UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CURRIER, PAUL T.

v.

RADIO FREE EUROPE


98-7020b

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: Appellant brought a Title VII  suit against
his employer. The employer moved for summary 


judgment, asserting that appellant's suit was barred because  he had
not timely exhausted his administrative remedy with  the EEOC.
Rejecting appellant's contention that he had filed  his EEOC complaint
on time and his alternative argument  that equitable principles should
operate to toll the filing  requirement, the district court granted
summary judgment in  favor of the employer. We reverse in part and
affirm in part.


I.


Appellant Paul Currier was hired as an independent con- tractor by
appellee Radio Free Europe/Radio Liberty, Inc., a  non-profit Delaware
corporation with primary operations in  Prague, the Czech Republic.
Appellant was to serve as a  computer network engineer and systems
analyst at the  Prague location, and entered into a six-month contract
with  appellee to begin December 31, 1995 and to expire on June  30,


In February or March 1996, Currier went to a restaurant  in Prague
after work. Candace O'Brien, appellee's Director  of Human Resources,
was seated at a table with other co- workers. O'Brien, apparently
inebriated, made disparaging  comments regarding appellant's sexual
prowess. She then  unbuttoned his pants, squeezed his penis, and
exposed his  testicles. The following day, O'Brien--a supervisory
official  who had authority to fire appellant--instructed him that "he
 had better get in line [with her version of what happened] or 




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n 1 Of course we take the facts and all reasonable inferences 
therefrom in the light most favorable to appellant, the nonmoving 
party. See, e.g., Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir. 1997). 
We note that appellant, then acting pro se, alleged neither his 
finality nor his equitable estoppel argument in his complaint, but 
only in his opposition papers to appellee's motion for summary 
judgment. Although appellee raises the issue of whether appellant 
should be entitled to amend his complaint in the absence of a formal 
request under Fed. R. Civ. P. 15, we assume without deciding that 
appellant would be entitled to amend his complaint. We think this 
course proper given the district court's disposition of the summary 
judgment motion in light of all of appellant's allegations, see Civ. 
No. 97-1619, Mem. Op. at 11 n.3 (D.D.C. Jan. 14, 1998).


he would have a problem with her." (O'Brien's "official  version"
maintained that appellant had voluntarily exposed  himself at the
table.) O'Brien further threatened that if  appellant discussed the
actual incident, his employment con- tract would not be renewed and he
would have problems  during the remainder of his existing contract.
Appellant took  O'Brien's threats seriously, and refrained from
mentioning  the incident. But O'Brien often recounted the "official
ver- sion," and when appellant was asked for his account by a co-
worker in O'Brien's presence, he disputed the "official ver- sion."
O'Brien warned appellant not to make such a mistake  again.


Soon thereafter, Currier encountered one of the "problems"  that
O'Brien had promised. At a workplace social event,  appellant had a
heated discussion with a female co-worker  about the definition of
sexual harassment. The following day,  he learned that O'Brien was
investigating the incident and  that he was suspected of sexual
harassment against the  female co-worker. Although the investigation
was without  basis in fact, he received a termination letter from
O'Brien on  May 14, 1996. He viewed this accusation as a pretext for 
retaliating against him because of his earlier opposition to 
O'Brien's sexual harassment of him.


Less than a week after receiving O'Brien's termination  letter, Currier
met with Robert Gillette, appellee's Director of  Broadcasting and a
higher ranking management official than  O'Brien. Appellant told
Gillette that his previous encounters  with O'Brien made it impossible
for O'Brien to conduct a  neutral investigation of appellant's
asserted sexual harass- ment of the female co-worker. Gillette
promised to conduct a  second investigation that would be fair and
impartial, and  assured Currier that there would be "no final
determination"  regarding his employment status until that second


Appellant stopped coming to work after receiving his termi- nation
letter, and his contract expired by its terms on June  30, 1996. But
he did not give up his efforts to return to  appellee's employ.
Rather, he inquired several times about  the status of Gillette's
investigation. Shortly before Thanks-


giving 1996, he met with his former supervisor, Tom Morgan,  and
Gillette. Appellant was told that the investigation was  still
continuing and had not yet been concluded. Gillette  referred to
Morgan as appellant's present "boss" and said  that Morgan "will


