1District Judge of the Western District of Louisiana,

sitting by designation.

United States Court of Appeals,

Fifth Circuit.

No. 88–1712.

Norman R. WOOD, Jr., Plaintiff–Appellant,

v.

UNITED STATES POSTAL SERVICE, et al., Defendants, United States

Postal Service, Defendant–Appellee.

March 30, 1992.

Appeal from the United States District Court for the Western

District of Texas.

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District

Judge.1

LITTLE, District Judge:

Finding mortal impediments in Wood's suit contesting his

discharge as a postal letter carrier, the district court dismissed

his action. Wood appealed. We reverse and remand with

instructions.

The U.S. Postal Service employed Norman R. Wood, Jr. as a

letter carrier. He was discharged effective 19 January 1985.

Feeling that his discharge was due to impermissible discrimination,

Wood pursued counseling with an EEO employee, Carlos E. Morris.

Wood's desired relief from the administrative channels of the

EEO was not forthcoming. A formal complaint with the EEOC was

filed on 29 March 1985. The complaint was denied by letter dated

11 February 1986. In the letter Wood was advised that he had
 

2Technically, Morris remains as a named party defendant,

although the transcript clearly reveals a contrary intention by

counsel for the plaintiff. When the district judge asked the

plaintiff's attorney if Morris, an innocent party, could be

dismissed, the attorney responded:

That's right, your honor, absolutely your honor.

The court's judgment of 15 August 1988 finds that

Morris is immune from suit. No issue is taken with that

portion of the judgment by appellant.

thirty days from receipt of the letter to file a civil action in

the appropriate United States District Court.

It is uncontested that the complaint filed by Wood was filed

in a proper venue within thirty days of his receipt of the right to

sue letter. That filing occurred on 14 March 1986 in the El Paso

division of the Western District of Texas. In the style of his pro

se prepared petition, Wood names as defendants the "United States

Postal Service and Carlos E. Morris, the EEO Counselor." 2

Paragraph 4 of the petition describes the defendants thusly:

Defendant, UNITED STATES POSTAL SERVICE is an employer within

the meaning of 42 U.S.C. 2000e(b). It can be served with

process through its local receiver, POSTMASTER EMILIO GARCIA,

UNITED STATES POST OFFICE, 5300 E. PAISANO, EL PASO, TEXAS

79910, and CARLOS E. MORRIS, EEO COUNSELOR, UNITED STATES POST

OFFICE, 5300 E. PAISANO ST., EL PASO, TEXAS 79910.

The entire chronology of the record subsequent to the March

filing need not be reproduced. There are uncontested events

however that merit highlighting.

Accompanied by his original petition, Wood's application to

proceed in forma pauperis was filed 14 March 1986. The application

was granted on 24 March 1986. The U.S. Marshal served Emilio
Garcia, the El Paso Postmaster, and the U.S. Attorney for the

Western District of Texas on 1 April 1986. Wood filed a motion for

appointment of counsel on 2 April 1986. On 7 April 1986, the

Attorney General, Edwin Meese III, was served by certified mail.

The U.S. Attorney filed a motion to dismiss, or in the

alternative, a motion for summary judgment on 2 June 1986. There

are two prongs to the motion. First, the Government argued that

the trial court had no jurisdiction over the postal service as the

only proper defendant is the head of that agency in his official

capacity. 42 U.S.C. § 2000e–16. In other words, the plaintiff

failed to name and serve the proper defendant within thirty days of

receipt of the right to sue letter. Even an amendment to the

complaint would not eradicate that defect, or so the U.S. Attorney

argued. Second, the U.S. Attorney claimed that Wood failed to

exhaust his administrative remedies. The government observed that

28 C.F.R. 1613.214(a)(1)(i) requires that such a complaint must be

brought to the attention of an EEO counselor within thirty days of

the alleged discrimination. The appellee, in its summary judgment

motion, asserts that Wood was effectively fired on 19 January 1985,

and did not communicate with an EEO counselor until 19 February,

1985, some thirty-one days after the discriminatory act.

The counter-argument tendered by lawyerless Wood was that the

thirty day right to sue letter advised him that a timely suit must

be filed within thirty days. According to Wood, suit was filed

within thirty days. The filing, when coupled with the reasons for
failure to serve timely the proper defendant, justify application

of the doctrine of equitable tolling. Wood also filed a motion to

amend his petition to name and serve the proper defendant, the U.S.

Postmaster. Moreover, Wood presented written argument and evidence

in opposition to the allegation that he failed to exhaust

administrative remedies.

Prior to oral argument on the motion, Wood engaged the

services of an attorney. Finding that the court had no

jurisdiction and that Wood had not exhausted his administrative

remedies, the court ordered dismissal of the suit.

Wood's appeal to this court resulted in an affirmation without

opinion. Wood v. U.S. Post Office, 873 F.2d 295 (5th Cir.1989).

