156 F. Supp. 3d 28
D.D.C.2016Background
- McGary, a former Peace Corps employee, filed EEO complaints after alleging racial discrimination following differential pay and a reprimand; he was later fired in 2002.
- The EEOC ultimately found in McGary’s favor, ordering corrective relief including backpay and other remedies; after appeals and modifications the EEOC issued a final determination on April 26, 2013.
- McGary filed this federal suit on August 6, 2013 (102 days after the EEOC decision), naming the Peace Corps Director, a former supervisor (Janssen), and the EEOC Chair. He seeks review of the EEOC decision and additional damages.
- The Peace Corps later submitted a compliance report showing it paid McGary approximately $411,470.33 in net backpay, which McGary does not dispute receiving.
- Defendants moved to dismiss raising (1) a six-year statute-of-limitations defense (withdrawn after intervening D.C. Circuit authority), (2) untimeliness under Title VII’s 90-day receipt rule, (3) that EEOC is not liable for processing errors, (4) that individual Peace Corps employees are not proper defendants, and (5) that McGary must choose enforcement vs. review of the EEOC order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §2401(a) six-year limitations bars suit | McGary implicitly opposes dismissal on this ground | Gov’t argued §2401(a) barred claim | Dismissal ground withdrawn after Howard v. Pritzker; not decided by court |
| Whether Title VII’s 90‑day filing rule (42 U.S.C. §2000e‑16(c)) bars suit | McGary alleges he filed within 90 days of receipt | Gov’t says suit was filed 102 days after issuance and presumptively received within 3–5 days, so untimely | Court denied dismissal on timeliness at Rule 12 stage; factual dispute about actual receipt precludes deciding on motion to dismiss |
| Whether EEOC (and its Chair) may be sued for its handling of McGary’s charge | McGary contends EEOC retaliated (First Amendment/equal protection) via delays and contacts with Senator/White House | Gov’t: no cause of action against EEOC for processing negligence or malfeasance; Title VII does not authorize suit against EEOC | Court dismissed claims against the EEOC/Chair because complaint contained no constitutional claim; allowed leave to amend to assert constitutional claims promptly |
| Whether individual Peace Corps employees may be sued in their personal capacities | McGary clarified he is not seeking individual-capacity recovery | Gov’t: Title VII requires the head of the agency be the defendant for appeals | Court dismissed claims against Janssen and any individual-capacity claims, substituted the current Peace Corps Director as proper defendant |
Key Cases Cited
- Scott v. Johanns, 409 F.3d 466 (D.C. Cir.) (plaintiff must re-litigate liability if challenging EEOC damage determination)
- Howard v. Pritzker, 775 F.3d 430 (D.C. Cir.) (§2401(a) inapplicable to Title VII actions)
- Smith v. Casellas, 119 F.3d 33 (D.C. Cir.) (no cause of action against the EEOC for processing of discrimination charges)
- Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (Title VII filing rules are subject to equitable tolling)
- Hishon v. King & Spalding, 467 U.S. 69 (1984) (standard for accepting allegations on motion to dismiss)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state a plausible claim to survive Rule 12(b)(6))