McGary v. CrowleyMcGary v. Crowley
CONCLUSION
For the reasons explained above, the Court will deny the Representatives motion for vacatur of this Court’s September 18, 2007 opinion. A separate order has been issued on this date.
Rhonda Lisa Campbell, Tammy Allison Holloway, U.S. Attorney’s Office, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge
Plaintiff Theodore McGary prevailed against his former employer, the Peace Corps, in proceedings before the Equal Employment Opportunity Commission (“EEOC”). The EEOC determined that the Peace Corps’s decision to fire McGary was motivated by unlawful retaliatory ani-
Dissatisfied with that outcome, McGary brings this pro se civil action to relitigate his claims. See McGary v. Hessler-Radelet (“McGary I”), 156 F.Supp.3d 28, 36 (D.D.C. 2016). The question is whether he filed his complaint too late. Under Title VII of the Civil Rights Act of 1964, a federal employee who has been “aggrieved by the [EEOC’s] final disposition of his complaint” may press his claims in federal court—but only “[w]ithin 90 days of receipt of notice of [the EEOC’s] final action.”
The Peace Corps has now moved for summary judgment on the ground that McGary filed his lawsuit more than 90 days after his “receipt of notice.” Dkt. 42. The record, however, does not reveal precisely when McGary actually received the notice. And it is undisputed that the EEOC mailed its final decision only to McGary’s prior residence in Fredericksburg, Virginia—despite knowing that McGary had since moved to the U.S. naval base in Yokosuka, Japan, and despite the EEOC’s prior practice of mailing notices to McGary’s address in Japan. McGary posits that, givеn the logistics of forwarding his mail from Virginia to Japan, he would not have received the notice of final agency action before the relevant date.
As explained below, the Peace Corps has failed to shoulder its burden of demonstrating by uncontroverted evidence that McGary received notice before May 8, 2013. In the alternative, moreover, McGary has adduced sufficient facts to permit the reasonable conclusion that his 90-day deadline to sue should be equitably tolled in light of the EEOC’s failure to send the nоtice to McGary’s residence in Japan. The Court, accordingly, DENIES the Peace Corps’s motion.
I. BACKGROUND
McGary has been litigating this case against the Peace Corps for almost seventeen years. In August 2000, McGary, then a Peace Corps employee, invoked the agency’s equal employment opportunity (“EEO”) counseling process, arguing that the Peace Corps declined to grant him a wage increase because of his race. See EEOC Merits Decision, 2007 WL 788295, at *1-2. In September 2000, the Peace Corps issued McGary a reprimand that ultimаtely led to his dismissal. Id. at *1. By November 2000, McGary had filed one or more formal EEO complaints re-asserting his earlier claim and further alleging that the reprimand was the product of both racial discrimination and unlawful retaliation for his EEO activity. Id. In September 2005, an EEOC administrative law judge rejected the discrimination claims but found that McGary was the victim of unlawful retaliation. Id. at *1-2. The EEOC affirmed that judgment in March 2007. Id. at *6-7. The parties then spent the next six years litigating the details of
In May 2012—while the EEOC proceedings were ongoing—McGary relocated from Fredericksburg, Virginia, to the U.S. naval base in Yokosuka, Japan. Dkt. 42-2 at 12; Dkt. 46 at 26 (McGary Aff.). The record does not reflect whether McGary’s contact information on file with the EEOC was ever officially updated (and, indeed, neither party has proffered a copy of the EEOC’s docket or any other evidence of the EEOC’s internal designation of McGary’s address of record). But when the EEOC issued its next decision in McGary’s case in August 2012, it mailed copies of that decision to McGary at both his Virginia address and his Japanese one. Compare Dkt. 42-2 at 14 (listing McGary’s Japanese address) with Dkt. 13 at 51 (EEOC certificate of mailing to that address). McGary thereafter continued to correspond with the EEOC from Japan, see Dkt. 42-2 at 14, and the EEOC continued to send documents exclusively to McGary’s Japanese address, see Dkt. 43 at 25-27.
On April 26, 2013, the EEOC issued its final decision in McGary’s case. See Final EEOC Decision, 2013 WL 1856740. That decision contained the following paragraph:
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no f[u]rther right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriatе United States District Court within ninety (90) calendar days from the date that you receive this decision.
Id. at *5 (bold and underlining in original). Neither party has submitted a copy of the certificate of mailing, which would have identified the date the decision was actually mailed and the address or addresses to which it was sent. Cf. Dkt. 13 at 51. And, significantly, the Peace Corps “ha[s] no personal direct knowledge” of whether or not the EEOC mailed its final decision to Japan. Dkt. 42-1 at 4. As a result, the only account of how the EEOC served its decision is McGary’s own testimony.
