MEMORANDUM OPINION
In this case, a former postal inspector brings suit against the U.S. Postal Service for alleged gender discrimination and retaliation. The defendant has moved to dismiss or, in the alternative, for summary judgment on the grounds that the plaintiffs suit is barred because she failed to exhaust administrative remedies. For the reasons explained below, the defendant’s motion is denied.
I. BACKGROUND
Plaintiff Lee Staropoli, who is female, formerly worked as a postal inspector, a law enforcement position within the U.S. Postal Service (the “Agency” or “USPS”). Complaint, ECF No. 1. In 1997, the Postal Inspection Service adopted a new pay scale requiring postal inspectors to work 50 hours per week. Compl. ¶ 9. According to Plaintiff Staropoli, the 50-hour requirement had a discriminatory disparate impact on female postal inspectors generally and “became burdensome and untenable” to her personally given her “family and childcare responsibilities and obligations.” Id. ¶¶ 11-13. In 1999, the plaintiff wrote and circulated a proposal criticizing the new pay policy and suggesting alternative recommendations. Id. ¶¶ 14-19. The Agency declined to adopt the plaintiffs proposals. Id. ¶ 19. In February 2001, the plaintiff contacted the Agency’s Equal Employment Opportunity (“EEO”) office to file a complaint about the pay policy and, later that month, requested part-time employment, despite the 50-hour requirement. Id. ¶¶ 22-23.
In late April 2001, the plaintiff advised her supervisor that she could no longer work a 50-hour week, and in May 2001, she repeated her request for part-time employment and also requested a leave of absence because her previous request for part-time employment had not been granted.
Id.
¶¶ 24-26. The Agency denied the plaintiffs requests for permission to work part-time or to take a leave of absence.
Id.
¶27. Having failed to convince the Agency to modify its 50-hour requirement, the plaintiff simply stopped reporting to work at all in July 2001.
Id.
¶ 28. Her supervisors informed her that she was absent without leave and ultimately terminat
The plaintiff claims that her termination following the adoption of the 50-hour rule constituted disparate treatment and disparate impact discrimination on the basis of sex as well as retaliation for her filing of an EEO complaint. Id. ¶¶ 46-69. As a result, the plaintiff claims that she suffered various injuries, including loss of salary, awards, benefits, and professional status, as well as “great emotional distress, including, but not limited to, insomnia, weight gain, Major Depressive Disorder, chronic fatigue, a miscarriage, and Generalized Anxiety Disorder.” Id. ¶¶ 54, 61, 69. She seeks lost wages, compensatory damages, and injunctive and declaratory relief for the defendant’s alleged violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e eb seq. Id. ¶ 1, “Relief Sought.”
The defendant, the United States Postmaster General in his official capacity as head of the United States Postal Service, has moved to dismiss the complaint, or, in the alternative, for summary judgment. The defendant’s sole argument on this motion is that the plaintiffs lawsuit is foreclosed for failure to exhaust administrative remedies properly, which is a procedural requirement for bringing a Title VII suit. Accordingly, a brief review of the administrative process in this case is necessary.
The plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”) on October 17, 2005. 1 Defs.’ Statement of Material Facts as to Which There is No Genuine Dispute (“SMF”) ¶ 1. A hearing on this complaint was held before an EEOC Administrative Law Judge (“ALJ”) on June 6, 2007. SMF ¶ 2. On the same day as the hearing, the ALJ issued a bench decision dismissing the case on the merits. Id. ¶ 3. The plaintiff appealed the ALJ’s decision to the EEOC’s Office of Federal Operations (“OFO”) on August 4, 2008, more than a year after the ALJ’s decision. Id. ¶ 4. Her appeal was dismissed as untimely by a ruling issued on December 3, 2008. Id. On December 22, 2008, the plaintiff moved for reconsideration of the denial of her appeal, and the OFO again denied the appeal on reconsideration on June 19, 2009. Id. ¶ 5. The plaintiff then brought this civil action on September 17, 2009. Id. ¶ 6. The defendant filed his motion to dismiss or, in the alternative, for summary judgment on May 13, 2010, and the parties completed the initial briefing on that motion on August 8, 2010. 2
On May 2, 2011, the Court directed the parties “to file supplemental briefing and any relevant factual materials addressing the prejudice, if any, suffered by the defendant due to the allegedly untimely delay in the plaintiffs administrative appeal.” Minute Order dated May 2, 2011. The defendant responded to the Court’s order on May 9, 2011, but did not identify any prejudice that resulted from the delay in the plaintiffs appeal. The plaintiff also filed supplemental briefing in response to the Court’s order on May 23, 2011.