The Supreme Court granted Wood's writ for certiorari and vacated

our decision and remanded the case for further consideration in

light of Irwin v. Veterans Administration, 498 U.S. ––––, 111 S.Ct.

453, 112 L.Ed.2d 435 (1990); Wood v. U.S. Postal Service, ––– U.S.

––––, 111 S.Ct. 1575, 113 L.Ed.2d 641 (1991).

EQUITABLE TOLLING

In Irwin, a fired VA employee and his attorney were mailed

notices from the EEOC denying Irwin's claim for wrongful discharge.

The letter was received in Irwin's attorney's office on 23 March.

Irwin received the letter on 7 April. Irwin's attorney was out of

the country and did not learn of the EEOC action until 10 April.
A complaint was filed in federal court on 6 May, forty-four days

after the notice was received at the attorney's office, but

twenty-nine days after the date on which Irwin received the letter.

Irwin argued that the thirty day period should run from the date he

received the letter and, if not, the statute should be subject to

the doctrine of equitable tolling.

The Supreme Court affirmed the dismissal of Irwin's suit, and

ruled that the thirty day period began to run from the date of

receipt by the person first to receive notice, in this case Irwin's

attorney. In so doing, however, the Supreme Court harmonized the

doctrine of tolling with waiver of sovereign immunity. The court

explains the possible expansion of the doctrine of waiver of

sovereign immunity with the following language:

Once Congress has made such a waiver, we think that making the

rule of equitable tolling applicable to suits against the

Government, in the same way that it is applicable to private

suits, amounts to little, if any, broadening of the

congressional waiver. Such a principle is likely to be a

realistic assessment of legislative intent as well as a

practically useful principle of interpretation. We therefore

hold that the same rebuttable presumption of equitable tolling

applicable to suits against private defendants should also

apply to suits against the United States.... Because the time

limits imposed by Congress in a suit against the Government

involve a waiver of sovereign immunity, it is evident that no

more favorable tolling doctrine may be employed against the

Government than is employed in suits between private

litigants.... But the principles of equitable tolling

described above do not extend to what is at best a garden

variety claim of excusable neglect.

Irwin, 498 U.S. –––– at ––––, 111 S.Ct. 453 at 457–58, 112 L.Ed.2d

435 at 444.

Appellant argues as follows:
The appellant pursued his case diligently but because of the

delay (that was caused in processing his application to

proceed in forma pauperis) and the fact that he did not have

the assistance of legal counsel, the requirements of

completing all filing and service within the thirty day

limitation period could not be met.

The facts and circumstances supporting Wood's assertion of

equitable tolling have never been considered by the district court.

In light of the mandate in Irwin, we remand to the district court

to determine if Wood's culpa is excused under equitable tolling

principles.

SUMMARY JUDGMENT

A grant of summary judgment is reviewed de novo by this court

applying the same substantive test as the district court. General

Electric v. Southeastern Health Care, 950 F.2d 944, 948 (5th

Cir.1991), citing with approval Walker v. Sears, Roebuck and

Company, 853 F.2d 355, 358 (5th Cir.1988); Resolution Trust Corp.

v. McCrory, 951 F.2d 68, 71 (5th Cir.1992), citing with approval

FDIC v. Hamilton, 939 F.2d 1225, 1227 (5th Cir.1991). Rule 56(c)

of the Federal Rules of Civil Procedure permits the granting of a

summary judgment motion if, considering the pleadings and materials

submitted in a light most favorable to the non-moving party, they

"show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law."

Fed.R.Civ.P. 56(c)

Here, EEO agent Morris stated, by affidavit, that Wood had not

made a communication with Morris within thirty days of the
effective date of Wood's removal from employment. The affidavit

also states that a counseling report form filed by Morris, with the

notation that the request for counseling had been submitted timely,

was made in error. Wood attaches to his opposition a copy of a

letter written to the EEOC wherein Wood states that he communicated

with Morris on 5 February 1985, well within the thirty day period.

Wood also presented a copy of a letter to the EEOC written by the

President of Wood's representative union, which complained about

Morris' methodology in logging the date of initial communications.

In analyzing a summary judgment motion, we do not weigh the

evidence or make credibility determinations. We review the record

and our review of the record in this case leads us to the

conclusion that there is conflicting factual evidence on the

critical issue of the initial date of communication with the

counseling official. The conflict here is of such import that if

this evidence were submitted to a fact finder, a favorable decision

to Wood might result.

For the foregoing reasons, the summary judgment granted by the

district court on the issue of plaintiff's failure to sue or serve

the proper defendant is REVERSED and REMANDED for further

consideration in light of Irwin v. Department of Veteran's Affairs,

498 U.S. ––––, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). The summary

judgment granted by the district court on the issue of plaintiff's

failure to exhaust administrative remedies is REVERSED and REMANDED

for resolution of the factual dispute.