According to MсGary, the EEOC mailed its final decision to his house in Virginia, but not to his residence in Japan. Dkt. 46 at 26 (McGary Aff.). At the time, the Virginia house was vacant and uninhabitable due to water damage from flooding. Dkt. 42-2 at 12 (McGary Interr. Resp. No. 2(a)). McGary’s estranged wife lived nearby, however, where she was undergoing treatment for cancer. Id. at 12-13 (McGary Interr. Resp. No. 2(b)). At some point, although McGary is unsure when, McGary’s wife visited the Virginia house, found the EEOC’s decision in the mail, and forwarded it to McGary in Japan. Id. McGary does not remember the exact date on which he reсeived the forwarded copy, but he believes it arrived “sometime in May or June 2013.” Id. at 13 (McGary Interr. Resp. No. 2(c)). He further attests that, “because the notice had to be processed through two postal systems, the U.S. Post Office in the U.S., and the U.S. Navy Postal system in Japan,” the EEOC’s final decision “would not have reached the U.S. Navy post office in Yokosuka earlier than May 9, 2013.” Dkt. 46 at 26-27 (McGary Aff.).
On August 6, 2013, McGary filed the instant lawsuit. Dkt. 1 at 1. McGary’s statutory deadline for filing was 90 days after his “receipt of notice” of the EEOC’s final decision. See
The Peace Corps first raised its timeliness defense as one of many arguments in its earlier motion to dismiss. Dkt. 14-1 at 7. The Court denied that aspect of the motion, holding that “further factual development and briefing [was] necessary before [the Court] [could] determine whether [McGary’s] claim is barred by the 90-day statute of limitations in
II. LEGAL STANDARD
The moving party is entitled to summary judgment under
III. ANALYSIS
Under Title VII, McGary was required to bring this lawsuit “[w]ithin 90 days of receipt of notice of final action taken by [the EEOC].”
A. Timeliness of the Complaint
The parties devote little attention to the threshold question of statutory interpretation: Did delivery of the final EEOC decision to McGary’s Virginia house (where his estranged spouse retrieved it and forwarded it to McGary in Japan) constitute “receipt of notice” sufficient to trigger the 90-day clock? The answer to that question is not obvious under Supreme Court or D.C. Circuit precedent. See, e.g., Christmas v. Spellings, 404 F.Supp.2d 239, 240 (D.D.C. 2005). Three decisions, however, shеd light on how courts should go about applying the receipt-of-notice requirement.
In the first of those decisions, Bell v. Brown, 557 F.2d 849 (D.C. Cir. 1977), the D.C. Circuit read
The Supreme Court walked back the farthest reaches of Bell in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). Irwin held that an employee is constructively “[in] receipt of notice” for purposes of
The final case of note is Rao v. Baker, 898 F.2d 191 (D.C. Cir. 1990), on which the Peace Corps principally relies. Unlike Bell and Irwin, Rao did not involve a statutory deadline or
In Rao, then-existing regulations required employees to bring EEOC appeals within “20 calendar days after receipt of the agency’s notice of final decision.” Id. at 193 n.3. The agency had mailed notice of its final decision to Rao at his last known address and to Rao’s attorney. Id. at 192. Rao, however, had left the country some months prior without alerting the agency, and he never received the notice. Id. Instead, the notice was received by (1) Rao’s friend, whom Rao had asked to check his mail, and (2) Rao’s attorney. Id. The attorney ultimately filed Rao’s EEOC appeal, but did so “27 days after the attorney acknowledged receiving notice and 23 days after Rao’s friend had signed for the notice.” Id.
The D.C. Circuit held that Rao’s complaint was untimely because he was on “constructive notice” of the agency’s decision. Id. at 193. The court premised its decision not to extend Bell’s rule on four factors: (1) that Bell interpreted a statute whereas Rao construed a regulation; (2) that the EEOC’s regulatory scheme had “substantially changed” since Bell; (3) that “unlike in Bell, Rao had an ongoing attorney-client relationship with his lawyer at the time the notice was mailed;” and (4) that Rao’s friend also received the notice. Id.
