Opinion · Court of Appeals for the Fifth Circuit
Bickham v. Miller
Bickham v. Miller, 584 F.2d 736 (5th Cir. 1978)
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 1978-11-22
- Topic
- litigation
How later courts describe this case
- reviewing district court finding regarding equitable tolling under clearly erroneous standard
Citator
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- Cited by
- 43 opinions
BICKHAM v. MILLER,584 F.2d 736(5th Cir. 1978)
LUCY P. BICKHAM, PLAINTIFF-APPELLANT, v. WILLIAM E. MILLER, COLONEL,
U.S.A.F. COMMANDER, 3400 TECHNICAL TRAINING GROUP, TECHNICAL TRAINING
CENTER, KEESLER AIR FORCE BASE, MISSISSIPPI, DEFENDANT-APPELLEE.
No. 78-2091.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
November 22, 1978.
L. A. Smith, III, Asst. U.S. Atty., Robert E. Hauberg, U.S. Atty., Jackson, Miss., for defendant-appellee.
Before RONEY, GEE and FAY, Circuit Judges.
[2] On appeal plaintiff argues that defendant's motion to dismiss should have been viewed as a motion for summary judgment since the district court relied on the administrative record. The district court, however, may receive evidence and make findings of fact limited to jurisdictional matters on a motion to dismiss.See Reeb v. Economic Opportunity Atlanta, Inc.,516 F.2d 924(5th Cir. 1975).See also Welsh v. American Surety Co. of NewYork,186 F.2d 16(5th Cir. 1951).
[3] Plaintiff argues, in addition, the thirty-day period in which the administrative complaint of discrimination should be filed did not begin to run from the date she learned of the denial of her application for promotion. Rather, plaintiff contends thePage 738thirty-day period began to run approximately five months after the promotion denial on the date she discovered that no women served on the promotion evaluation committee. In support of this contention plaintiff relies onReeb v. Economic OpportunityAtlanta, Inc., supra.It is clear that timely filing is jurisdictional, however,Reebpermits the commencement of the filing period to be delayed in certain instances until a complainant learns or could be reasonably expected to learn of the discriminatory act.Reeb, supraat 930.
[4] InReebthe plaintiff was told that her termination was due to lack of funds. Several months later she learned that a male had been hired to fill her position. The court noted that plaintiff might not have been able to know that discrimination prompted her termination until another person was hired for that position. The court also noted that defendant had deliberately concealed the true facts from plaintiff. The case was remanded to the trial court to determine when a person with a reasonably prudent regard for her rights, so circumstanced, would or should have suspected discrimination.
[5] Although the record here is not explicit, it is apparent that the district court found that plaintiff should have investigated the cause of her nonpromotion at the time she learned her application for promotion had been denied. It is not disputed that she was aware that the promotion evaluation committee had been formed and of her new rating under its guidelines five months before she filed the administrative complaint.
[6] The determination of the district court that plaintiff should have filed an administrative complaint within thirty days from the date of the promotion denial is not clearly erroneous.
[7] AFFIRMED.
- Rule 18, 5 Cir.;see Isbell Enterprises, Inc. v. CitizensCasualty Co. of New York et al.,5 Cir., 1970,431 F.2d 409, Part I. ↩