Unpublished Disposition, 865 F.2d 264 (9th Cir. 1983)

MEMORANDUM^** 

This appeal addresses the timeliness of Otis' claim of mental handicap discrimination under EEOC filing deadlines. He raises the waiver of timeliness, accrual of his claim and equitable tolling. We affirm.

FACTUAL BACKGROUND

Otis worked as a mail handler at the Salt Lake City Post Office for two and a half years. He resigned on December 26, 1980, having exhausted his accumulated sick leave during the last four months of his employment.

When he applied for reinstatement with the Post Office at Long Beach on June 29, 1982, it was denied. An August 3, 1982 letter from the Long Beach office indicated that denial occurred because of his poor attendance while employed at Salt Lake City.

He suspected unfair treatment and contacted Congressman Anderson. At the request of the congressman, the Postal Service asked Otis to provide information about his disability, reconsidered its decision and again denied reinstatement.

Fourteen months after the initial denial, Otis sought an EEOC counselor. This meeting led to his EEOC claim of mental handicap discrimination against the Postal Service.

Otis claimed that he saw no bulletins or posters while working at Salt Lake City and received no orientation about filing deadlines.

An agency hearing was held on Otis' claim. The hearing examiner recommended a finding of no discrimination. The Postal Service entered a final agency decision.

Otis appealed to the EEOC Office of Review and Appeals which affirmed. He appealed that decision to the district court, which granted summary judgment because Otis failed to contact the EEOC within the 30-day deadline required by 29 C.F.R. Sec. 1613.214(a) (1) (i).

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, viewing the evidence in a light most favorable to the nonmoving party. Dolphin Tours v. Pacifico Creative Serv., 773 F.2d 1506, 1509 (9th Cir. 1985).

DISCUSSION

Otis argues that the Post Office waived the right to challenge the timeliness of his EEOC claim.

There was no waiver. "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 investigation does not result in an administrative finding of discrimination." Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985). The final agency action indicated no discrimination.

Otis asserts also that the court erred in granting summary judgment because he missed the 30-day filing period under 29 C.F.R. Sec. 1613.214(a) (1) (i), and thereby failed to exhaust his administrative remedies. He contests when the filing period began to run.

The court determined properly when the EEOC filing period began and that Otis failed to meet it. 29 C.F.R. Sec. 1613.214(a) (1) (i) requires that a complainant contact the EEOC within 30 calendar days of the discriminatory event. The filing period begins to run when the facts showing discrimination become apparent to a similarly situated person with a reasonably prudent regard for his rights. Boyd v. United States Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985) (construing 29 C.F.R. Sec. 1613.214(a) (1) (i)).

Upon receipt of the Post Office's letter denying him reinstatement, Otis learned that poor attendance was the basis for its decision. A reasonably prudent person would have seen then that his rejection may have been based on his mental handicap and treatment. He first sought help of the EEOC more than a year later, on November 14, 1983. The court concluded properly that he failed to comply with the regulation.

Otis contends finally that the court erred in deciding that no facts or arguments supported equitable tolling under Cooper v. Bell. We disagree.

Our standard of review requires that we consider two questions. First, did Otis produce evidence to support equitable tolling? Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Second, did he present enough evidence that a fact finder could find in his favor? Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

29 C.F.R. Sec. 1613.214(a) (4) governs the showing required to establish a genuine issue of fact on equitable tolling. It states: " [the] agency shall extend the time limits in this section ... [w]hen the complainant shows that he was not notified of the time limits and was not otherwise aware of them...."

This requires the plaintiff to show that he had neither official nor actual notice of the 30-day filing period. Cooper v. Bell, 628 F.2d 1208, 1212 (9th Cir. 1980) (construing 5 C.F.R. Sec. 713.214(a) (4), the predecessor of 29 C.F.R. Sec. 1613.214(a) (4)).

In support of its motion for summary judgment, the Postal Service provided affidavits showing that EEOC information was posted and openly available at Salt Lake City and that the orientation program there when Otis started work covered basic information about EEOC claims. Otis offered nothing in response which countered the showing made. He did not use discovery procedures or deny that the information was timely posted. He has failed to present a genuine issue of fact as to official notice.

There was evidence that notices were posted at the Long Beach Post Office but Otis would not have seen them because he never visited that office. We find no basis to establish equitable tolling. It is clear that constructive notice was given. EEO regulations require no more.

In Anderson, the Court clarified that to raise a 'genuine' issue of fact, the nonmoving party must present evidence sufficient on the essential elements for a jury to return a verdict in his favor. Id., 477 U.S. at 248-49. Otis' denials do not controvert the Post Office's affidavits which established the adequacy of the official notice at Salt Lake City.

The grant of summary judgment was proper.

Affirmed.