Brief for Smith V U S P S And Bonilla

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Appellate Brief

Question Presented / Issue Statement

Appellant Mary Smith seeks review of the decision of the United States District Court for the District of Anytown, which granted judgment in favor of appellees, the United States Postal Service (U.S.P.S.) and Jim Bonilla, Regional Supervisor of the U.S.P.S., on their motion to dismiss appellant's complaint for failure to exhaust administrative remedies in appellant's lawsuit for gender discrimination, hostile work environment, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). The questions presented in that case was whether appellant provided sufficient facts to warrant tolling her claim under a theory of equitable estoppel or whether the Court should refuse to hear her claims because they were filed after the applicable tolling period. Specifically, these questions are:

Does the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) prevent Ms. Smith from bringing her claim?

2) Is the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) triggered by the last act of discrimination or when a plaintiff claims a constructive discharge?

3) Is Ms. Smith equitably estopped from bringing her claim?

Jurisdiction

Jurisdiction of this Court is invoked under Section 1291, Title 28, United States Code, as an appeal from a final judgment of conviction and sentence in the United States District Court for the District of Anytown. Notice of appeal was timely filed in accordance with Rule 4(b) of the Federal Rules of Appellate Procedure.

Statutory Provisions Involved

Does the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) prevent Ms. Smith from bringing her claim? If so, does the exception in 29 C.F.R. § 1614.105(a)(2) apply?

Standard of Review

The standard of review refers to the deference that the appellate court gives to the lower court's decisions and is a question of federal procedure, which is governed by federal law. Freund v. Nycomed Amersham, 347 F.3d 752, 762 (9th Cir. 2003). The Court is being asked to determine whether the appellant's case is moot, which depends on the Court's interpretation of two statutes and the court's determination if the judicial principle of equitable estoppel would apply to bar the application of the statute of limitations. Questions of mootness, statutory interpretation, and the application of equitable relief are all questions of law, not questions of fact, triggering the use of the de novo standard of review. The use of the de novo standard of review, which is the highest standard of review, to resolve questions of law has been explained by the Supreme Court as follows:

District judges preside alone over fast-paced trials: Of necessity they devote much of their energy and resources to hearing witnesses and reviewing evidence. Similarly, the logistical burdens of trial advocacy limit the extent to which trial counsel is able to supplement the district judge's legal research with memoranda and briefs. Thus, trial judges often must resolve complicated legal questions without benefit of extended reflection or extensive information. ... Courts of appeals, on the other hand, are structurally suited to the collaborative juridical process that promotes decisional accuracy. With the record having been constructed below and settled for purposes of the appeal, appellate judges are able to devote their primary attention to legal issues." Salve Regina College v. Russell, 499 U.S. 225, 231-32 (1991).

Statement of Case / Statement of the Facts

Appellant worked for U.S.P.S. as a full-time mail carrier between May 2011 and August

2014 after having been hired by former Regional Supervisor Chandler Bing. In November 2011, appellant was relocated to another region for poor performance on her assigned route, and U.S.P.S. put appellee Bonilla in charge of Plaintiff's work. Appellant alleged gender discrimination by appellee Bonilla, including his failure to issue her a pay raise because she should find a man to support her and failure to upgrade her to a more senior route. In July 2013, appellant began to complain to appellee U.S.P.S.'s Human Resources Manager, Edith Lehr. Lehr initiated an investigation into appellee's conduct. However, Lehr was in a sporadic romantic relationship with appellee Bonilla and discouraged appellant's active pursuit of a misconduct claim. Appellee Bonilla continued to describe appellant's work as a "man's job," assigned her menial tasks, and even delivered a speech at a company picnic talking about appellant's need to find a husband and quit the workforce. Appellant quit her job on August 6, 2014.

On September 16, 2014, appellant met with an Equal Employment Opportunity Commission (EEOC) counselor to discuss appellee Bonilla's conduct throughout her employment. The EEOC counselor failed to file suit on her behalf.

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Appellant filed a charge of gender discrimination against appellees, with the EEOC on September 19, forty-five days after quitting her job. By October 10, 2014, appellant received a notice from the EEOC that her complaint was being rejected on the grounds that she waited more than forty-five days after the last alleged discriminatory act by appellee Bonilla to contact an EEOC counselor. On December 18, 2014 Smith filed a lawsuit in the United States District Court for the District of Anytown, alleging that appellee Bonilla had discriminated against her on the basis of her gender, that he created a hostile work environment for her, and that as a result, she suffered a constructive discharge from her employment. Smith filed the same claims against appellee U.S.P.S. under the doctrine of respondeat superior. Appellees filed a motion to dismiss appellant's claims for failure to exhaust administrative remedies. The lower court granted judgment in favor of appellees.

Summary of the Argument

The lower court did not err when it granted summary judgment in favor of appellees because the claim was barred by the statute of limitation, laches prevented the appellant from bringing older claims, and equitable estoppel did not apply to bar the statute. Although appellant filed her complaint with the EEOC within 45 days of ending her employment with appellee U.S.P.S., she did not file her complaint with 45 days of the last alleged act of discrimination. The time limitation outlined in 29 C.F.R. § 1614.105(a)(1) is triggered by the last act of discrimination, not when a plaintiff claims a constructive discharge. Therefore, the time limitation outlined in 29 C.F.R. § 1614.105(a)(1) prevented appellant from bringing her claim? Furthermore, appellant is equitably estopped from bringing her claim, because nothing the appellees did was responsible for her delay and she did not meet the exceptions contained in 29 C.F.R. § 1614.105(a)(2). Specifically:

A. In this case the limitations period was triggered by last act of discrimination and not the constructive discharge because appellant failed to allege a pattern of behavior that would constitute continuing discrimination after her last alleged act of discrimination.

B. Because the statute of limitations was triggered by the last act she cannot bring a continuing violations claim. While this result deprives the appellants of an opportunity to have her legal claims heard, the 45 day period was designed to improve efficiency and prevent forcing employers from litigating stale claims, where evidence could be difficult to gather.

C. While there is some support in case law for the idea that a constructive discharge that is the result of gender-based discrimination is, in and of itself, an act of discrimination, a constructive discharge, alone, is not sufficient to demonstrate ongoing discrimination. Plaintiffs can allege that a constructive discharge is the result of a pattern of discrimination, but must provide factual support for that pattern that is ongoing at the time of the constructive discharge. Allowing plaintiffs to claim the date of an alleged constructive discharge as the date of the last occurrence of discrimination would defeat the purpose of the statute of limitations, bringing back continuing violations that would invite the introduction of the type of stale evidence that the statute seeks to avoid. Furthermore, it would allow a plaintiff alleging constructive discharge to claim harassment even if an employer remedied the harassment, if the employer fired the plaintiff for any reason or the plaintiff decided to leave the employer for any reason at any time after an act of discrimination.

D. Appellee U.S.P.S.'s claim of equitable estoppel is valid defense because actions of Postal Service did not delay plaintiff from pursuing claim.

E. There is no evidence suggesting that the statutory exceptions outlined in 29 C.F.R. § 1614.105(a)(2) applied to the scenario. Appellant was aware of the statutory time limits contained in 29 C.F.R. § 1614.105(a)(1) and has failed to allege that appellees engaged in behavior that would have prevented her from bringing her claim within that statutory time period.

Argument

29 C.F.R. § 1614.105(a)(1) provides the time limits for initiating contact with the EEOC in order to preserve a claim against an employer. Under 29 C.F.R. § 1614.105(a)(1), "Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age, disability, or genetic information must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. (1) An aggrieved person must initiate contact with….....

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