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07/21/86 Teresa M. Downey, v. William M. Isaac

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 21, 1986

TERESA M. DOWNEY, APPELLANT

v.

WILLIAM M. ISAAC, CHAIRMAN, FEDERAL DEPOSIT INSURANCE CORP. 1986.CDC.246 DATE FILED: JULY 21, 1986

Before Ginsburg, Bork, and Buckley, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

Appeal from the United States District Court for the District of Columbia; Civil Action No. 83-3746.

MEMORANDUM

PER CURIAM DECISION

Teresa M. Downey, a female ex-employee of the Federal Deposit Insurance Corp. , appeals a decision of the district court dismissing her complaint under 42 U.S.C. § 2000e-16 (c) (1982) against William M. Isaac. Downey sued Isaac in his capacity as Chairman of the FDIC, alleging that she had been subjected to discrimination, retaliation, and constructive discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. The district court entered judgment against Downey on all three claims following a six-day bench trial. We affirm. I. The Discrimination Claim

The district court properly applied the methodology for allocating the burden of proof in Title VII disparate treatment cases established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-56 (1981). Downey presented evidence that, after going to work in an FDIC unit headed by Lawrence Pierce in March 1978, she was not promoted from grade 9 to grade 11 for one year, while a grade 9 male employee hired at the same time as Downey was promoted to grade 11 immediately upon going to work in the unit. She also presented expert testimony by Robert Davis, a former Deputy Assistant Secretary of Labor, that under FDIC personnel guidelines she was qualified for promotion to grade 11 when she began working for Pierce. This evidence was sufficient to make out a prima facie case of discrimination, and the FDIC was therefore required to present a plausible nondiscriminatory reason for Pierce's delay in promoting her. The FDIC met its burden of production by showing that, unlike the male employee, Downey's personnel data sheet (her "SF-171") did not disclose the requisite experience for promotion to grade 11.

Once the FDIC produced evidence rebutting Downey's prima facie case, the district court was required to rule against Downey unless the court believed it was more likely than not that the FDIC's explanation was pretextual. The court considered the evidence presented by both sides and found that Downey had not carried her overall burden of persuasion. Based on our review of the record, we are unable to conclude that this finding was clearly erroneous. See Fed. R. Civ. P. 52 (a).

On appeal, Downey claims that the district court improperly dismissed as irrelevant the testimony of Davis, Downey's expert witness. Davis' opinion that Downey was qualified for the promotion to grade 11 was based on his review of the position description for Downey's previous job. The court found, however, that in determining eligibility for promotion the FDIC routinely considers only an employee's SF-171 and does not look at the position description for the employee's previous job.

Downey asserts that this finding contradicts the FDIC's stipulation that it "adheres to standard Federal personnel policy and practice" in view of Davis' testimony that it is standard federal practice to review position descriptions. The short answer is that we are not persuaded that Davis testified that it is standard federal practice to review position descriptions. Our reading of the trial transcript suggests that Davis believes that review of position descriptions should be standard federal practice, but his testimony does no support Downey's assertion that it is standard practice. The finding that the FDIC does not ordinarily review position descriptions therefore did not contradict the FDIC's stipulation, and the court did not err in disregarding Davis' testimony. II. The REtaliation Claims

Downey claims that she was subjected to retaliation after filing an equal employment opportunity complaint in January 1980 concerning Pierce's one-year delay in promotion her to grade 11. The alleged retaliation took two basic forms: (1) Pierce refused to promote her to grade 12 after she had completed one year of work at the grade 11 level, and (2) she was not offered one of three vacant grade 12 superivory positions in an FDIC unit headed by William Creswick.