The defendant’s motion, which is now before the Court, hinges on whether the plaintiff validly exhausted administrative remedies given her allegedly untimely administrative appeal.
A. Standards of Review and Regulatory Framework
1.Motion to Dismiss
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff need only plead “enough facts to state a claim to relief that is plausible on its face” and to “nudge[] [his or her] claims across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly,
2.Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for summary judgment “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” based upon the pleadings, depositions, and affidavits and other factual materials in the record. Fed.R.Civ.P. 56(a), (c);
Tao v. Freeh,
3.EEOC Administrative Review Procedures
The EEOC is responsible for investigating and adjudicating formal complaints of discrimination from federal employees. When an EEOC administrative judge holds a hearing and issues a decision on an employee’s complaint, the agency of the federal government that employed the claimant is supposed to issue a final order on the complaint within 40 days. 29 C.F.R. § 1614.110(a). If the agency does not issue a final order within 40 days, then the decision of the administrative judge becomes the final action of the agency by operation of law. 29 C.F.R. § 1614.109(i). A claimant may appeal a final agency action “within 30 days of receipt of the dismissal, final action or decision.” 29 C.F.R. § 1614.402(a). This 30-day appeals period applies regardless of whether the final agency action is in the form of a final agency order issued pursuant to 29 C.F.R. § 1614.110 or in the form of an administrative judge’s decision that becomes a final agency action by operation of law pursuant to 29 C.F.R. § 1614.109(i). In cases where an administrative judge’s decision becomes the final agency action, the 30-day appeals period ordinarily starts to run following the end of the 40-day period in which the agency could have issued its final order.
See
29 C.F.R. § 1614.402;
Wiley v. Johnson,
Ordinarily, a Title VII plaintiff’s claim is time-barred unless the plaintiff “file[s] his administrative appeal with the EEOC within the thirty-day period prescribed by EEOC regulations ... or file[s][a] civil action in federal court within ninety days of the receipt of the Final Agency Decision.”
Miller v. Rosenker,
B. The Parties’ Arguments
1. The Timing of the Plaintiffs Administrative Appeal
The thrust of the defendant’s motion is that the plaintiffs claim is time-barred because she did not appeal the ALJ’s decision in a timely fashion. According to the defendant, the Agency took final action on the plaintiffs administrative complaint on August 5, 2007 — i.e., 40 days after the ALJ’s decision of June 26, 2007, when the ALJ’s decision became the final Agency action pursuant to 29 C.F.R. § 1614.109®. According to the defendant, the plaintiff then had 30 days to appeal the Agency action — i.e., until September 4, 2007 — or 90 days to file a civil action in federal court. The plaintiff did not appeal until almost a year later, however, on August 4, 2008, which resulted in the OFO dismissing the plaintiffs appeal as untimely. The plaintiff contends that, despite the ordinary 30-day time limit for appeals, her appeal must be considered timely because the ALJ’s decision did not contain proper notices regarding the relevant time limits, and that equitable tolling is appropriate even if the appeal were considered untimely-
The plaintiffs argument turns on her assertion that the notice provided in the ALJ’s decision was insufficient to trigger the relevant limitations period for the time in which she had to file her appeal. The ALJ’s notice provided, in relevant part, as follows:
This is a decision by an Equal Employment Opportunity Commission Administrative Judge issued pursuant to C.F.R. § 1614.109(b), 109(g) or 109®. With the exception detailed below, the complainant may not appeal to the Commission directly from this decision. EEOC regulations require the Agency to take final action on the complaint by issuing a final order notifying the complainant whether or not the Agency will fully implement this decision within forty (40) calendar days of receipt of the hearing file and this decision. The complainant may appeal to the Commission within thirty (30) calendar days of receipt of the Agency’s final order.... [---]
If the Agency has not issued its final order within forty (40) calendar days of its receipt of the hearing file and this decision, the complainant may file an appeal to the Commission directly from this decision....