Appellant filed an administrative complaint with the San  Francisco
office of the EEOC on March 28, 1997. The EEOC  issued a notice of
right to sue, and appellant brought suit  against appellee in the
district court under Title VII, contend- ing, first, that O'Brien had
sexually harassed him, and second,  that she had retaliated against
him for opposing her advances  by terminating his employment. Appellee
moved to dismiss  the complaint, or in the alternative for summary
judgment, on  the ground that appellant had not filed his EEOC
complaint  in the time required by 42 U.S.C. s 2000e-5(e)(1) (1994). 
Appellant argued in opposition that it was improper to start  the
clock when he received the termination letter because  that
termination decision was not a final decision. Alterna- tively, he
argued that one of appellee's officials had misled  him into believing
that he would be rehired, and therefore  that appellee should be
equitably estopped from asserting the  statutory deadline. The
district court disagreed and granted  summary judgment in favor of


II.


42 U.S.C. s 2000e-5(e)(1) requires that "[a] charge ...  shall be filed
[with the EEOC] within one hundred and eighty  days after the alleged
unlawful unemployment practice oc- curred."2 Only after exhausting
this administrative remedy  can an aggrieved person bring suit in
district court. Jarrell  v. United States Postal Serv., 753 F.2d 1088,
1091 (D.C. Cir. 




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n 2 A three-hundred-day time limit applies when the aggrieved  person
has initially instituted proceedings with a state or local  agency
with authority to grant or seek relief from the unlawful  practice.
See 42 U.S.C. s 2000e-5(e)(1). The district court con- cluded that
this longer time limit did not apply to appellant, because  appellant
never instituted proceedings with the District of Columbia  Office of
Human Rights and because that office would not have had 


1985) (citing Brown v. General Servs. Admin., 425 U.S. 820,  832-33
(1976)). Here, the parties agree that appellant filed  his EEOC
complaint on March 28, 1997. For appellant's  EEOC complaint to have
been timely, the precise " 'unlawful  employment practice' of which he
complains," Delaware State  College v. Ricks, 449 U.S. 250, 257
(1980), must have occurred  within 180 days of his EEOC filing, i.e.,
on or after Septem- ber 29, 1996.


The parties disagree on when the unlawful employment  practice
occurred, and thus on when the statutory clock  started ticking.
Appellee argues that we should count from  the date appellant received
his termination letter, May 14,  1996; thus measured, appellant did
not file his EEOC com- plaint for 328 days, which is too late.
Appellant, while not  offering a specific starting date, contends that
the clock did  not start ticking until long after May 14, 1996,
because the  May 14 termination decision was not yet a final decision.
 Alternatively, he argues that appellee's manager's misleading 
assurances of reinstatement should equitably estop appellee  from
asserting the statutory filing deadline.3 Under either of  appellant's
approaches, of course, he would not be deemed to  have failed to




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n subject matter jurisdiction over his charge in any event. Appellant 
does not challenge these conclusions on appeal.


3 Appellant argues in his reply brief that appellee waived its right 
to assert the statute of limitations by raising that defense in its
pre- answer motion rather than in its answer--which has yet to be
filed.  This argument could not prevail because appellant asserted it
for  the first time on appeal. See Singleton v. Wulff, 428 U.S. 106,
119  (1976). In any event, it is without merit given our recent
decision  in Smith-Haynie v. District of Columbia, 155 F.3d 575, 578
(D.C.  Cir. 1998), where we held that "an affirmative defense may be 
raised by pre-answer motion under Rule 12(b) when the facts that  give
rise to the defense are clear from the face of the complaint."


4 Appellant focuses on the equitable estoppel argument in his  brief
and does not clearly articulate the finality argument as a  separate
issue. For ease of analysis, we treat the issues separately.


A.


We begin with the question of when (if ever) appellant had  notice that
the termination decision was final so as to start  the clock on the
EEOC filing deadline. See Ricks, 449 U.S.  at 261 (holding that the
starting point for the deadline occurs  when plaintiff has notice of
an official, i.e., not "tentative,"  decision). The parties agree that
appellant received the  termination letter from O'Brien on May 14,
1996,5 and that  O'Brien had the authority to fire him.


