266 F. Supp. 3d 254
D.D.C.2017Background
- McGary, a former Peace Corps employee, prevailed before the EEOC on retaliation claims and ultimately recovered over $450,000; the EEOC issued a final decision on April 26, 2013 explaining the 90-day right-to-sue period under 42 U.S.C. § 2000e-16(c).
- McGary moved from Fredericksburg, Virginia to Yokosuka, Japan in May 2012; prior EEOC mailings had been sent to his Japan address and the EEOC had corresponded with him from that address in 2012.
- The EEOC’s April 26, 2013 final decision was mailed, but the certificate of mailing is absent from the record and the EEOC’s service addresses for that specific mailing are not established by the parties.
- McGary testifies the EEOC mailed the final decision only to his vacant Virginia home, his estranged wife found it, and she forwarded it to him in Japan; McGary estimates he received the forwarded notice in May or June 2013 and attests forwarding would require multiple postal system steps.
- McGary filed this suit on August 6, 2013—102 days after April 26—so the central dispute is whether he was in “receipt of notice” before May 8, 2013 (which would render the suit untimely) or whether the 90-day period was tolled or triggered later.
- The Peace Corps moved for summary judgment arguing untimeliness; the Court permitted limited discovery on receipt and denied summary judgment because genuine factual disputes exist and equitable tolling may apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 90-day filing period began before May 8, 2013 (meaning McGary’s suit was untimely) | McGary contends he did not actually receive the EEOC’s final decision until mid-May or later because it was mailed only to Virginia and then forwarded from his estranged wife to Japan | Peace Corps contends mailing on April 26 presumptively gave McGary notice within a short postal period and that filing was therefore untimely | Court: Genuine factual dispute exists about when McGary actually received notice; summary judgment denied because record does not show uncontroverted receipt before May 8, 2013 |
| Whether constructive notice to a third party (e.g., spouse who collected mail) or to an attorney triggers the 90-day clock | McGary argues that receipt by his spouse at a vacant Virginia house does not necessarily constitute his receipt or constructive notice | Peace Corps argues constructive/iesimptive notice applies (relying on Rao reasoning) and thus McGary was on notice when spouse retrieved mail | Court: Irwin (notice to counsel) and Bell (actual notice to employee) control; Rao does not mandate constructive notice via third parties here; the question of whether spouse’s receipt constitutes constructive notice remains disputed and the Peace Corps failed to establish it as a matter of law |
| Burden of proof on timeliness and on equitable tolling | McGary relies on record evidence to create dispute and (alternatively) seeks equitable tolling because the EEOC deviated from prior practice of mailing to Japan | Peace Corps asserts plaintiff bore burden to prove timely filing or to plead tolling in complaint | Court: Defendant bears the burden to prove untimeliness; plaintiff bears burden only to show facts supporting equitable tolling once defendant meets its burden; here defendant did not meet its burden |
| Whether equitable tolling applies given EEOC’s mailing practices | McGary argues the EEOC’s apparent failure to mail to his Japan address (contrary to prior practice) and the resulting delay justify equitable tolling | Peace Corps argues tolling is unavailable if plaintiff failed to update address or otherwise at fault; also contends mailing to address of record was sufficient | Court: Material facts permit a reasonable inference that any delay resulted from EEOC’s mailing to the wrong address, not McGary’s fault; equitable tolling cannot be rejected on summary judgment |
Key Cases Cited
- Bell v. Brown, 557 F.2d 849 (D.C. Cir. 1977) (statutory 90-day clock runs from actual notice to the employee)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (notice to attorney/attorney’s office is notice to client for filing deadlines)
- Rao v. Baker, 898 F.2d 191 (D.C. Cir. 1990) (constructive notice principles applied to regulatory appeal deadlines; employee’s own failure to provide accurate mechanisms for receipt can preclude relief)
- Colbert v. Potter, 471 F.3d 158 (D.C. Cir. 2006) (defendant bears burden to plead and prove timeliness affirmative defense under § 2000e-16(c))
- Bowden v. United States, 106 F.3d 433 (D.C. Cir. 1997) (once defendant proves untimeliness, plaintiff must show facts supporting equitable avoidance)
- Smith-Haynie v. District of Columbia, 155 F.3d 575 (D.C. Cir. 1998) (equitable tolling requires diligence plus extraordinary circumstances)
- Maggio v. Wis. Ave. Psychiatric Ctr., Inc., 795 F.3d 57 (D.C. Cir. 2015) (no tolling when plaintiff’s own failure to provide accurate address causes nonreceipt)
- Dyson v. District of Columbia, 710 F.3d 415 (D.C. Cir. 2013) (equitable tolling standards reaffirmed)
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling requires diligence and extraordinary circumstances)