Most importantly for present purposes, Rao declined to decide “whether receipted notice by Rao’s friend would be suffiсient in and of itself to constitute constructive notice to Rao.” Id. at 197. Rather, the critical fact was that “Rao himself, not the agency, [had] designated the faulty mechanism which resulted in his nonreceipt of the notice.” Id. “[I]mpos[ing] an actual notice requirement ... [where] the agency has taken all reasonable steps to send proper notice ... but the [employee] himself has made inadequate arrangement for receipt,” the court said, would allow employees to evade the statute of limitations “simply [by] fаil[ing] to acknowledge receipt of a registered letter at the address provided to the agency.” Id. The court deemed this result “unworkable” and construed the regulation to avoid it. Id.
Although the Peace Corps does not press this point—and, indeed, does not even cite Bell—one portion of the Rao court’s analysis arguably undercuts the D.C. Circuit’s earlier holding in Bell. According to Rao, Bell must be understood against the backdrop that “the 30-day [now 90-day] statutory limit for filing a civil suit brooked no exceptions.” Rao, 898 F.2d at 194. “As a result,” Rao explained, “the [Bell] court felt it was necessary to accommodate the 30-day [now 90-day] requirement to the broad remedial purpose of [Title VII] by insisting that the applicant be given a full 30 days [now 90 days] in which to initiate a civil action after he became aware of the agency’s final denial of relief.” Id. at 194-95. That rationale did not apply, however, to the regulations at issue in Rao, which were “expressly subject to equitable tolling.” Id. at 195. And, as the Rao court further explained, “[h]ad equitable tolling been explicitly available in Bell, the court might not have felt compelled to interpret the statutory ‘receipt’ requirement as calling for actual receipt in all cases to protect Title VII сomplainants.” Id.
The major premise of that hypothetical, of course, has now come to pass. As noted above, Irwin held that equitable tolling is available under
In light of Bell, Irwin, and Rao, the meaning of “receipt of notice” in
The Peace Corps is not entitled to summary judgment under any of these criteria. To start, the Peace Corps has not attempted to bring this case within Irwin’s ambit. The Peace Corps never argues that McGary was represented by counsel when the EEOC issued its final decision, let alone argue that the decision arrived at his counsel’s office before May 8, 2013.
Similarly, the Peace Corps has failed to show that it is entitled to summary judgment under Rao’s employee-fault exception to Bell (assuming the D.C. Circuit would recognize the same exception for
That leaves Bell’s “actual notice” standard. But no evidence suggests that McGary received actual notice of the EEOC’s final decision prior to May 8, 2013. And, as both the Court and MсGary have previously explained, a reasonable factfinder could conclude that the EEOC’s final decision (which was mailed to McGary’s Virginia address on April 26, 2013) would have taken 12 or more days to reach McGary in Japan. See McGary I, 156 F.Supp.3d at 34; Dkt. 43 at 2. The Peace Corps has offered no evidence that the EEOC’s final decision was actually mailed on the date it was signed. See infra p. 4. But, even assuming it was, it is not difficult to construct a chain of events that would have delayed McGary’s receipt of the required notice until at least May 8. If, for example, the decision took 3 days to reach McGary’s Virginia residence, 4 days to be picked up and forwarded to McGary by McGary’s (seriously ill) wife, and 5 days to reach Yokosuka, then the notice would have appeared in McGary’s mailbox on May 8 at the earliest. The Court cannot foreclose such a possibility on the present record. Summary judgment is therefore unwarranted.
The Peace Corps makes three arguments to the contrary, none of which is persuasive.
First, the Peace Corps argues that “[t]here is a presumption that [McGary] received the [EEOC’s final] decision within five calendar days after the April 26, 2013, mailing.” Dkt. 42 at 6. This argument is confused. Although courts often presume that postal mail reaches the destination to which it is addressed in three-to-five business days, see, e.g.,
Second, the Peace Corps asserts that, under Rao, McGary “was put on constructive notice ... when his spouse checked his mail at [his Virginia] address.” Dkt. 42 at 7. That is not what Rao says. For one, Rao did not construe any statutory deadline at all, as the Court has already explained. See Rao, 898 F.2d at 193, 197; see also infra p. 8. The Peace Corps is therefore wrong to assert that “Rao is ... similar to the case at bar in that it involved a stаtutory time limit for the filing of an appeal.” Dkt. 47 at 10. Moreover, and more importantly, Rao expressly reserved on the question “whether receipted notice by Rao’s friend [at Rao’s unoccupied residence of record] would be sufficient in and of itself to constitute constructive notice to Rao.” 898 F.2d at 197. Although this Court could in principle resolve that open question now, it will not do so absent argument from the parties. Rather than advocate its desired result, the Peace Corps merely asserts—incorrectly—that the result is mandated by precedent. See Dkt. 42 at 7. That effort is unavailing.