But were the circumstances such that O'Brien's decision  was not
actually final? Appellant claims that Gillette, a  manager directly
superior to O'Brien in appellee's organiza- tional hierarchy, assured
him less than a week after May 14  that O'Brien's decision was not a
"final determination." Gil- lette is claimed to have again told
Currier around Thanksgiv- ing that the investigation was still
ongoing; Currier was not  told that Gillette's investigation had
concluded by the time he  filed his charges with the EEOC's San
Francisco office the  following March. Appellee reminds us that in
Ricks, the  Supreme Court was careful to point out that an employer
that  expresses an "official position" and simultaneously "indi-
cate[s] a willingness to change its [official position]" based on  the
outcome of a pending grievance proceeding does not  thereby render
that "official position" a "tentative" decision.  Ricks, 449 U.S. at
261. And appellee refers us to our recent  warning that "a plaintiff
[may not] avoid the holding in Ricks  simply by labeling the final
decision 'preliminary' and proce- dures to review that decision an
'integral part' of the decision  process rather than collateral review
of the final decision."  Harris v. Ladner, 127 F.3d 1121, 1125 (D.C.




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n 5 That appellant's six-month contract expired by its own terms on 
June 30, 1996 does not have any relevance for the start date  because
appellant does not allege any continuing violation between  May 14,
1996 and June 30, 1996. See Ricks, 449 U.S. at 257 ("Mere  continuity
of employment, without more, is insufficient to prolong  the life of a
cause of action for employment discrimination.").


It is true that the reconsideration of Currier's termination  would
not alone render the initial decision "preliminary"  rather than
"final." But we think appellant points to more  than mere
reconsideration in his effort to identify a later  starting date for
the statutory clock. He claims that a  supervisor of the initial
decision-maker informed him shortly  after that initial decision that
"there would be no final  determination ... until the conclusion of
his investigation."  In other words, an authoritative voice (Gillette)
expressly  disavowed the finality of the initial determination,6 which
 implies a later starting date--though it remains unclear ex- actly
when the decision became final--that could bring appel- lant's EEOC
complaint within the statutory time limit.  Whether Gillette did
indeed make such an assurance and  whether, if he did, it was true,
may well be contested.7 At  this juncture, however, appellant has
created a genuine issue  on this material fact. See Fed. R. Civ. P.
56(c); Anderson v.  Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).




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n 6 We note that to our knowledge appellee did not have in place a 
formal direct or collateral review procedure for personnel decisions. 
Cf. Harris, 127 F.3d at 1125 (distinguishing Ricks on the ground  that
the formal reconsideration process in Ricks resembled collater- al
review rather than direct review). In such a situation, it seems 
appropriate to put stock in a manager's characterization of the 
decisionmaking process.


7 If Gillette's description of O'Brien's decision as non-final were a 
falsehood, appellee might be equitably estopped, see Part II.B infra, 
from asserting Title VII's EEOC filing deadline as an affirmative 
defense. Cf. Ricks, 449 U.S. at 261 (holding that an employer's  offer
to reconsider a final decision does not toll the limitations  period
as a matter of equity, but making no mention of the  possibility that
a false offer could equitably estop the employer). If  appellant fails
on remand to prove the facts underlying his finality  argument, he
still may attempt to prove the facts underlying his  equitable
estoppel argument under our alternative holding in Part  II.B infra.


B.


Even if we viewed the May 14, 1996 letter as a final  decision that
started the statutory clock, we would still con- clude that the
district court improperly granted summary  judgment in favor of
appellee because appellant has pointed  to sufficient facts in his
affidavit to create a genuine issue as  to whether equitable
principles should toll the EEOC filing  deadline.


Title VII's time limit on filing a complaint with the EEOC  is not
jurisdictional and is subject to "estoppel[ ] and equita- ble
tolling." Zipes v. Trans World Airlines, Inc., 455 U.S.  385, 393
(1982). Both equitable estoppel and equitable tolling  operate, in a
practical sense, to toll a limitations period.  Although the Supreme
Court and our court have occasionally  conflated the two doctrines,
see, e.g., Irwin v. Department of  Veterans Affairs, 498 U.S. 89, 96
(1990); Bowden v. United  States, 106 F.3d 433, 438 (D.C. Cir. 1997),
they have distinct  criteria. Whereas equitable tolling allows a
plaintiff to avoid  the bar of the limitations period if despite all
due diligence he  is unable to obtain vital information bearing on the
existence  of his claim, Smith-Haynie v. District of Columbia, 155
F.3d  575, 579 (D.C. Cir. 1998), equitable estoppel in the statute of 
limitations context prevents a defendant from asserting un- timeliness
where the defendant has taken active steps to  prevent the plaintiff
from litigating in time, id. at 580; see  also Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450-52  (7th Cir. 1990). Here, we
treat appellant as asserting the  latter.


