Teemac v. Henderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-11471
Summary Calendar
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HANDY M. TEEMAC,
Plaintiff-Appellant,
VERSUS
WILLIAM J. HENDERSON,
POSTMASTER GENERAL,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
July 26, 2002
Before JONES, SMITH, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Handy Teemac sued the Postmaster
General, claiming the United States Postal
Service (“USPS”) had fired him because of his
religion. The district court dismissed because
Teemac had failed to seek informal counseling
within forty-five days of the alleged
discrimination before filing a formal complaint
with the Equal Employment Opportunity
Commission (“EEOC”). The court rejected
Teemac’s request for equitable tolling.
Finding no error, we affirm.
I.
Teemac worked as a casual employee for
the USPS. He alleges that the USPS violated
the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., by discharging him because of

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his religious beliefs. Teemac claims he
informed a supervisor that he could not work
on Sundays but that the supervisor nonetheless
scheduled him to work on a Sunday. Teemac
did not show up, and in November 1996 the
USPS fired him for failing to follow
instructions.
II.
In March 1997, Teemac filed a formal com-
plaint with the EEOC. In June 1997, the
USPS determined that he had failed to make a
timely informal complaint to the EEOC
counsel as required by 29 C.F.R. § 1614.105.
The USPS dismissed Teemac’s formal claim.
The EEOC affirmed the USPS’s decision but
remanded for the USPS to conduct a supple-
mental investigation and determine whether
Teemac had constructive or actual notice of
the informal complaint requirement.
The USPS then found that Teemac had
constructive notice of the informal counseling
requirement and rejected Teemac’s request for
equitable tolling. The EEOC affirmed the
agency’s ruling and dismissed Teemac’s formal
complaint.
Teemac sued, explaining that he lacked ac-
tual notice of the informal counseling
requirement. He worked for the USPS for
only thirty-nine days, recently had immigrated
to the United States, unsuccessfully sought ad-
vice from local attorneys, and could not
understand the orientation session. He urges
that these circumstances justify equitable
tolling.
The district court found that Teemac had
failed to seek counseling from an EEO officer
within forty-five days of the adverse
employment action. The court rejected
Teemac’s requests for equitable tolling, noting
that he bore the burden of proving the need for
tolling and relying on this court’s strict
requirements for tolling. The district court
granted the USPS’s motion to dismiss the
complaint under FED. R. CIV. P. 12(b)(6).
III.
Federal employees must seek informal
counseling before they file an EEOC
complaint. 29 C.F.R. § 1614.105(a). If the
employee fails to do so, his claim is barred.
Pancheco v. Rice, 966 F.2d 904, 905 (5th Cir.
1992). The employee must establish waiver,
estoppel, or equitable tolling to circumvent
this requirement. Id.
A.
We have not precisely defined the standard
for reviewing a dismissal on the ground that
the federal employee failed timely to seek in-
formal counseling.1 We must consider wheth-
er district courts owe deference to the EEOC’s
conclusion. We also must reconcile the boiler-
plate abuse of discretion standard for re-
viewing refusals to toll with the boilerplate
de novo standard for reviewing dismissals on
1 Pacheco, 966 F.2d at 906-07 (reviewing dis-
missal on pleadings for failure to seek informal
counseling but failing to note the standard of re-
view); Henderson v. United States Veterans
Admin., 790 F.2d 436, 441 (5th Cir. 1986)
(reviewing agency and district court’s dismissal for
conformity with regulation but failing to describe
the relevant standard of review). See Oaxaca v.
Roscoe, 641 F.2d 386, 391 (5th Cir. Unit A Apr.
1981) (avoiding standard of review question by
finding that district court had dismissed complaint
prematurely and ordering further discovery on the
question of equitable tolling); Wilson v. Sec’y,
Dep’t of Veterans Affairs, 65 F.3d 402, 404 (5th
Cir. 1995) (reviewing for arbitrariness and
capriciousness the EEOC’s decision about whether
federal employee had timely filed an internal
appeal).

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the pleadings.
