 Plaintiff - Appellant
v.

TIMOTHY F. GEITHNER, Secretary, United States Department of the
Treasury; INTERNAL REVENUE SERVICE,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-1396


Before OWEN, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
       Theodoesha Rivers was an employee at the Department of Treasury,
Internal Revenue Service (IRS) until her resignation in lieu of termination on
August 12, 2011. As a federal employee, Rivers was informed that if she
suspected that her employer had taken any adverse employment action against
her that was based in whole or in part on discrimination due to race, she must
bring her complaint to the attention of an Equal Employment Opportunity


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 12-20817
(EEO) counselor within forty-five (45) calendar days of the effective date of the
adverse employment action. Rivers failed to contact an EEO Counselor within
the prescribed time period. Nonetheless, Rivers filed suit against the IRS
alleging that the IRS had unlawfully discriminated against her on the basis of
her race. The district court dismissed Rivers’ suit for her failure to exhaust
her administrative remedies. Because we find that Rivers has not shown that
she is entitled to equitable tolling or estoppel of the limitations period for
contacting an EEO Counselor, we AFFIRM the district court’s ruling.
                  FACTS AND PROCEDURAL HISTORY
       Theodoesha Rivers was employed by the IRS from September 15, 2008
to August 12, 2011.     Rivers alleges that in November 2009, one of her
supervisors made racially discriminatory comments towards her.            Rivers
reported her supervisor’s conduct to her Union Office, and after Rivers filed
her complaint, she alleges that her supervisors retaliated against her by
creating a hostile work environment. Sometime later, in the spring of 2010,
the IRS began an investigation into Rivers’ use of the government credit card
and her time reporting. Pursuant to the IRS’s investigation, Rivers received
written notice from the IRS explaining that it was investigating her based on
her misuse of the government credit card.          Rivers was also given an
opportunity to respond to the investigation both orally and in writing, and
Rivers chose to only give an oral reply. Rivers was also informed in writing
that she had administrative remedies available to her, including filing a
complaint with the Equal Employment Opportunity Commission (EEOC) if she
felt that the employment actions taken against her were discriminatory in any
way.   Rivers ultimately decided to resign in lieu of termination, and she
submitted her resignation effective August 12, 2011.
       On October 13, 2011, Rivers obtained a copy of her investigative file
pertaining to the credit card infractions. Upon reading the file, Rivers alleges
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                                  No. 12-20817
that she realized for the first time that her supervisors, whom she had
previously reported for discriminatory conduct, had been involved in the
investigation. It was only upon reading the investigative file, Rivers asserts,
that she had a reasonable suspicion that her termination was based on
discrimination and retaliation for her complaints.
      Rivers then contacted an EEO counselor with her complaint of racial
discrimination on October 17, 2011, four days after she had received her
investigative file but a total of sixty-six days after the date of her resignation
in lieu of termination. On December 19, 2011, Rivers filed an administrative
complaint alleging discrimination based on race, color, and retaliation for prior
EEO activity. The Department of the Treasury investigated Rivers’ complaint
and dismissed her complaint pursuant to 29 C.F.R. § 1614.107(a)(2) because
she had failed to exhaust her administrative remedies by failing to contact an
EEO Counselor within the 45 day time period required by the regulation.
      Rivers then filed suit against the IRS in the District Court for the
Southern District of Texas, Houston Division, again alleging she was subject
to discrimination on the basis of her race. The Government filed a motion to
dismiss the case, claiming that Rivers’ failure to exhaust her administrative
remedies prior to suit rendered the district court without subject matter
jurisdiction.   In response, Rivers argued that the Government should be