Again we begin with Ricks. There the Supreme Court  reaffirmed that
"the pendency of a grievance, or some other  method of collateral
review of an employment decision, does  not toll the running of the
limitations periods." Ricks, 449  U.S. at 261 (citing International
Union of Elec., Radio, and  Mach. Workers v. Robbins & Myers, Inc.,
429 U.S. 229, 236- 40 (1976)). Appellee contends that because
appellant's equi- table estoppel argument rests only on an allegation
that the  termination decision was being reconsidered, it is
foreclosed  by Ricks. If that were all Currier alleges, we would


In that regard, Gillette's statement promising appellant a  "fair and
impartial investigation," standing alone, provides  inadequate support
for appellant's equitable estoppel theory.  Similarly insufficient, by
themselves, are Morgan's instruction  to "hang tight" and his
assurance that "it's not over yet."


We think, however, that an employer's affirmatively mis- leading
statements that a grievance will be resolved in the  employee's favor
can establish an equitable estoppel. See  Miranda v. B & B Cash
Grocery Store, Inc., 975 F.2d 1518,  1532 (11th Cir. 1992) (sex
discrimination plaintiff was given  "repeated assurances" that her
salary would be raised to the  level that other workers were
receiving); Coke v. General  Adjustment Bureau, 640 F.2d 584, 595 (5th
Cir. 1981) (em- ployer misrepresented to employee that it would
reinstate  him). Under those circumstances, an employee understand-
ably would be reluctant to file a complaint with the EEOC for  fear he
would jeopardize his chances to gain relief voluntarily.


Appellant has identified statements made by one of his  supervisors
from which he concluded not only that he was  being reconsidered, but
that he would be reinstated. Specifi- cally, he asserted the following
in his affidavit, describing a  meeting shortly before Thanksgiving
1996, "Mr. Gillette re- ferred to Mr. Morgan as 'my boss.' Mr.
Gillette said that Mr.  Morgan was my boss and would always be my
boss," which,  in context, could be understood to mean that Currier
would  be triumphant. To be sure, it is a bit of a stretch for 
appellant to have inferred from these statements that appel- lee
intended to continue to employ him. But we cannot say,  at the summary
judgment stage, that no reasonable factfinder  could find that this
inference was plausible and that appellant  made the inference at the
time. See Anderson, 477 U.S. at  249.8




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n 8 Although appellant's contract would have expired by its terms  on
June 30, 1996 wholly apart from the May 14, 1996 termination 
decision, appellant had earlier been involved in negotiations with 
several of appellee's managers regarding a contract renewal. Ap-
pellant thus might reasonably have inferred from Gillette's state-


III.


Thus far we have discussed only appellant's retaliation  claim.
Appellant also asserted in his complaint a claim of  hostile work
environment sexual harassment, and did not  carefully explain to the
district court or to us how the finality  and equitable estoppel
arguments were applicable to his  hostile environment theory.


Here we can be brief. As with his retaliation claim,  appellant was
obliged to file an EEOC complaint within 180  days of the "[precise]
unlawful employment practice," Ricks,  449 U.S. at 257, of which he
complains. The last day on  which he could have been subjected to
hostile environment  sexual harassment was his last day at work;
thereafter he  was not in a work environment, let alone a hostile one.
See  Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993); 
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64-67  (1986).
Giving appellant the factual benefit of the doubt, the  district court
assumed his last day of work to be the day his  contract expired, June
30, 1996. Counting from that date,  appellant's EEOC complaint was
filed 281 days later on  March 28, 1997, which is too late.


Appellant's finality and equitable estoppel arguments are  inapposite
to his hostile environment claim. Gillette's assur- ance that
O'Brien's termination decision was not a final  determination goes
only to the allegedly retaliatory termi- nation--the hostile
environment occurred, and appellant had  notice of it, when he was at
work. Similarly, Gillette's  misleadingly optimistic statements
suggesting that appellant  would be rehired could not have been
misleading as to  appellee's position toward the hostile environment
allegedly  created by O'Brien. Those statements could only lull appel-
lant into believing that his retaliation claim would be remed- ied,
not into believing that the already experienced harm from  the
episodes of hostile environment sexual harassment would  somehow be
cured. Accordingly, the district court correctly 




__________

n ments that, in addition to the grievance being resolved in his favor,
 a new contract was on the horizon.


granted summary judgment in favor of appellee on the hostile 
environment claim.


* * * *


For the foregoing reasons, the district court's decision to  grant
summary judgment to appellee is reversed on appel- lant's retaliation
claim and affirmed on appellant's hostile  work environment claim.


So ordered.