The district court reviewed the EEOC’s
refusal to toll de novo. In most cases, federal
district courts review deferentially an agency’s
formal adjudication and review the agency’s
interpretations o f its regulations for
arbitrariness and capriciousness. The agency’s
factfinding need only be supported by
substantial evidence.2 The Civil Rights Act of
1964, however, provides federal employees
with the same right to a de novo trial that
private employees possess. District courts
cannot presume the correctness of the EEOC’s
factual findings.3 Parity trumps the deference
normally afforded to administrative agencies.
We conclude that the de novo trial
requirement extends to the EEOC’s
determination about equitable tolling. Section
1614.105 codifies the doctrine of equitable
tolling. Although the regulation vests the
agency with the responsibility for making the
initial decision, the regulation also prescribes
guidelines. The agency must waive the
requirement if the employee lacked actual and
constructive notice of the requirement;
likewise, the agency must toll if outside events
prevented the employee from seeking informal
counseling.4
The regulation plainly limits agency
discretion, and courts can interpret these
regulatory limits as ably as can agencies.
Parity requires that district courts apply the
same standards that govern a private
employer’s civil action. Like every appellate
court to consider the issue, we conclude that
the district court should make an independent
judgment about an employee’s tolling request.5
2 Allentown Mack Sales & Serv., Inc., 522 U.S.
359, 366-67, 374 (1998) (explaining that the
Administrative Procedure Act directs courts to
review agencies for “reasoned decisionmaking,”
which requires arbitrary and capricious review of
the agency’s interpretation of its own regulations
and substantial evidence review of its fact finding).
3 Chandler v. Roudebush, 425 U.S. 840, 862
(1976) (requiring district court to conduct de novo
trial even after EEOC had concluded that federal
employee’s title VII claim lacked merit); id. at 864
n.39 (“Prior administrative findings made with
respect to an employment discrimination claim
may, of course, be admitted as evidence at a
federal-sector trial de novo.”) (citations omitted).
See Century Marine Inc. v. United States, 153
F.3d 225, 231 (5th Cir. 1998) (explaining that even
where the Contracts Dispute Act prohibits
administrative findings from being binding, the
district court can consider them as evidence in a
subsequent proceeding).
4 The text provides:
The agency or the Commission shall extend
the 45-day time limit in paragraph (a)(1) of
this section when the individual shows that
he or she was not notified of the time limits
and was not otherwise aware of them, that
he or she did not know and reasonably
should not have known that the
discriminatory matter or personnel action
occur red, that despite due diligence he or
she was prevented by circumstances beyond
his or her control from contacting the
counselor within time limits, or for other
reasons considered sufficient by the agency
or the Commission.
29 C.F.R. § 1614.105(a)(2).
5 E.g., Roman-Martinez v. Runyon, 100 F.3d
213, 216, 218 (1st Cir. 1996) (reviewing, de novo,
district court’s dismissal at summary judgment
because of employee’s request for tolling informal
counseling requirement based on mental condition);
(continued...)

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We now must consider our standard for
reviewing the district court’s decision.
A district court may refuse to toll
limitations because it interprets a statute or
regulation to prohibit tolling or because it
refuses to exercise its equitable discretion to
toll. Where the district court interprets a
statute or regulation, appellate courts review
de novo.6 Where, however, the district court
declines to exercise its equitable powers, we
review decisions on the pleadings only for
abuse of discretion.7 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.8 “[R]aising the limitations defense in a
motion to dismiss may easily be premature
because facts tolling the running of the statute
do not necessarily appear in the complaint.”
Dawson, 4 F.3d at 130 (citing 5 CHARLES A.
WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1277 (West 2d
ed. 1990)).
B.
The regulation requires extension of the
time limit where the employee was neither
“notified” nor “otherwise aware” of the
informal counseling requirement. 29 C.F.R.
§ 1614.105(a)(2); Oaxaca, 641 F.2d at 391.
We review this interpretive question de novo.
Supra note 6.