equitably estopped from asserting the limitations period as a defense to her
claim because the IRS misled her about the reasons for her termination,
causing her to forebear from contacting an EEO counselor in a timely fashion.
In the alternative, Rivers argued that the 45 day time limit for contacting an
EEO counselor began to run on the day she discovered that discriminatory
intent motivated the adverse employment action against her, not the date that
her termination actually occurred. The district court determined that Rivers
had reason to know of any suspected discriminatory motive at the time of her
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                                   No. 12-20817
resignation and that Rivers had not exhausted her administrative remedies
because she failed to contact an EEO counselor within the 45 day deadline.
The district court declined to grant her any equitable remedies and dismissed
Rivers’ suit.
                           STANDARD OF REVIEW
      In Title VII cases “[w]e review de novo a district court’s determination of
whether the exhaustion requirement is satisfied.” Pacheco v. Mineta, 448 F.3d
783, 788 (5th Cir. 2006). “Where further litigation of [a] claim will be time-
barred,” however, this Court reviews a dismissal for abuse of discretion. Berry
v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992) (internal citations
omitted) (alteration in original). In reviewing a decision where “the district
court declines to exercise its equitable powers, we review decisions on the
pleadings only for abuse of discretion.” Teemac v. Henderson, 298 F.3d 452, 456
(5th Cir. 2002). “As when deciding any other motion on the pleadings, we
assume the pleaded facts as true, and we will remand if the plaintiff has
pleaded facts that justify equitable tolling.” Id.; Phillips v. Leggett & Platt, Inc.,
658 F.3d 452, 457 (5th Cir. 2011) (“Our review of a district court’s application
of equitable tolling is for abuse of discretion.”). “A district court abuses its
discretion when it bases its decision on an erroneous legal conclusion or on a
clearly erroneous finding of fact.” James v. Cain, 56 F.3d 662, 665 (5th Cir.
1995).
                                  DISCUSSION
      Title VII prohibits an employer from making an adverse employment
decision that is motivated in part by discrimination on the basis of sex, race,
color, religion, or national origin. 42 U.S.C. § 2000e-2(a)(1); Richardson v.
Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005). The exclusive remedy
for claims of employment discrimination by federal employees under Title VII
is provided in 42 U.S.C. § 2000e-16(a)-(e). Pacheco v. Rice, 966 F.2d 904, 905
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                                           No. 12-20817
(5th Cir. 1992) (citing Henderson v. United States Veterans Admin., 790 F.2d
436, 439 (5th Cir. 1986)). Federal employees must seek informal counseling
with an EEO counselor before filing a complaint of discrimination with the
EEOC. 29 C.F.R. § 1614.105(a). An aggrieved employee “must initiate contact
with a Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the
effective date of the action.” Id. § (a)(1).
       If an aggrieved employee fails to seek informal counseling within the 45
day time limit, her claim is time barred. Pacheco, 448 F.3d at 791 n.11
(“Generally, discrimination claims alleging conduct that occurred more than
45 days before the initiation of administrative action (contacting an EEO
counselor) are time barred in a subsequent action in federal court.” (citing 42
U.S.C. § 2000e-16; 29 C.F.R. § 1614.105)); Teemac, 298 F.3d at 454 (“Federal
employees must seek informal counseling before they file an EEOC complaint
. . . [i]f the employee fails to do so, his claim is barred.”); Rice, 966 F.2d at 905
(“Failure to notify the EEO counselor in timely fashion may bar a claim, absent
a defense of waiver, estoppel, or equitable tolling.” (citation omitted)).
       The district court granted the Government’s motion to dismiss Rivers’
claim for lack of jurisdiction based on the fact that Rivers had failed to exhaust
her administrative remedies since she had not contacted an EEO counselor
within the 45 day time limit. 1 The parties dispute, however, when the 45 day
period began to run. Rivers asserts that the limitations period should not have


