201 F.3d 990 (7th Cir. 2000)
Michael Gibson,    Plaintiff-Appellant,v.Togo D. West, Jr., Secretary,  Department of Veterans Affairs,    Defendant-Appellee.
No. 96-3776
In the  United States Court of Appeals  For the Seventh Circuit
Submitted July 19, 1999Decided January 24, 2000

Appeal from the United States District Court   for the Northern District of Illinois, Eastern Division.  No. 96 C 223--Ruben Castillo, Judge.
Before Ripple, Manion, and Kanne, Circuit Judges.
On Remand From the Supreme Court of the United States
Manion, Circuit Judge.


1
This case is before us on  remand from the Supreme Court. See Gibson v.  Brown, 137 F.3d 992 (7th Cir. 1998), vacated sub  nom. West v. Gibson, 119 S. Ct. 1906 (1999). In  Gibson, we held that plaintiff Michael Gibson did  not seek compensatory damages before the Equal  Employment Opportunity Commission (EEOC) as part  of his Title VII discrimination claim against his  employer, the Veterans Administration (VA). Id.  at 994. We concluded, however, that the  requirement that Gibson exhaust his  administrative remedies did not apply to his  request for such relief because the EEOC did not  possess the statutory authority to award  compensatory damages. As a result, we held that  Gibson could seek such relief in the district  court, and that it had erred in dismissing his  claims for a failure to exhaust. See id. at 994-  998.


2
The Supreme Court vacated our decision in this  matter, holding that the EEOC possesses the  authority under 42 U.S.C. sec. 2000e-16(b) to  order federal agencies to pay compensatory  damages when they discriminate in employment. See  West, 119 S. Ct. at 1912-13. Before the Supreme  Court, Gibson argued that if the Court vacated  our decision, it should still allow him to  proceed in the district court on an alternative  ground. See id. at 1912. More specifically, he  argued in the Supreme Court that he satisfied the  exhaustion requirement, "even if he did not give  notice to the EEOC that he sought compensatory  damages", because "(1) the requirement of notice  for exhaustion purposes is unusually weak in  respect to compensatory damages, (2) he did  request a 'monetary cash award,' and (3) special  circumstances estop the Government from asserting  a 'no exhaustion' claim in this case." Id. The  Supreme Court directed us to "determine whether  these questions have been properly raised and, if  so, decide them." Id.


3
The parties have filed their Statements pursuant  to Circuit Rule 54 as to how this court should  proceed. The VA argues that Gibson did not raise  before us his first ground (the notice  requirement is "weak" for compensatory damages),  that this court has already ruled against Gibson  with respect to his second ground (he requested a  "monetary cash award"), and that his third ground  is legally ill-founded (estoppel is inapplicable,  the VA argues, to the requirement of exhaustion).  Gibson contends, without showing where, that he  has raised all three alternate grounds, and he  requests leave to file supplemental briefs on  these issues.


4
Upon reviewing Gibson's briefs pursuant to the  Supreme Court's directive, we find that Gibson  has not preserved his first and second alternate  grounds. As a general matter, Gibson did not  alternatively argue in this court that he had  exhausted his administrative remedies with  respect to compensatory damages, let alone make  either of these two more specific alternative  arguments. Rather, before us Gibson argued that  the district court erred in construing his  request for compensatory damages as a new claim  rather than a new request for relief, and that he  had exhausted his administrative remedies because  the exhaustion requirement does not apply to  forms of relief (according to him, it only  applies to claims).1 Initial Brief at 20-26.  Thus, far from arguing that he had satisfied the  requirement of exhaustion with respect to  compensatory damages, Gibson argued that he did  not have to do so. See, e.g., id. at 21 ("Federal  case law on exhaustion and federal regulations on  discrimination refer to the claim as the  discriminatory conduct, not the request for  relief."); id. at 25 ("The district court's  ruling on exhaustion treated a category of  damages as if it was [sic] a separate claim, but  neither the case law nor the administrative  regulations support this approach. To the  contrary, the case law and the regulations treat  parties as having exhausted their administrative  remedies when they set out the basic facts  indicating discriminatory conduct."). He  persisted with this premise in his reply brief.  See Reply Brief at 10 ("The law holds to the  contrary, that the claim which must be exhausted  consists of the facts indicating discrimination,  and that the claimant's request for relief is  entirely hortative."). This is much different  from arguing, for example, as he now does, that  the doctrine does in fact apply to remedies,  albeit (according to Gibson) in a "weaker" form.  So not only did Gibson fail to make either of his  first two, alternate arguments, he actually  argued an opposite premise in terms of the basic  need to exhaust administrative remedies.2  Accordingly, we find that Gibson has waived his  first two alternative arguments by not previously  raising them before this court. See Russo v.  Health Welfare & Pension Fund, 984 F.2d 762, 769  (7th Cir. 1993) (arguments made for the first  time on appeal are waived).