Providing adequate noti fication to
employees generally is sufficient; the employer
need not prove that an individual employee
understood the notice.9 Teemac does not
5(...continued)
Goldman v. Sears, Roebuck & Co., 607 F.2d
1014, 1017 (1st Cir. 1979) (affirming district
court’s refusal to give deference to EEOC’s class-
ification of claim as timely); Briones v. Runyon,
101 F.3d 287, 290 (2d Cir. 1996) (noting district
court’s independent review and subsequently re-
viewing district court’s decision); Kontos v. United
States Dep’t of Labor, 826 F.2d 573, 575 n.4 (7th
Cir. 1987) (noting potential conflict between
authority vested by regulation and parity principle
and choosing to exercise de novo review).
6 FDIC v. Dawson, 4 F.3d 1303, 1308 (5th Cir.
1993) (“Because the district court held that
equitable tolling was unavailable as a matter of law
and did not withhold equitable tolling simply as a
matter of discretion, we follow Cruz and apply the
de novo standard of review.”); Hickey v. Irving
Indep. Sch. Dist., 976 F.2d 980, 983-84 (5th Cir.
1992) (remanding because district court failed to
consider Texas statute that mandates tolling statute
of limitations until claimant turns eighteen).
7 United States v. Patterson, 211 F.3d 927, 931
(5th Cir. 2000) (reviewing refusal to toll Anti-
Terrorism and Effective Death Penalty Act’s
(“AEDPA”) one-year time limit for abuse of dis-
cretion); Molo v. Johnson, 207 F.3d 773, 775 (5th
Cir. 2000) (reviewing district court’s conclusion
(continued...)
7(...continued)
that AEDPA’s time limit does not violate the
Suspension Clause); Ott v. Johnson, 192 F.3d 510,
513 (5th Cir. 1999) (reviewing, for abuse of
discretion, decision not to toll); Fisher v. Johnson,
174 F.3d 710, 712-13 (1999) (explaining that
district court’s discretionary refusal to toll one-year
time limit should be reviewed for abuse of
discretion, even where made on the pleadings).
8 Shipp v. McMahon, 234 F.3d 907, 911 (5th
Cir. 2000), cert. denied, 532 U.S. 1052 (2001).
9 Pauling v. Sec’y of the Dep’t of the Interior,
160 F.3d 133, 136 (2d Cir. 1998) (refusing to find
that informational posters created constructive
notice because employee lacked access to those
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argue that the USPS failed generally to notify
its employees of the counseling requirement.
For example, he acknowledges that the USPS
distributed information about the informal
counseling requirement during new employee
orientation; posters also displayed the
information. Teemac, instead, relies on his
specific circumstances to prove that he
excusably failed to learn about the informal
counseling requirement. This argument
sounds more like a traditional equitable tolling
argument, or a request for tolling based on
“other reasons.”
C.
We review for abuse of discretion a district
court’s decision not to exercise equitable toll-
ing or extend the time limit for “other
reasons.” Supra note 7. The party who
invokes equitable tolling bears the burden of
proof.10 Equitable tolling applies only in “rare
and exceptional circumstances.” Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
Courts grant requests for equitable tolling
most frequently 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). In dictum, we have stated that
equitable tolling may apply when an
employee’s “lack of sophistication” prevents
him from understanding title VII’s procedures.
Rowe v. Sullivan, 967 F.2d 186, 192 (5th Cir.
1992).
Teemac’s strongest argument for equitable
tolling is his inability to speak fluent English;
he claims the language barrier prevented him
from understanding the instructions provided
during new employee orientation. We
previously have refused to toll statute of
limitations based on an employee’s lack of
familiarity with English. In Nat’l Ass’n of
Gov’t Employees v. City Pub. Serv. Bd., 40
F.3d 698, 709 (5th Cir. 1994), however, the
employees’ English-speaking attorney could
interpret t itle VII’s administrative
requirements. Because Teemac did not have
legal representation available at the new
employee orientation, National Association
does not resolve the question.