       1  There is a dispute within this Circuit regarding whether exhaustion implicates this
Court’s subject matter jurisdiction, or whether exhaustion is merely a statutory prerequisite to
suit that is subject to equitable remedies such as tolling. See, e.g., Filer v. Donley, 690 F.3d 643,
647 (5th Cir. 2012) (stating that “in this court, there are two jurisdictional issues in this case . . .
[t]he first is whether [employee] exhausted his administrative remedies under Title VII”). But
see Phillips, 658 F.3d at 457 (“The limitations period for filing a discrimination charge with the
EEOC is not a jurisdictional prerequisite, and it may be tolled by equitable modification.”
(citations omitted)). Since Rivers has not shown that she is entitled to equitable tolling or
estoppel, we need not reach this jurisdictional dispute in this case.
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                                  No. 12-20817
begun the day of her resignation, but rather when she had a reasonable
suspicion that her termination was based on discrimination. This Circuit’s
precedent clearly establishes, however, that “in Title VII cases [] the
limitations period starts running when the plaintiff knows of the
discriminatory act, not when the plaintiff perceives a discriminatory motive
behind the act.” Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1217 n.2 (5th
Cir. 1992) (citing Merrill v. Southern Methodist University, 806 F.2d 600, 605
(5th Cir.1986) (emphasis original)); Chapman v. Homco, Inc., 886 F.2d 756, 758
(5th Cir. 1989) (“[T]his Court [has] rejected the [] argument that the statute of
limitation in a Title VII case should not begin to run until the date of discovery
of the alleged discriminatory practices.”); see also Phillips, 658 F.3d at 455
(“Generally, the limitations period begins on the date of the alleged unlawful
employment action.”).
      In the instant case the 45 day time limit for contacting an EEO counselor
began to run on August 12, 2011, the day that the IRS took adverse
employment action against Rivers by informing her that she would be
terminated, resulting in Rivers submitting her resignation.          Rivers first
contacted an EEO counselor on October 17, 2011, a total of sixty-six days after
the date of her resignation in lieu of termination. Therefore, Rivers did not
contact an EEO counselor within the 45 day period provided in 29 C.F.R. §
1614.105(a)(1) and the district court properly found that Rivers’ complaint was
time barred.
      In the alternative, Rivers asserts that she is entitled to equitable
remedies that would allow her complaint to the EEO counselor to be considered
timely.   Rivers argues that the IRS concealed relevant facts during its
investigation and misled Rivers about the reasons for her termination,
therefore, she contends that the IRS should be estopped from asserting the 45
day limitations period as a defense to her claim.
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                                 No. 12-20817
      An employer may be equitably estopped from asserting the limitations
period as a defense when the employee’s failure to comply with an EEOC
deadline was a result of the employer’s misconduct. Christopher, 950 F.2d at
1215 (noting that estoppel is warranted when a “plaintiff’s unawareness of his
ability to bring a claim -- either unawareness of the facts necessary to support
a discrimination charge or unawareness of his legal rights -- is due to
defendant’s misconduct”); Rhodes v. Guiberson Oil Tools, 927 F.2d 876, 879
(5th Cir. 1991) (“If the defendant did conceal facts or misled the plaintiff and
thereby caused the plaintiff not to assert his rights within the limitations
period, the defendant is estopped from asserting the EEOC filing time as a
defense.”). The employee “bears the burden of presenting facts which, if true,
would require a court as a matter of law to estop the defendant from asserting
the statute of limitations.” McGregor v. Louisiana State Univ. Bd. of
Supervisors, 3 F.3d 850, 865 (5th Cir. 1993) (internal quotations and citations
omitted). An employee may be entitled to equitable tolling of a filing deadline
if “the [employee’s] lack of awareness of the facts supporting his claims [is]
because of the defendant’s intentional concealment of them.” Manning v.
Chevron Chem. Co., LLC, 332 F.3d 874, 880 (5th Cir. 2003).
      Rivers is not entitled to equitable tolling or estoppel because she has not
shown that the IRS concealed facts from her or affirmatively misled her about
the reasons underlying her termination. See id. (holding that “[w]e equitably
toll a limitations period only when the employer’s affirmative acts mislead the
employee and induce him not to act within the limitations period” (citation
omitted) (emphasis original)); Ramirez v. City of San Antonio, 312 F.3d 178,
184 (5th Cir. 2002) (“A court will equitably toll a limitations period only when
the employer’s affirmative acts mislead the employee.”).
      Rivers alleges that she did not know that her supervisors, whom she had
previously reported for discrimination, had been involved in the investigation
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                                 No. 12-20817
of her credit card use until she read her investigative file, which to River’s
surprise included portions of private conversations between Rivers and her
supervisors. Rivers contends that because the IRS concealed the fact that her
supervisors were heavily involved in the investigation she had no way of
knowing that her termination for her credit card misuse had a discriminatory
motive. As the district court found, Rivers had admittedly been a part of the
conversations with her supervisors, therefore, she cannot now claim that she
was wholly unaware of the existence of these conversations. Her allegation
that she was surprised to see that the conversations had been made part of her
investigative file is not enough to warrant estoppel. This Court has found that
an aggrieved employee is not entitled to equitable estoppel when she is aware
of the facts surrounding any discriminatory treatment, but claims
unawareness of the employer’s discriminatory purpose. See Christopher, 950
F.2d at 1216 (“[E]quitable estoppel is not warranted where an employee is
aware of all of the facts constituting discriminatory treatment but lacks direct
knowledge of the employer’s subjective discriminatory purpose.”).
      Rivers also avers that the IRS concealed facts and misled her because it
did not allow her a chance to defend herself against the charges in its
investigation, and that had she been provided with all of the information
regarding the investigation, she “would have been able to correct any perceived
deficiencies and maintain her employment.”           However, Rivers herself
submitted a letter she received from the IRS to the district court as an exhibit
attached to her motion opposing the dismissal of her case. (R. 69). This letter
explained that Rivers was given written notice of the charges against her on
January 26, 2011, that she gave an oral reply to the charges on March 23, 2011,
and that she declined to submit a written reply. Accordingly, Rivers was given
notice and an opportunity to respond, therefore, her argument that the IRS


