The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10393 FEBRUARY 3, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00613-CV-AR-S
MARY E. SMITH,
Plaintiff-Appellant,
versus
JOHN E. POTTER,
Postmaster General, United States,
Postal Service,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 3, 2009)
Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Mary E. Smith appeals the district court’s order granting
summary judgment in favor of Defendant-Appellee John E. Potter, in his
representative capacity as Postmaster General of the United States Postal Service
(“the Service”). Smith argues that the district court erred in holding that she failed
to timely exhaust her administrative remedies and was not entitled to equitable
tolling.
I. Facts
Smith, an employee of the Service since 1981, was assigned to a position in
the Service’s Customer Relations Department in Birmingham, Alabama in 1997.
April Williams, the Customer Relations Coordinator (“CRC”) and Smith’s
supervisor, was promoted to a new position in April 2003. Notice of the vacant
CRC position was posted on October 28, 2003 and sixteen employees, including
Smith, applied for this position. A recommendation committee was established to
review the applications and to submit a list of the “three best qualified” candidates
to Paul T. Barrett, Postmaster of the Birmingham Post Office. Barrett was to select
the new CRC from that list.
The committee interviewed the top eight applicants in February 2004 and
submitted a list of the final three applicants to Barrett. Smith’s name was not
included in the final three. According to Smith, in late February she received
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notice that she was not selected for the position. Smith alleges that she thereafter
contacted the members of the recommendation committee to inquire as to why her
name was not given to Barrett and each told her she was not selected because she
was never “detailed”1 to CRC position. Barrett had detailed Kristy White, who is
approximately twenty years younger than Smith, to the CRC position from April
through November 2003. Smith was later detailed to the CRC position after she
had received her rejection for the permanent position. According to Smith, the
committee members told her that had she been detailed to the CRC position prior
to their review of her application, her name would have been among the three
submitted to Barrett.
Smith alleges that she then had a conversation with Barrett on July 16, in
which Barrett told her that White would be the new CRC because she was “young
and could grow with the job.” Barrett allegedly expressed his disappointment with
Smith for questioning his decision and gave her three choices: (1) continue
working in her current position; (2) retire because she had reached age fifty-five, as
required for eligibility; or (3) look for a new assignment outside of Barrett’s
department. Barrett’s selection of White received official approval on August 5,
2004, and on August 9, Smith contacted an Equal Employment Opportunity
1
A “detail” is a temporary assignment into a position that is not the individual’s
assignment of record.
3
(“EEO”) counselor about her non-referral and non-selection.
Smith thereafter filed suit in district court under the Age Discrimination
Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq., alleging that her non-
selection for the CRC position was based on her age.2 Following discovery, the
Service moved for summary judgment and the matter was referred to a magistrate
judge. The magistrate judge recommended summary judgment in favor of the
Service. The magistrate judge noted that Smith was required to timely exhaust her
administrative remedies, which includes filing an EEO claim “within 45 days of
the effective date of [the personnel] action,” prior to filing an ADEA claim.
29 C.F.R. § 1614.105(a)(1). The magistrate judge concluded that this “45-day time
limit began to run from the moment that Smith learned that had she been detailed
to the position of Customer Relations Coordinator she would have been one of the
three final candidates.” The magistrate judge reasoned that the 45-day period
began to run in March 2004 because “at this time Smith [] knew or reasonably
should have known that she had been discriminated against, since she knew that
White was twenty years younger and White had been detailed to the Customer
Relations Coordinator position for months leading up to the formal posting of the
2
Smith also brought a claim alleging that the decision not to promote her was made in
retaliation for a prior suit that she filed against the Service. On Smith’s motion, the district court
later dismissed the retaliation claim.
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position.” The magistrate judge further concluded that equitable tolling of the 45-
day time period was inappropriate under the circumstances because Smith did not
promptly contact an EEO counselor, despite personally knowing of the 45-day
requirement and having the benefit of counsel.
Smith did not object to the magistrate judge’s recommendation. The district
court adopted the recommendation and granted summary judgment in favor of the
Service. This appeal followed.
II. Discussion
A. Standard of review
We must first determine the appropriate scope of review of the magistrate
judge’s findings, in light of Smith’s failure to file a timely objection to the report
and recommendation with the district court. Parties to civil cases have ten days
from being served with a copy of the magistrate judge’s recommended disposition
to “serve and file specific written objections to the proposed findings and
recommendations.” Fed. R. Civ. P. 72(b)(2). This court has held that the failure of
a party to object to the magistrate judge’s report precludes review of findings of
fact except on grounds of plain error or manifest injustice, but does not limit
review of legal conclusions. Resolution Trust Corp. v. Hallmark Builders, Inc.,
996 F.2d 1144, 1149 (11th Cir. 1993). This rule only applies, however, in cases in
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which the magistrate judge has provided notice of these preclusive consequences.
Id.
