Carrizal v. Brennan

United States Court of Appeals
for the Fifth Circuit

No. 20-50333
Summary Calendar

Wendy Carrizal,

Plaintiff—Appellant,

versus

Megan J. Brennan, Postmaster General of the U.S.
Postal Service,

Defendant—Appellee.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CV-319

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
In this employment discrimination case, the district court granted
summary judgment in favor of Defendant-Appellee Megan J. Brennan,
Postmaster General of the United States Postal Service (“Postmaster”). The

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020

Lyle W. Cayce
Clerk

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2
district court then denied Plaintiff-Appellant Wendy Carrizal’s motion to
alter or amend the court’s order. Carrizal appeals herein. We AFFIRM.
I. Factual and Procedural History
Carrizal alleges that she experienced unlawful employment
discrimination and retaliation, including sexual harassment, during her
employment with the United States Postal Service. She filed an Equal
Employment Opportunity claim with the Postal Service, and an
administrative law judge granted summary judgment to the Postal Service.
On July 19, 2018, the Postal Service issued a final agency decision
implementing the administrative law judge’s grant of summary judgment and
mailed a Notice of Final Action (“NFA”) as required by 29 C.F.R. §
1614.110(a). Carrizal’s counsel states that the NFA was mailed to counsel’s
previous address, despite counsel having filed a change of address. Carrizal’s
counsel asserts that she not did not receive the final order until July 30, 2018,
via email, after sending an email on the same day stating that she was aware
her client had received the NFA. Carrizal brought the civil action underlying
this appeal on October 25, 2018, within 90 days of her counsel receiving the
notice. However, Carrizal did not bring her claim within 90 days of when she
received the NFA on July 23, 2018.
Upon considering the Postmaster’s motion for summary judgment,
the district court ruled that Carrizal’s claim had not been timely filed and
should therefore be dismissed. The district court noted that Carrizal did not
offer any facts to contradict her receipt of the NFA on July 23, 2018, and thus
was required to have filed her complaint by October 22, 2018. The district
court stated that “Fifth Circuit precedent is clear the Section 2000e–16(c)
period begins upon receipt by either counsel or claimant—whomever is
first.” (citing to Ringgold v. Nat’l Maint. Corp., 796 F.2d 769, 770 (5th Cir.
1986); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002)).

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Carrizal filed a motion for a new trial or to alter or amend the court’s
order granting summary judgment. In this motion, she argued that the district
court had decided the time limit issue in a manner inconsistent with Supreme
Court precedent. She also raised for the first time that 29 C.F.R. §
1614.605(d) required the 90-day limit to begin with her attorney’s receipt of
the NFA, or alternatively, equitable tolling should apply. The district court
denied the motion. Carrizal raises these same issues on appeal.
II. Standard of Review
“We review the district court’s grant of summary judgment de novo
and apply the same standard as the district court.” Martinez v. Tex. Workforce
Comm’n-Civil Rts. Div., 775 F.3d 685, 687 (5th Cir. 2014). A grant of
summary judgment is only proper if the movant shows that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” F
ED. R. CIV. P. 56(a). The denial of a motion to alter or
amend a judgment under F
ED. R. CIV. P. 59(e) is reviewed only for abuse of
discretion. Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).
III. Discussion
Carrizal first argues that under Irwin v. Dep’t of Veterans Affs., her
lawsuit was timely filed because it was filed within 90 days of her counsel’s
receipt of the NFA. 498 U.S. 89, 92–93 (1990). The district court disagreed,
stating that under Fifth Circuit precedent, the 90-day clock began with
Carrizal’s personal receipt of the NFA. We agree with the district court.
Under 42 U.S.C. § 2000e–16(c), a federal employee may file a civil
action “within 90 days of receipt of notice of final action taken by a
department, agency, or unit[.]” The Supreme Court has remarked that “§
2000e–16(c) is a condition to the waiver of sovereign immunity and thus
must be strictly construed.” Irwin, 498 U.S. at 94. In Irwin, a federal
employee and his attorney received the NFA on two different days, with the