Defs.’ Mem., Ex. O, Staropoli v. USPS, EEOC No. 430-2006-00074x, Agency No. 66-00-001-0206 (June 26, 2007) (hereinafter, “ALJ Decision”) (emphases in original).
The plaintiff contends that this notice was deficient because (1) it did not clearly advise the plaintiff that the 30-day appeal period commenced after 40 days if the Agency had not issued its final order by then; (2) it did not advise the plaintiff of the applicable 90-day time limit for filing a civil action; and (3) it did not inform the-plaintiff of the name of the proper defendant in a civil suit.
The plaintiff argues that a final agency action must contain these particular notices because 29 C.F.R. § 1614.110(a) states that a final agency order “shall contain notice of the complainant’s right to appeal to the Equal Employment Opportunity Commission, the right to file a civil action in federal district court, the name of the proper defendant in any such lawsuit and the applicable time limits for appeals and lawsuits.” While these § ,1614.110 notice requirements technically apply to final orders issued by the agency, rather than to ALJ decisions, the Court holds that ALJ decisions that become final agency actions by operation of law also must provide comparable notices in order to trigger the applicable statutes of limitations for appeals and civil lawsuits. It would frustrate the very purpose of the notice regulations to hold that ALJ decisions may automatically trigger the statute of limitations without providing notices equivalent to those required by § 1614.110.
See Moneas v. Johanns,
No. Civ. A. 2:03CV416-W,
Here, the chief deficiency in the ALJ’s notice, as relevant to the plaintiffs appeal, was that the notice did not clearly advise the plaintiff that a 30-day appeals period would commence at the end of the agency’s 40-day review period if the Agency had not issued its final order by that time. Under the EEOC’s guidance documents, the notice should have contained this information.
See
EEOC Management Directive 110, Chapter 9, § 11(a)(1)(b) (“[T]he Administrative Judge should inform the complainant ... [that]
The defendant contends that the ALJ’s notice, including its reference to 29 C.F.R. § 1614.109®, should have been adequate to provide the plaintiff with notice of the correct limitations period, especially since the plaintiff was represented by counsel.
See
Def.’s Reply at 4-8. There are two problems with this argument. First, the ALJ’s decision did not contain adequate notice of the time limits for appeal, as discussed above, and the D.C. Circuit has held that the obligation to provide valid notice applies equally to
pro se
plaintiffs and those represented by counsel.
See Wilson v. Pena,
The defendant also implies that the plaintiffs former lawyer knew of the 30-day time limit and deliberately flouted it in a “calculated, strategic decision to play a waiting game.” Def.’s Reply at 17-18. To make this point, the defendant relies on an excerpt from a letter attached to the plaintiffs administrative request for reconsideration in which the plaintiffs former counsel explained that the timing of the plaintiffs appeal reflected a strategic decision to wait for an EEOC decision on another complaint before appealing. '
See id.
When this excerpt from the lawyer’s letter is taken in its full context, however, its clear meaning is not that the lawyer was aware of the 30-day time limit, but rather that he believed he could file an appeal “at any time” and thus decided to file at what he deemed to be the most strategically advantageous opportunity.
See
Def.’s Mem., Ex. P., Letter from Mitchell Kastner to Carlton Hadden, Director, Office of Federal Operations (Dec. 22, 2008). The plaintiffs former lawyer’s letter attempted to explain that the timing
The plaintiff in this case thus did not have adequate notice of the proper, time limit for appealing to the EEOC from the ALJ’s decision. The ALJ’s decision also did not provide notice of the time limit for filing a civil action. The Court must now analyze what consequences flow from the fact that the plaintiff did not receive proper notice of these time limits.
The plaintiff contends that the inadequate notice in the ALJ’s decision justifies equitable tolling of the time limits. It is well settled that the “the administrative time limits created by the EEOC erect no jurisdictional bars to bringing suit. ' Rather, functioning like statutes of limitations, these time limits are subject to equitable tolling, estoppel, and waiver.”
Fortune,
The lack of adequate notice of the statute of limitations provides a basis for equitable tolling in this case.
5
See Bow-den,
In some Title VII cases involving inadequate notice of the applicable statutes of limitations, the D.C. Circuit has applied an approach similar to, although arguably distinct from, equitable tolling. In these cases, the D.C. Circuit has held that a final agency decision issued without notice or with defective notice simply does not trigger the ordinarily applicable statute of limitations period for filing a civil suit under Title VII.