Finally, the Peace Corps asserts that “[t]he burden of proving timely filing falls exclusively on the plaintiff,” such that am-
Thus, because the Peace Corps has failed to demonstrate the absence of any genuine issue of fact as to whether McGary was in “receipt of notice” prior to May 8, 2013, it is not entitled to summary judgment on its statute of limitations defense.
B. Equitable Tolling
In the alternative, the Court holds that summary judgment is inappropriate given the possibility of equitable tolling. Even assuming for the sakе of argument that McGary’s complaint was untimely, McGary can “avoid summary judgment ... [by] show[ing] the existence of evidence sufficient to permit a reasonable conclusion that the statute of limitations should have been equitably tolled.” Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C. Cir. 1998). Equitable tolling is not a “right ... without limit,” but rather requires a showing that the plaintiff “diligently” pursued his rights and “that some extraordinary circumstance stood in [his] way and prevented the timely filing.” Dyson v. District of Columbia, 710 F.3d 415, 421 (D.C. Cir. 2013) (internal quotation mark omitted) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)); see also Smith-Haynie, 155 F.3d at 579-80 (“ ‘The court’s equitable power to toll the [90-day period] will be exercised only in extraordinary and carefully circumscribed instances.’ ”) (citation omitted). Evidence that a plaintiff received “inaccurate or ineffective notice from a government agency required to provide notice of the limitations period,” however, can justify equitable tolling. Bowden, 106 F.3d at 438. As explained above, McGary has adduced evidence that the EEOC deviated from its prior practice of mailing notices to his address in Japan, and instead sent the notice only to Virginia. In other words, he has adduced evidence that the delay between the delivery of the notice to Virginia and McGary’s receipt of it in Japan is attributable not to McGary’s negligence but to the EEOC’s own mistake. This evidence “permit[s] a reasonable conclusion” that equitable tolling is warranted. See Smith-Haynie, 155 F.3d at 579.
The Peace Corps cites the rule that, “when a complainant fails to receive a right-to-sue notice because he gave the EEOC an incorrect address or because he neglected to inform the EEOC when he moved, the complainant is at fault and he is not entitled to equitable tolling.” Maggio, 795 F.3d at 60; see Dkt. 42 at 8. Although true, that rule is inapposite here. There is no evidence that McGary gave the EEOC the incorrect address or neglected to inform it of his move. To the contrary, the only available evidence shows that the EEOC was not only aware that McGary resided in Japan, but that it was in the practice of sending correspondence to his
The Peace Corps also asserts that, “[e]ven if the EEOC was aware of [McGary’s] whereabouts at the time they mаiled their final agency notice to [his] [Virginia] address, the EEOC satisfied its procedural obligations by mailing the final notice to [McGary’s] address of record, which was the [Virginia] address.” Dkt. 42 at 9. It is hard to know what the Peace Corps means by this. The Peace Corps fails to identify whatever obligations it may have in mind, and it cites no EEOC rule addressing how the agency should proceed when it is aware of more than one address for a complainant. There is no record evidence, moreover, that the Virginia address was McGary’s only—or even principal—“address of record.” Quite the opposite, the certificate of service on the EEOC’s August 2012 decision lists both McGary’s Japanese and U.S. addresses, see Dkt. 13 at 51; McGary attests that he mailed his “Request for Reconsideration” from his address in Japan, see Dkt. 46 at 26 (McGary Aff.); and McGary has produced correspondence from the EEOC that was sent in August and November 2012 exclusively to his address in Japan, see Dkt. 43 at 25-27. The Peace Corps offers no contrary evidence.
Finally, the Peace Corps contends that McGary has failed to dеmonstrate a factual basis for equitable tolling because he does not allege such a basis in his complaint. Dkt. 42 at 10. It goes without saying, however, that McGary was under no obligation to include in his complaint a response to the Peace Corps’s affirmative defense. See, e.g., de Csepel v. Republic of Hungary, 714 F.3d 591, 607-08 (D.C. Cir. 2013); Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006) (“[A] plaintiff is not required to negate an affirmative defense in his complaint ....”) (citation and internal quotation marks omitted). In resolving the Peace Corps’s motion for summary judgment, the Court must consider the basis for equitable tolling that McGary posits and supports in his opposition brief—namely, that “the EEOC mailed the [final] decision ... to the incorrect address.” Dkt. 43 at 3. Because McGary’s argument is supported by substantial record evidence, the Court must deny the Peace Corps’s motion for summary judgment.
CONCLUSION
Defendants’ motion for summary judgment, Dkt. 42, is hereby DENIED.
SO ORDERED.
RANDOLPH D. MOSS
United States District Judge