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plaintiff receiving it after his counsel. Id. at 91. The Court rejected the
argument that the clock began to run when claimant received the notice,
stating it began with receipt of the notice by counsel. Id. at 92–93. However,
that case does not state that receipt by counsel is necessary to start the clock,
only that it is sufficient. Therefore, Irwin is aligned with Ringgold, which held
that “the 90-day period of limitation established by 42 U.S.C. § 2000e–
5(f)(1) begins to run on the date that the EEOC right-to-sue letter is delivered
to the offices of formally designated counsel or to the claimant.” 796 F.2d at
770. 42 U.S.C. § 2000e–5(f)(1) imposes a time limit for filing suit for non-
federal employees and Fifth Circuit precedent dictates that § 2000e–16(c)
should be viewed as analogous to § 2000e–5(f)(1). See Irwin v. Veterans
Admin., 874 F.2d 1092, 1094 (5th Cir. 1989), aff’d sub nom. Irwin v. Dep’t of
Veterans Affs., 498 U.S. 89 (1990) (“Having found the constructive notice
doctrine applicable under § 2000e–5(f)(1) in Ringgold, we see no reason to
believe Congress intended a different result in suits against the government
than in suits against private employers.”). Accordingly, the district court did
not err in holding that the 90-day clock started running when Carrizal
personally received the NFA.
Carrizal next argues that 29 C.F.R. § 1614.605(d), an Equal
Opportunity Employment Commission (“EEOC”) regulation, required the
district court to compute the 90-day deadline from her counsel’s receipt of
the NFA. The district court noted that this argument was also raised for the
first time in Carrizal’s Rule 59(e) motion. The district court briefly
considered the issue and rejected Carrizal’s position. We agree with the
district court that Carrizal’s position is untenable. 29 C.F.R. § 1614.605(d)
states in relevant part: “When the complainant designates an attorney
representative, service of all official correspondence shall be made on the
attorney and the complainant, but time frames for receipt of materials shall
be computed from the time of receipt by the attorney.” Other courts have

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rejected similar arguments to Carrizal’s, holding that § 1614.605(d) is
concerned with time frames solely in the EEOC administrative process. See
Rembisz v. Lew, 830 F.3d 681, 683 (6th Cir. 2016); Carter v. Potter, 258 F.
App’x 475, 478 (3d Cir. 2007); Harris v. Bodman, 538 F. Supp. 2d 78, 81
(D.D.C. 2008), aff’d, No. 08-5091, 2008 WL 5532102 (D.C. Cir. Aug. 27,
2008). We agree with the Third Circuit that “looking to the plain language
of § 1614.605 in its entirety, there is no evidence that the EEOC intended it
to govern the 90-day time frame for filing a civil action in a United States
District Court.” Carter, 258 F. App’x at 478. 29 C.F.R. § 1614.605(a) states
that the right to “be accompanied, represented, and advised by a
representative of complainant’s choice” is present at “[a]t any stage in the
processing of a complaint.” This indicates that the “time frames for receipt
of materials,” see § 1614.605(d), is only in the EEOC administrative context.
For this reason, we conclude that § 1614.605(d) does not require us to
calculate the 90-day time frame from the date Carrizal’s counsel received the
NFA.
Finally, Carrizal argues that she is eligible for equitable tolling. The
district court noted that Carrizal requested equitable tolling for the first time
in her Rule 59(e) motion and refused to consider her argument. The district
court stated that Rule 59(e) motions are not the appropriate time to raise new
arguments. We agree. Fifth Circuit precedent is clear that “[m]otions for
a new trial or to alter or amend a judgment must clearly establish either a
manifest error of law or fact or must present newly discovered evidence.
These motions cannot be used to raise arguments which could, and should,
have been made before the judgment issued.” Simon v. United States, 891
F.2d 1154, 1159 (5th Cir. 1990) (citing Federal Deposit Ins. Corp. v. Meyer, 781
F.2d 1260, 1268 (7th Cir. 1986)). The district court acted within its discretion
to determine that Carrizal waived her ability to make this argument.

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IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
judgment.