5
The VA concedes that Gibson has preserved his  third alternative argument, estoppel, and when  this case was previously before us, both parties  briefed this issue. Thus, we may decide the  estoppel question without the additional briefing  Gibson requests. See West, 119 S. Ct. at 1912.


6
As a threshold matter, each side disagreed as to  whether a failure to exhaust administrative  remedies was a jurisdictional flaw or simply a  condition precedent to bringing an action in  federal court. The VA noted that in Pack v.  Marsh, 986 F.2d 1155, 1157 (7th Cir. 1993), we  held it was jurisdictional, while Gibson pointed  to our decision in Charlie F. v. Board of  Education of Skokie School District 68, 98 F.3d  989, 991 (7th Cir. 1996), where we stated it was  merely a precondition to filing. The answer to  this question dictates whether Gibson may, as a  matter of law, avail himself of the estoppel  defense. If a failure to exhaust is a  jurisdictional requirement, then Gibson cannot  cite estoppel to excuse his failure to exhaust  administrative remedies and our inquiry is at an  end. See generally Zipes v. Trans World Airlines,  Inc., 455 U.S. 385, 392 (1982) ("The single  question . . . is whether the timely filing of an  EEOC charge is a jurisdictional prerequisite to  bringing a Title VII suit in federal court or  whether the requirement is subject to waiver and  estoppel."). Some district courts, including the  district court in this case, cite Pack; others  have implicitly concluded that in light of other  decisions of this court, Pack is erroneous.  Compare Allen v. Runyon, No. 97-C-8701, 1999 WL  350851, at *2 (N.D. Ill. May 26, 1999) (citing  Pack) ("If Allen has not exhausted his  administrative remedies, this court lacks subject  matter jurisdiction to decide his claims."), and  Hill v. Runyon, 959 F. Supp. 488, 493, 496 (N.D.  Ill. 1997) (citing Pack, then holding that court  lacked "subject matter jurisdiction over the  Title VII claims . . . because [plaintiff] failed  to exhaust administrative remedies."), with  Salerno v. Runyon, No. 92-C-3679, 1993 WL 311923,  at *1 n.1 (N.D. Ill. Aug. 11, 1993) (declining to  follow Pack) ("Exhaustion of administrative  remedies is not a jurisdictional prerequisite to  plaintiff's discrimination claims."), and Cullom  v. Brown, No. 96-C-1925, 1998 WL 142429, at *2  n.3 (N.D. Ill. March 24, 1998) (same). After  reviewing the law in this area, we conclude that  Charlie F. is the correct and current law; a  failure to exhaust administrative remedies is not  a jurisdictional flaw.


7
In Zipes, the Supreme Court held that with  respect to a suit against a private employer, the  timely filing of an EEOC charge--the initial step  on a path to exhausting administrative remedies--  is not a jurisdictional requirement to bringing a  Title VII claim in federal court; rather, it is  like a statute of limitations and is thus subject  to the doctrines of "waiver, estoppel, and  equitable tolling." 455 U.S. at 393. Following  Zipes, in 1990 this court overruled an earlier  decision, Sims v. Heckler, 725 F.2d 1143 (7th  Cir. 1984), and held that with respect to a suit  against a governmental employer, the timely  filing of an EEOC charge is also not a  jurisdictional requirement to bringing a Title  VII claim in federal court. Rennie v. Garrett,  896 F.2d 1057, 1061-1062 (7th Cir. 1990). Ten  months later the Supreme Court validated our  holding in Rennie. In Irwin v. Department of  Veterans Affairs, 498 U.S. 89, 95-96 (1990), it  rejected the VA's sovereign immunity argument and  held that with respect to a Title VII claim  against a public employer, the timely filing of a  lawsuit is not a jurisdictional requirement but  (again) is a precondition, like a statute of  limitations, that is subject to equitable  tolling. In 1994 and 1996, this court applied the  same rationale as in Rennie and held that the  intermediate and initial time limits for filing  administrative complaints, respectively, are not  jurisdictional requirements but are preconditions  subject to the doctrines of equitable tolling and  estoppel. See White v. Bentsen, 31 F.3d 474, 475  (7th Cir. 1994), Bohac v. West, 85 F.3d 306, 311  (7th Cir. 1996).