Although Smith did not object to the magistrate judge’s factual findings,
there is no evidence in the report itself or elsewhere in the record of notice of these
preclusive consequences. In considering this motion for summary judgment, this
court will therefore employ de novo review to both the factual and legal
conclusions of the magistrate judge. See Arrington v. Cobb County, 139 F.3d 865,
871 (11th Cir. 1998). This court examines the “decision to grant or deny equitable
relief for abuse of discretion, reviewing underlying questions of law de novo and
findings of fact upon which the decision to grant equitable relief was made under
the clearly erroneous standard.” Atlanta Journal & Constitution v. City of Atlanta
Dep’t of Aviation, 442 F.3d 1283, 1287 (11th Cir. 2006).
B. Exhaustion requirement
The ADEA, as amended, makes it unlawful for an employer to “discriminate
against any individual with respect to [her] compensation, terms, conditions, or
privileges of employment because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). “The ADEA requires that an individual exhaust available
administrative remedies by filing a charge of unlawful discrimination with the
EEOC before filing a lawsuit.” Bost v. Fed. Express Corp., 372 F.3d 1233, 1238
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(11th Cir. 2004). The Supreme Court has interpreted failure to promote as a
“discrete act” of discrimination that triggers the exhaustion period. Ledbetter v.
Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, __, 127 S.Ct. 2162, 2169 (2007).
As such, this requires a federal employee who alleges that she is a victim of
discrimination to initiate contact with an EEO counselor “within 45 days of the
effective date of [the personnel] action.” 29 C.F.R. § 1614.105(a)(1). The
exhaustion period begins once the employee receives “unequivocal communication
of the adverse employment decision.” Wright v. AmSouth Bancorporation,
320 F.3d 1198, 1202 (11th Cir. 2003).
The magistrate judge found that Smith was notified by letter on February 23,
2004 that she would not receive the CRC position. Smith does not argue to the
contrary. As such, Smith’s communication with an EEO counselor on August 9,
2004 was not timely as it was initiated more than 45 days after she received notice
that she would not be named the new CRC.
The exhaustion period, however, is not a jurisdictional prerequisite, but
rather “a requirement that, like a statute of limitations, is subject to waiver,
estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982). Under equitable tolling,3 “a limitations period does not start to run
3
The magistrate judge noted that Smith did “not necessarily argue equitably tolling,” but
nonetheless “construed her argument broadly to include this assertion” and analyzed this issue.
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until the facts which would support a charge of discrimination are apparent or
should be apparent to a person with a reasonably prudent regard for his rights.”
Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994). The
purpose of this rule is to prevent employers from escaping ADEA liability by
giving victims pretextual, nondiscriminatory reasons for the employer’s action.
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975).4
This court has explained that equitable tolling is appropriate until the point at
which the plaintiff has “knowledge of facts sufficient to support a prima facie case
of age discrimination.” Sturniolo, 15 F.3d at 1026. To establish a prima facie case
of age discrimination under the ADEA, the plaintiff must demonstrate: “(1) that
she was a member of the protected group of persons between the ages of forty and
seventy; (2) that she was subject to adverse employment action; (3) that a
substantially younger person filled the position that she sought or from which she
was discharged; and (4) that she was qualified to do the job for which she was
rejected.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1359
(11th Cir. 1999).
Smith argued in her submissions to the district court and this court that she did not know and
reasonably could not have known that she was a victim of discrimination until July 16, 2004.
This argument supports equitable tolling. We thus conclude that the issue of equitable tolling
was sufficiently preserved for appellate review.
4
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (accepting as binding
precedent all Fifth Circuit cases decided before October 1, 1981).
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The magistrate judge concluded that after Smith spoke to members of the
recommendation committee in March 2004 and was told that her rejection was
based on the fact that she was never detailed to the CRC position, “Smith knew or
reasonably should have known that she had been discriminated against, since she
knew that White was twenty years younger and White had been detailed to the
Customer Relations Coordinator position for months leading up to the formal
posting of the position.” This, however, is insufficient to meet the third
requirement for a prima facie case of age discrimination because a “mere suspicion
of age discrimination, unsupported by personal knowledge,” is not enough to
establish a prima facie under the ADEA. Sturniolo, 15 F.3d at 1026. The fact that
White was substantially younger and had been detailed to the position did not show
that “a substantially younger person filled the position that she sought.” Damon,
196 F.3d at 1359 (emphasis added). Even if Smith thought that White was the
frontrunner for the CRC position because she had been detailed to it, Smith did not
know that White would actually receive the permanent position.
The magistrate judge found that it was not until the July 16, 2004 meeting
that Smith was informed that White would be awarded the position. In light of this
finding, we conclude that the exhaustion period should have been equitably tolled
until July 16, 2004, because that was the point at which Smith had sufficient
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information to establish a prima facie case of age discrimination under the ADEA.
We therefore vacate the entry of summary judgment in favor of the Service and
remand the case to the district court for further proceedings consistent with this
opinion.
VACATED AND REMANDED.
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