More persuasively, courts in a long line of
cases have held that employees’ ignorance of
the law, even when stemming from illiteracy,
cannot justify tolling.11 Section 1614.105
9(...continued)
areas but admitting possibility of constructive
notice); Jakubiak v. Perry, 101 F.3d 23, 27 (4th
Cir. 1996) (considering whether employee bulletin
was “reasonably geared” to provide notice); Clark
v. Runyon, 116 F.3d 275, 277-78 (7th Cir. 1997)
(finding that USPS’s prominent posters announcing
requirement counted as notification, even if
employee was not aware of informal counseling
requirement); Johnson v. Runyon, 47 F.3d 911 (7th
Cir. 1995) (explaining that “subjective ignorance
alone does not automatically” require tolling under
the regulation).
10 Wilson, 65 F.3d at 404; Conaway v. Control
Data Corp., 955 F.2d 358, 362 (5th Cir. 1992)
(“[T]he plaintiff has the burden of demonstrating a
factual basis to toll the period.”) (citation omitted).
11 Baldwin County Welcome Ctr. v. Brown, 466
U.S. 147, 152 (1984) (finding that even a pro se
plaintiff can forfeit his rights if he sleeps on them);
Mohasoc Corp. v. Silver, 447 U.S. 807, 825
(1980) (refusing to excuse lay persons from
compliance with title VII statute of limitations even
though some courts of appeals had adopted a more
lenient interpretation of the time limit); Graham-
Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 561 (6th Cir. 2000) (explaining
(continued...)

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departs from this well-established principle by
making the federal employee’s knowledge of
the informal counseling requirement relevant.
The regulation, however, cabins the reasons
that a district court may be required to toll.
The regulation mandates tolling only where the
employee lacks actual and constructive notice
of the informal complaint requirement.
We read this regulation as a narrow
exception, situated against the well-established
background rule that employees are charged
with knowing the law. Once the USPS
notified its employees about the informal
counseling requirement, Teemac had the
obligation to investigate terms and conditions
of employment left ambiguous because of his
language deficiencies. We will not toll the
time limit because of Teemac’s lack of English
fluency.
Teemac spoke to local lawyers and visited
libraries in an attempt to understand his
employment rights; he argues that he zealously
pursued his rights and merely made a careless
and understandable mistake. Although the em-
ployee’s diligent pursuit of remedies is rele-
vant, Teemac admits that, standing alone, it
does not justify tolling. Outside the title VII
context, courts have excused missed deadlines
where plaintiffs filed a defective pleading.12
Teemac, however, never brought an informal
complaint before the EEO counselor, even af-
ter the forty-five-day deadline had lapsed; he
only filed the formal complaint.
Formal and informal complaints serve very
different purposes; informal counseling fosters
early and amicable dispute resolution.
Discounting Teemac’s good faith procedural
mistake as minor would compromise the
informal complaint requirement. We cannot
excuse all inadvertent noncompliance as
harmless.
Teemac also argues that he did not work at
the post office very long, did not see the in-
formational posters, and had a subordinate
status as a casual worker. None of these ar-
guments excuses noncompliance. The USPS
provided information on the informal
counseling requirement during employee
orientation, at the beginning of Teemac’s
employment. The orientation material
supplemented the posters. Although Teemac
explains that casual workers received an
abbreviated orientation, he does not argue that
the USPS failed to provide them with the
information on informal counseling. Nor does
he contend that the USPS described casual
workers as exempt from the informal
counseling requirements.
AFFIRMED.11(...continued)
that even pro se litigants are charged with knowing
and following the law); Fisher, 174 F.3d at 714
(“[I]gnorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt
filing.”); Barrow v. New Orleans S.S. Ass’n, 932
F.2d 473, 478 (5th Cir. 1991) (finding that
illiteracy and ignorance of the law cannot justify
equitable tolling).
12 Burnett v. N.Y. Cent. R.R., 380 U.S. 424,
425-27 (1965) (finding that suit against railroad
(continued...)
12(...continued)
that employee improperly filed in state court would
toll the federal statute of limitations); Perez v.
United States, 167 F.3d 913, 918 (5th Cir. 1999)
(tolling limitations period where plaintiff named
national guard in wrong capacity and time limit
subsequently lapsed).

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