Larry Cherosky Thomas Jennings Anthony Clemons Vincent Faini v. William J. Henderson, Postmaster General in His Official Capacity

Citations: 330 F.3d 1243; 14 Am. Disabilities Cas. (BNA) 673; 2003 Cal. Daily Op. Serv. 4726; 2003 Daily Journal DAR 6028; 2003 U.S. App. LEXIS 11225; 2003 WL 21286574Docket: 01-35254

Court: Court of Appeals for the Ninth Circuit; June 5, 2003; Federal Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The case involves four plaintiffs—Larry Cherosky, Thomas Jennings, Anthony Clemons, and Vincent Faini—who were employees of the United States Postal Service (USPS) and alleged that their respiratory issues arose after high-speed mail sorting machines were introduced in their workplace. They requested permission to use respirators in October 1994, which the USPS denied based on a policy that allowed respirators only when air contaminants exceeded Occupational Safety and Health Act (OSHA) limits. The policy is rooted in OSHA regulations, which stipulate that respirators can only be used when necessary to prevent atmospheric contamination. The employees' union filed grievances in 1994 and 1997 regarding the respirator denials, and after dissatisfaction with the union's actions, the employees contacted the Equal Employment Opportunity Commission (EEOC) in August 1997 and subsequently filed complaints in September and October 1997. In 1998, they initiated legal action, claiming the USPS's denial of respirator requests violated the Rehabilitation Act of 1973. The appeal examines the implications of the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, which restricts recovery for employment discrimination claims based on actions outside the statutory filing period, concluding that the doctrine precludes recovery for the employees' claims related to earlier employment decisions made under the alleged discriminatory policy.

The district court granted summary judgment to the Postal Service, ruling that the Employees' claims were time barred under 29 C.F.R. 1614.105(a)(1), which mandates timely consultation with an EEOC Counselor before filing a suit. To bring a claim under the Rehabilitation Act, federal employees must exhaust administrative remedies, including consulting an EEOC Counselor within 45 days of the alleged discriminatory act or personnel action. The Employees failed to contact an EEOC officer within this timeframe following the denial of their requests to wear respirators and acknowledged that their claims were based on conduct outside the 45-day limit. 

The Employees argued their claims were timely under the continuing violations doctrine, asserting that their situation stemmed from an ongoing discriminatory policy. However, the Supreme Court's ruling in Morgan significantly narrowed the application of this doctrine, emphasizing that discrete discriminatory acts are not actionable if they fall outside the filing period. The Court clarified that each discrete act resets the filing clock, while claims based on hostile work environment can be timely if at least one act occurred within the limitations period. The Employees recognized that their claims were untimely under both standards, as no discriminatory acts took place within the required timeframe. They further attempted to frame their allegations as a pattern-or-practice claim, but the court noted that the question of timely filing for such claims was not addressed in this context.

Doubts are raised regarding the applicability of the "pattern-or-practice" analysis to the Postal Service's conduct, as the term is generally understood to refer to widespread discriminatory practices rather than sporadic acts. The Supreme Court clarifies that such claims must demonstrate pervasive discrimination rather than isolated incidents. The Employees have not provided evidence of systemic discrimination against employees with disabilities or regarding respirator requests but instead challenge specific decisions denying their accommodation requests based on individual circumstances. The district court emphasized that the core of the complaint pertains to these individualized decisions rather than a general discriminatory policy. As such, these actions are considered discrete acts rather than a systemic pattern of discrimination, which does not extend the statutory limitations period as outlined in 29 C.F.R. 1614.105(a)(1). Each instance of alleged discrimination is treated as a separate actionable event, requiring claims to be filed within the established time limits. This interpretation aligns with precedent from cases like Bazemore v. Friday, where the accrual of discrimination claims is linked to individual instances of discrimination, and Elmenayer v. ABF Freight Sys., which considered similar issues regarding accommodation requests.

Elmenayer did not file a charge with the EEOC within the required timeframe, arguing that his claims should still be considered timely due to a discriminatory policy preventing him from observing his religious requirements. The Second Circuit rejected this argument, asserting that an employer's denial of a requested accommodation is a "discrete act," which must be addressed within the statutory period. The court clarified that the ongoing impact of such denials does not constitute a continuing violation, similar to the denial of promotions or transfers, which must also be challenged within the limitations period. The ruling emphasized that claims based on a discriminatory policy do not allow for bypassing timely filing requirements. The court concluded that the Employees could not contest actions taken before the limitations period by merely alleging a discriminatory motive. Each denial of their requests for respirators was classified as a discrete act of discrimination, rendering their claims time-barred due to the lack of timely contact with a counselor following the denials. The court noted that if future requests lead to new denials, the limitations period would reset. The decision was affirmed, with additional notes on the air quality at the facility and the district court's ruling on punitive damages, which was not addressed due to the limitations issue. The analysis of the continuing violations doctrine was affirmed as applicable across various civil rights laws, not limited to Title VII.