See Wilson v. Pena,
The conclusion that the statute of limitations was not triggered does not mean, however, that the plaintiff then has an unlimited time period in which to appeal, as the plaintiff contends.
8
See
Pl.’s Mem. at 18. The D.C. Circuit has explained that the plaintiff must still act with reasonable diligence to preserve her rights or her claim may be defeated by the defense of laches.
See Wilson,
The equitable defense of laches applies where there is (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.
See Menominee Indian Tribe of Wisconsin v. United States,
2. The Timing of the Plaintiffs Civil Action
The defendant has also moved to dismiss the plaintiffs complaint on the grounds that the plaintiff did not timely file an action in this Court. This argument is unfounded as well.
To maintain a Title VII claim in federal court, a federal employee is required to file suit within ninety (90) days of notice of final administrative action.
See McAlister v. Potter,
In this case, the plaintiff appealed the ALJ’s original decision to the EEOC, and, as explained above, the Court will excuse the plaintiffs delay in filing the appeal due to lack of notice. The plaintiffs appeal was denied as untimely on December 3, 2008. Def.’s Mem., Ex. C.,
Staropoli v. Potter,
The defendant argues that the plaintiffs lawsuit is untimely because she did not file a suit within 90 days of December 3, 2008, the date that the OFO first denied her appeal. Def.’s Mem. at 18. Indeed, the defendant argues that the plaintiff waited “a full four months” longer than the 90-
The defendant’s argument is misplaced, however, because the plaintiffs timely filing of a request for reconsideration of the December 3, 2008 decision reset the time limit until 90 days after notice of a decision on the request for reconsideration.
See Williams v. Chu,
III. CONCLUSION
For the reasons stated above, the Court finds that the plaintiff did not fail to exhaust administrative remedies. Accordingly, the Court denies the defendant’s motion to dismiss or, in the alternative, for summary judgment.
Notes
. The plaintiff filed two prior administrative complaints in connection with the same general dispute over the USPS pay scale and work hour requirements. These complaints are not at issue here. See Def.’s Mem. at 6-7.
. The case was reassigned to the undersigned on January 20, 2011.
. To the extent that the plaintiff suggests that the agency is required to issue a final order and that no final action can occur following the ALJ’s decision alone, the plaintiff is incorrect. Section 1614.109(i) clearly contemplates that an ALJ decision will become the final agency action if the agency does not issue a final order within 40 days of receipt of the ALJ’s decision. See also infra n. 7. The Court therefore does not rely on the plaintiff's assertions that somehow "the Agency led Ms. Staropoli and her representative to believe” that the Agency would eventually issue a final order at some point after the 40-day agency review period had expired. Pl.’s Response to Def.’s Submission to the Court’s Order for Supp. Briefing at 3.
. This FAQ language remained in effect on the EEOC website as of May 23, 2011.
. The instant case is distinguishable from
Wiley v. Johnson,
a case relied upon by the defendant, because the plaintiff in that case apparently did not argue that inadequate notice would justify equitable tolling.
Wiley,
. See discussion infra regarding the parties' submissions on the issue of prejudice.
. The Court need not decide whether and precisely how this approach may differ from equitable tolling since both approaches lead to the same outcome here.
. The plaintiff argues that because the ALJ's decision did not provide full notice of the plaintiff's appeal rights and the corresponding time limits, the ALJ’s decision could not become a final agency action at all, and that, therefore, no final agency action ever occurred in this case.
See
Pl.'s Mem. at 14-15. This position is against the weight of authority and sound reasoning. First, 29 C.F.R. § 1614.109(i) states plainly that "[i]f an agency does not issue a final order within 40 days of receipt of the administrative judge’s decision ... then the decision of the administrative judge shall become the final action of the agency.” Second, in similar circumstances, the D.C. Circuit .has explained that where the Title VII statute of limitations period never started to run because the plaintiff never received proper notice, that
“does not mean
that the [agency] never took final action.”
Williams,
. To be clear, a plaintiff cannot simply file a late administrative appeal, wait for the EEOC to dismiss the appeal as untimely, and then file a civil action within 90 days of the EEOC’s dismissal (or within 90 days of the dismissal of such an untimely appeal on a request for reconsideration).
See Ford v. Kelso,
Civ. A. No. N-93-1499,