LAWRENCE ARNOLIE, JR., PETITIONER V. SECRETARY OF THE NAVY No. 90-5701 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A9) is unpublished. The opinion of the district court (Pet. App. B8-B13) is also unpublished. JURISDICTION The decision of the court of appeals was entered on April 24, 1990. A petition for rehearing was denied on June 13, 1990. The petition for a writ of certiorari was filed on September 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner's complaint alleging employment discrimination was properly dismissed because he failed to file a timely administrative claim. STATEMENT 1. Petitioner, who is black, was hired by the Department of the Navy as a quality assurance specialist in 1981. He was promoted to the GS-9 grade level in February 1984. Later in 1984, petitioner requested and, on January 6, 1985, received reassignment to a different division. Less than one month later, on February 2, 1985, petitioner became eligible for promotion to the GS-11 grade level. The Navy transferred him to another unit the next day without promoting him. In April 1985 and April 1986 petitioner received satisfactory work performance evaluations. He was promoted to the GS-11 grade level in October 1987. Pet. App. A2. 2. The governing regulations provide that an administrative claim must be filed within thirty days of the allegedly discriminatory action. 29 C.F.R. 1613.214(a)(i). On December 10, 1985, petitioner contacted an Equal Employment Opportunity counselor and filed an informal employment discrimination complaint. /1/ He alleged that because of his race he had not been promoted, although two similarly situated white women had been. /2/ His formal administrative complaint was filed on January 8, 1986. The agency investigated petitioner's complaint and on October 28, 1986, notified him of its conclusion that there was no discrimination in the failure to promote him. Pet. App. B9. Petitioner filed a timely appeal of that decision with the EEOC; on September 16, 1987, the Commission affirmed the Navy's decision on the merits, and informed petitioner of his right to sue. EEOC Appeal No. 01870279. 3. Meanwhile, petitioner had filed this action in the United States District Court for the Northern District of California on July 6, 1987, alleging race discrimination; the complaint was subsequently amended to include claims of sex discrimination, retaliation and disparate treatment. Pet. App. B8. /3/ The district court granted summary judgment for the Secretary. Pet. App. B9-B13. Although the court held that petitioner had failed to file a timely EEO complaint and had failed to exhaust his administrative remedies as to his sex discrimination and retaliation charges (Pet. App. B8-B9), it also considered the claim on the merits, and concluded that petitioner had failed to establish even a prima facie basis for any of his claims (Pet. App. B10-B13). 4. The court of appeals affirmed. It found (Pet. App. A8) that petitioner "has come forward with no evidence to suggest that the Navy was required to give him any type of review in November 1985," and therefore that petitioner's administrative complaint was untimely, because he "failed to identify a discriminatory event within the thirty days preceding" its filing (ibid.). /4/ ARGUMENT Petitioner's primary claim in this Court is that respondent should be barred from asserting the thirty-day time limit for filing an initial claim because his employer "expressly informed the Petitioner in writing that his claims were timely filed." Pet. 7-8. That claim is without merit. Petitioner has never identified -- in the district court, in the court of appeals or indeed in his petition to this Court -- any "express statements" that inform him that his original complaint was timely filed. /5/ Although petitioner refers to the EEOC notice of his right to sue (Pet. 2), that notice (which he received only after he filed his complaint) contains no such statement. Instead, it simply informs him that further review must be timely sought. See Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1973). Our review of the record has failed to disclose any such statement. /6/ In any event, petitioner claims only that he was informed after he filed his administrative complaint that it was timely. Even if such a statement were made, it would not constitute the sort of misrepresentation that would justify tolling the filing time limit, because it could not have caused the untimely filing (see Irwin v. Veterans Administration, No 89-5867 (Dec. 3, 1990), slip op. 6 & n.4). Alternatively, petitioner suggests that respondent is estopped by the failure to notify him at the administrative level that his claim had been untimely filed. Pet. i, 8. That suggestion is also without merit. The fact that petitioner's race discrimination claim was rejected on its merits in the administrative process simply means that he obtained more extensive procedural relief than he was entitled to -- but that error in petitioner's favor certainly does not require consideration of his claim on the merits on judicial review. /7/ "The mere receipt and investigation of a complaint does not waive objection to a complainant's failure to comply with the original filing time limit when the later investigation does not result in an administrative finding of discrimination." Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985), citing Saltz v. Lehman, 672 F.2d 207, 208 (D.C. Cir. 1982); Oaxaca v. Roscoe, 641 F.2d 386, 389-390 (5th Cir. 1981). It would not be appropriate to remand this case for reconsideration in light of this Court's recent decision in Irwin v. Veterans Administration, No. 89-5867 (December 3, 1990), stating that "the rule of equitable tolling (is) applicable to suits against the Government() in the same way that it is applicable to private suits" (slip op. at 6). Both courts below considered the timeliness issue under a standard at least as lenient as that adopted in Irwin, but petitioner failed to meet it. /8/ The courts below utilized the prevailing Ninth Circuit standard, "treating at least the first intra-agency filing period for lodging the initial charge * * * as the equivalent of a statute of limitation, subject to equitable extension in appropriate cases." Cooper v. Bell, 628 F.2d 1208, 1213 (9th Cir. 1980), cert. denied, 471 U.S. 1022; see Oaxaca v. Roscoe, 641 F.2d 386, 388 (5th Cir. 1981); Rennie v. Garrett, 896 F.2d 1057 (7th Cir. 1990). /9/ There was no basis for an equitable extension here. Petitioner was well acquainted with the requirement of a timely administrative complaint, because he had filed EEO charges in the past. Gov't C.A. Br. at 19 n.5. Moreover, petitioner provided no evidence, and none was found in the record, to suggest that he was unaware of respondent's allegedly discriminatory conduct until thirty days before his December 1985 administrative complaint. Id. at 19. /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MARLEIGH DOVER SUSAN SLEATER Attorneys DECEMBER 1990 /1/ The district court opinion incorrectly states that the informal complaint was filed on November 20, 1985. Pet. App. B9. /2/ The EEO counselor's worksheet and report, which was furnished to petitioner, includes a space for indicating the date the "Alleged Discriminatory Incident Occurred." That space contains the date of November 20, 1985. There is no explanation elsewhere in the record of how that date was determined. Petitioner's complaint was based simply on his contention that he had performed satisfactorily at the GS-9 level, and was therefore entitled to the non-competitive promotion to the GS-11 level as soon as he became eligible. Even if petitioner's complaint could be read as contending that the promotion of the women constituted discrimination against him, those promotions did not occur within thirty days of his complaint: one of the two women cited by petitioner had been hired at the GS-11 level on August 4, 1985; the other was promoted to that level on February 17, 1985. Pet. App. A2. /3/ Petitioner alleged, inter alia, a discriminatory failure to give him a mid-year work performance review. Pet. App. A4. /4/ The court of appeals also rejected petitioner's claim that his administrative complaint was a timely challenge to a continuing policy of discrimination, finding that petitioner could "point to no facts to support such an allegation" (Pet. App. A8); instead, the court cited evidence of non-discriminatory promotions of similarly situated employees that "refutes (petitioner's) conclusory allegation" of a Navy policy of discriminatory promotions (id. at A9). Petitioner does not renew that claim in this Court. /5/ In the court of appeals, petitioner relied on the statement in the EEOC decision that "appellant timely appealed the agency's final decision received October 28, 1986, that it did not discriminate against him." Pet. C.A. Reply Br. at 7. But the fact that petitioner filed a timely appeal to the EEOC from the final agency determination on his administrative complaint obviously says nothing about whether the administrative complaint itself was timely. /6/ The closest thing to such a statement is the unexplained date on the worksheet of the EEO counselor (see note 2, supra). As we have explained, there appears to be no basis for that date. Petitioner does not appear to have relied upon it to establish the timeliness of his complaint, and such reliance would, in any event, have been unfounded. /7/ Petitioner asserts (Pet. 8) "(i)f the Respondent had told the Petitioner that his claims were not timely filed, initially, the Respondent (sic, presumably petitioner) had a separate and distinct right to contest the determination that the employment claims were not timely filed." Petitioner does not suggest any basis on which he might successfully have asserted that right. In any event, petitioner had ample opportunity to defend the timeliness of his administrative complaint when it was challenged on judicial review. In the court of appeals, petitioner defended the timeliness of his administrative complaint on two grounds. First, he claimed (Pet. C.A. Br. 11-13) that respondent's refusal to promote him constituted a continuing violation. Second, he asserted (Pet. C.A. Br. 13-15) that the discriminatory act was respondent's failure to give him a "mid-year review" of his work performance. Both claims were rejected by the court of appeals (Pet. App. A4-A9); they are not reasserted here. In any event, the second claim rests on a misreading of the record. Petitioner received his normal work performance review on April 5, 1985 (Pet. C.A Br. 8), so even if -- contrary to the conclusion of the court of appeals -- he was entitled to a "mid-year" appraisal, that right ripened on October 5, 1985, and his informal complaint was not filed until December 10, more than 30 days thereafter. /8/ Petitioner has never suggested that he was "induced or tricked by (government) misconduct into allowing the filing deadline to pass" (Irwin slip op. at 6), and he has never suggested that he made any attempt to complain before he contacted the EEOC counselor on December 10, 1985, after the time limit had expired. See ibid. /9/ Both parties agreed that this was the correct standard. Pet. C.A. Br. 12; Gov't C.A. Br. 19. /10/ Petitioner's deposition testimony indicates that his delay in filing was a strategic choice. Petitioner stated that he waited to file his complaint because: I just said, "Hey I will give it a few months, maybe it might have been an oversight or something." Arnolie May 26, 1988, Dep. at 24.