8
This court has held that other components  (besides filing deadlines) of the requirement to  exhaust administrative remedies are not  jurisdictional absolutes but are preconditions  that are subject to equitable defenses. For  example, in Babrocky v. Jewel Food Company, 773  F.2d 857, 864(7th Cir. 1985), we stated that the  rule that the scope of an EEOC charge limits the  scope of a subsequent complaint is analogous to  timely filing requirements and is thus not a  jurisdictional rule. Similarly, in Schnellbaecher  v. Baskin Clothing Company, 887 F.2d 124, 126  (7th Cir. 1989), we held that the rule that a  failure to name a party in an EEOC charge  prevents that party from being sued under Title  VII, is "not jurisdictional, but rather is like a  statute of limitations, in that it is subject to  waiver, estoppel and equitable tolling."


9
Pack involved Title VII while Charlie F.  concerned the Individuals with Disabilities  Education Act, 20 U.S.C. sec. 1400 et seq.  Nevertheless, Charlie F.'s general pronouncement  on exhaustion is more in line with the Supreme  Court's and our decisions (particularly Rennie)  on Title VII. Consequently, Pack appears to stand  alone. To clear up the confusion that it has  created in this and in several other cases, we  overrule Pack and hold that, as a general matter,  the failure to exhaust administrative remedies is  a precondition to bringing a Title VII claim in  federal court, rather than a jurisdictional  requirement.3 Logically, then, the particular  component of exhaustion at issue in this case--  Gibson's failure to request the remedy he now  seeks (compensatory damages)--is a precondition,  like other components of the exhaustion doctrine,  supra, not a jurisdictional requirement. Thus, as  a matter of law, Gibson is not precluded from  attempting to use equitable estoppel to excuse  his failure to request compensatory damages  before the EEOC.


10
Gibson has a Pyrrhic victory, however, because  equitable estoppel against the government is  disfavored and is rarely successful. Edgewater  Hosp., Inc. v. Bowen, 857 F.2d 1123, 1137-1138,  as amended, 866 F.2d 228 (7th Cir. 1989). In  addition to the four elements that must be  satisfied to invoke estoppel against a private  party, equitable estoppel against the government  requires a fifth: that the government has engaged  in "affirmative misconduct." See id. at 1138  (listing elements). This is more than mere  negligence. Mendrala v. Crown Mortgage Co., 955  F.2d 1132, 1141 (7th Cir. 1992). It requires an  affirmative act to misrepresent or mislead. Id.  at 1141-1142. Gibson does not satisfy this  element because the "inequity" he cites is the  VA's failure to advise him of his right to seek  compensatory damages and his obligation initially  to do so administratively. This is not an  affirmative act; it is an omission that at most  amounts to "ordinary" negligence. Id. at 1142.  Indeed, this court has specifically stated that a  government's failure to discharge an "affirmative  obligation" is not the same as engaging in  "affirmative misconduct." Edgewater Hosp., 857  F.2d at 1138 n.8. Thus, Gibson's equitable  estoppel argument fails on the merits.4


11
The Supreme Court has reversed this court's  decision that would have given Gibson an  additional hearing in another forum. That option  being foreclosed, Gibson has now had a decision  on all the claims he presented to the EEOC. The  district court's dismissal of Gibson's claim for  compensatory damages is therefore AFFIRMED.



Notes:


1
 The additional arguments Gibson made were that  exhaustion was not required because: (1) the EEOC  lacked the statutory authority to award  compensatory damages, Initial Brief at 26-30; and  (2) the VA should be estopped from requiring  exhaustion in this case. Id. at 30-32.


2
 The VA notes the additional problem with Gibson's  second alternative argument: implicit in our  holdings that Gibson did not ask for compensatory  damages and that he thereby did not exhaust his  administrative remedies was our conclusion that  his one-time request to an EEOC investigator for  a "monetary cash award," did not constitute a  request for compensatory damages and thus did not  satisfy the exhaustion requirement. Gibson, 137  F.3d at 994 ("At one point, Gibson did instruct  the EEOC investigator that he would settle his  case for a 'monetary cash award' . . . . It would  be simpler if we could say that [by doing so]  Gibson put the EEOC on notice he was seeking  compensatory damages . . . but the record does  not support it.").


3
 Because this opinion partially overrules Pack v.  Marsh, it has been circulated among all judges of  the court in regular active service pursuant to  Circuit Rule 40(e). No judge favored rehearing en  banc.


4
 Gibson's argument would also fail because the  "party claiming estoppel has the burden of  demonstrating the elements," id. at 1138, and  Gibson did not list, let alone analyze, the  elements of equitable estoppel.