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                                  No. 12-20817
deliberately concealed the nature and facts of its investigation from her is
without merit.
      As such, Rivers has not shown that the IRS affirmatively or actively
sought to mislead her, which is a requirement for the application of equitable
estoppel or tolling. See e.g., Tucker v. United Parcel Service, 657 F.2d 724, 725–
26 (5th Cir. Unit B Sept. 1981) (applying equitable tolling when the employer
informed seasonal employees they would not be recalled to work after the
holidays, and then recalled almost exclusively white and not black seasonal
workers after the EEOC filing deadline had passed); Coke v. General
Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. Mar. 1981) (reversing
summary judgment for the employer and finding a genuine issue of material
fact existed in regards to equitable tolling when an employee who was demoted
and replaced by a younger man reasonably relied on the employer’s
misrepresentations that he would be reinstated when forbearing to file his age
discrimination claim); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d
924, 930 (5th Cir. 1975) (holding that equitable modification of the limitations
period was warranted when the defendant actively sought to mislead the
employee by informing her that her position was being terminated due to a
lack of funding, then hiring a less qualified male employee to replace her).
      The IRS did not actively mislead Rivers to prevent her from filing a
discrimination claim by proffering misleading reasons for her termination.
Rather, the IRS conducted a year-long investigation into her credit card use in
which it gave her written notice of the charges against her and an opportunity
to respond. Furthermore, Rivers has not once asserted during the pendency of
this litigation that the allegations of her credit card misuse were untruthful in
any way.    Accordingly, Rivers has not shown that she is entitled to the
equitable remedies of tolling or estoppel.


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                                   No. 12-20817
                                 CONCLUSION
      Rivers failed to exhaust her administrative remedies when she did not
contact an EEO counselor within 45 days of her resignation in lieu of
termination. Rivers also has not shown that she is entitled to equitable tolling
or estoppel of the limitations period. For these reasons, we AFFIRM the
district court’s dismissal of Rivers’ suit.




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