The analysis of Pierce's refusal to promote Downey to grade 12 after one year at the grade 11 level tracks the analysis of Downey's discrimination claim. Downey made out a prima facie case by submitting evidence that other employees in the unit had been promoted to grade 12 after completion of one year's service at the grade 11 level, and that, in a conversation with her, Pierce linked his refusal to promote her to her EEO complaint. The FDIC then met its burden of articulating a legitimate nondiscriminatory reason for Downey's treatment with evidence that she was an uncooperative employee who interacted poorly with Pierce's other subordinates. At this point the district court was forced to decide whether Downey had met her overall burden of proving retaliation, and the court concluded that she had not. This conclusion is supported by substantial evidence in the record, and we therefore are unable to discern clear error.

Downey argues on appeal that the court's rejection of her claim relating to Pierce's refusal to promote her to grade 12 must be reversed because the court made no explicit findings with respect to this claim in its June 14, 1985 Memorandum Opinion. There were pertinent findings in the court's May 28 bench ruling, however, bench ruling at 7, and these findings were sufficient to support the district court's rejection of her claim. See Kelley v. Everglades Drainage District, 319 U.S. 415, 422 (1943).

With respect to the refusal of William Creswick to hire Downey into his unit, the district court properly determined that this claim was time barred. Federal regulations governing the filing of EEO complaints provide in pertinent part that:

The agency may accept the complaint for processing . . . only if:

(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date . . . .

29 C.F.R. § 1613.214 (a) (1985). Of course, this thirty-day limitation is subject to "'waiver, estoppel and equitable tolling.'" Loe v. Heckler, 768 F.2d 409, 418 n.20 (D.C. Cir. 1985) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). In the usual case, however, an EEO complaint not filed in compliance with this regulation is time barred, and if the EEO complaint leads to a civil action under Title VII, the action must be dismissed by the district court. Milton v. Weinberger, 645 F.2d 1070, 1077 (D.C. Cir. 1981). Moreover, once the defendant in a Title VII case suggests that the plaintiff's claim is time barred under 29 C.F.R. § 1613.214 (a), the plaintiff has the burden of proving compliance with the regulation. See Woodard v. Lehman, 717 F.2d 909, 913-14 (4th Cir. 1983).

The only evidence presented by Downey to disprove the FDIC's contention that she did not comply with 29 C.F.R. § 1613.214 (a) was an affidavit in which she claimed that she met with an EEO Investigator in July 1981 to discuss the Creswick claim. This evidence was insufficient to demonstrate compliance with the regulation. Because Creswick filled the last Supervisory Financial Analyst position in his unit in late December 1980, Downey was required to bring Creswick's alleged retaliation to the attention of an EEO Counselor by late January 1981 in order to preserve the right to press her claim. Her July 1981 meeting came approximately six months too late and was with an EEO Investigator rather than a Counselor. Further, she presented no reasons excusing her from compliance with the regulation. The district court therefore did not err in ruling that Downey's claim concerning Creswick's failure to hire her was time barred. III. The Constructive Discharge Claim

Downey's final claim is that her January 1981 resignation from the FDIC should be considered a constructive discharge. The district court's findings that Downey had not been subjected to discrimination and retaliation dictated the conclusion that she had not been constructively discharged. We must affirm the district court for the same reason. Inasmuch as her evidence did not establish discrimination or retaliation, it is apparent that she did not fact "such an aggravated situation that a reasonable employee would be forced to resign." Borque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 66 (5th Cir. 1980).

JUDGMENT

This case was reviewed on the record on appeal from the United States District Court for the District of Columbia and was presented have received the court's full consideration; they occasion no need for a published opinion. See D.C. Cir. R. 13 (c).

For the reasons stated in the District Court's May 28, 1985 bench ruling and June 17, 1985 Memorandum Opinion, and for the reasons stated in the accompanying memorandum, it is

ORDERED and ADJUDGED by the court that the judgment of the District Court from which this appeal has been taken is affirmed. It is

FURTHER ORDERED by the court, sua sponte, that the Clerk shall withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. R. 14, as amended on November 30, 1981, and June 15, 1982. This instruction to the Clerk is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

19860721

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