Unpublished Disposition, 884 F.2d 1395 (9th Cir. 1986)

MEMORANDUM^* 

Plaintiffs appeal the grant of summary judgment in favor of defendants. The district court's ruling was based on plaintiffs' failure to exhaust administrative remedies by filing timely complaints with the Equal Employment Opportunity Commission. We affirm.

The five plaintiffs are current or former employees of the Equal Employment Opportunity Commission in the Los Angeles District office. They all claim to have been sexually harassed by Terrence Woods, former Chief of Operations Services of that office. Several lawsuits have been filed by the plaintiffs based on these claims, but all have been dismissed for failure to exhaust administrative remedies.¹ 

In bringing a Title VII discrimination claim, a federal employee faces three separate deadlines. See Cooper v. Bell, 628 F.2d 1208, 1213 & n. 8 (9th Cir. 1980). First, the employee must bring a complaint to the attention of an EEO Counselor within thirty days of the alleged discrimination. 29 C.F.R. Sec. 1613.214(a) (1) (i) (1987)² . If the complaint is not resolved informally, the employee must file a formal complaint within fifteen days of the final interview with the EEO counselor. Id. at Sec. 1613.214(a) (1) (ii)³ . Third, after administrative hearing and rejection of the complaint by the agency, the employee must file suit in district within thirty days of the rejection. 42 U.S.C. § 2000e-16(c).

The agency must extend the first two time limits, however, when "the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or ... for other reasons considered sufficient by the agency." Id. at Sec. 1613.214(a) (4).

Two issues are presented for review in this appeal. The first issue was litigated in Roberts II, and was held to be the law of the case in Roberts III. That issue is whether the April 17, 1986, letter from counsel for the plaintiffs to the EEOC was a formal complaint. The second issue, which arises in Roberts III, is whether the EEOC erred in finding that the formal complaints filed in May and June, 1987, were untimely, and that the circumstances did not require the agency to extend these deadlines.

The April 17, 1986, letter could not be a complaint. The regulations promulgated by the Commission, which are entitled to deference, Natural Resources Defense Council, Inc. v. Hodel, 819 F.2d 927, 929 (9th Cir. 1987); see also Bell v. Brown, 557 F.2d 849, 855 (D.C. Cir. 1977); require that a complaint be signed by the employee-complainant. 29 C.F.R. Sec. 1613.214(a) (1). This section contemplates that an employee may have a representative, but still requires the employee to sign the complaint. The district court was correct in holding that the April 17, 1986 letter was not a complaint.⁴ 

After the plaintiffs filed formal complaints in May and June, 1987, the Commission determined that the complaints were untimely, and that there were no reasons to excuse the deadlines in each particular case. Because the formal complaints were not filed until 1987, and any counseling that had occurred had been terminated several years earlier, the complaints were not timely. The issue is whether the untimely filing of the formal complaints should be excused. We generally review agency decisions for an abuse of discretion. See 5 U.S.C. § 706(2) (A); Blackfeet Tribe v. United States Dep't of Labor, 808 F.2d 1355, 1357 (9th Cir. 1987). Cf. Kontos v. United States Dep't of Labor, 826 F.2d 573, 575 n. 4 (7th Cir. 1987) (de novo standard of review applies to EEOC determinations as to whether deadline should be tolled under 29 C.F.R. Sec. 1613.214(a) (4)). We need not determine what standard of review should apply, however, because even under a de novo review, we find no circumstances that require equitable tolling of the time deadlines under 29 C.F.R. Sec. 1613.214(a) (4).

Although plaintiffs alleged they were never told about the time deadlines in filing a complaint, they presented no evidence to the Commission that they were "otherwise unaware" of the time deadlines. See 29 C.F.R. Sec. 1613.214(a) (4). The Commission specifically asked plaintiffs' attorney for information or arguments regarding why the time deadlines should be excused, but counsel presented no evidence. It was plaintiffs' burden to demonstrate to the Commission why the deadline should be excused, and they failed to meet that burden. The district court was correct in ruling that plaintiffs were not entitled to challenge the Commission's decision by presenting to the court evidence that was not presented to the Commission. As a result, summary judgment was appropriate as to each plaintiff.

AFFIRMED.