Walter Nielsen v. Chuck Hagel , 666 F. App'x 225 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1646
WALTER NIELSEN,
Plaintiff - Appellee,
v.
CHUCK HAGEL, Secretary of Defense, Pentagon,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:13-cv-01581-LMB-JFA)
Argued: September 20, 2016 Decided: November 15, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Vacated and remanded by unpublished opinion. Judge Keenan wrote
the opinion, in which Judge Floyd and Judge Thacker joined.
ARGUED: Lowell Vernon Sturgill, Jr., UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. Mindy Gae Farber,
FARBER LEGAL, LLC, Potomac, Maryland, for Appellee. ON BRIEF:
Joyce R. Branda, Acting Assistant Attorney General, Marleigh D.
Dover, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Dana J. Boente, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant. Theodore P. Stein, FARBER LEGAL, LLC, Bethesda,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in remanding an employment discrimination case to the
Department of Defense (Department) for further administrative
proceedings. Walter Nielsen, an employee of the Department,
filed a pro se action in the district court under Title VII of
the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et
seq. He asked the district court (1) to order the Department to
comply with its regulations for processing his equal employment
opportunity (EEO) complaint; and (2) to consider his substantive
allegations of employment discrimination.
The district court concluded that the Department failed to
follow required procedures during its processing of Nielsen’s
administrative complaint, and issued an order remanding the
matter to the Department for compliance with those procedures.
The district court also dismissed without prejudice Nielsen’s
substantive claims of discrimination alleged under Title VII.
Upon our review, we conclude that neither Title VII nor the
Administrative Procedure Act (APA), 5 U.S.C. §§ 701–06, provided
authority for the district court’s remand order. Accordingly,
we vacate the district court’s order remanding Nielsen’s
administrative claim to the Department, vacate the court’s
dismissal without prejudice of Nielsen’s substantive complaint
3
under Title VII, and remand the case to the district court for
further proceedings.
I.
We begin with a discussion of the statutes and regulations
governing EEO claims brought by federal employees.
A.
Title VII prohibits employment discrimination on the basis
of “race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2. These substantive protections are applicable to the
actions of federal executive agencies, such as the Department of
Defense, as well as to the actions of private entities. See id.
§ 2000e-16(a).
A federal employee alleging a violation of Title VII must
first raise the issue within his agency. Initially, the
aggrieved employee must consult with an EEO counselor in the
employee’s federal agency within 45 days of the allegedly
discriminatory act. 29 C.F.R. § 1614.105(a). The EEO counselor
is required to conduct an initial counseling session, during
which the counselor must inform the aggrieved party in writing
of his rights and responsibilities, and offer the employee the
option of pursuing alternative dispute resolution (ADR). Id.
§ 1614.105(b)(1), (2). If the aggrieved party opts to pursue
ADR, the EEO counselor must conduct a “final interview” with the
4
aggrieved party within 90 days of the initial interview. 1 Id.
§ 1614.105(d), (f). If the matter has not been resolved at the
end of this 90-day “pre-complaint processing period,” the
counselor must issue a written notice of right to file a formal
complaint within the agency. Id. § 1614.105(d)–(f).
When the pre-complaint processing period has expired, and
the notice of right to file a formal complaint has been issued,
the aggrieved party must file a formal complaint within 15 days
of receiving notice from the agency. Id. §§ 1614.105(d),
1614.106(b). The agency may dismiss untimely complaints,
although the 15-day time limit is subject to “waiver, estoppel,
and equitable tolling.” 29 C.F.R. § 1614.604(c).
After the agency issues a final decision or dismissal of
the employee’s administrative complaint, the aggrieved party may
appeal the decision to the Equal Employment Opportunity
Commission (EEOC), or may file a civil action under Title VII in
federal district court. See 42 U.S.C. § 2000e-16; 29 C.F.R.
§§ 1614.110, 1614.401. Any such civil action must be filed
within 90 days of the agency’s final action or, if an appeal
with the EEOC is filed, within 90 days of the EEOC’s final
1If the aggrieved employee opts not to pursue ADR, the EEO
counselor must conduct the final interview within 30 days of the
initial counseling session, or extend the period by no more than
60 additional days with the agreement of the aggrieved employee.
29 C.F.R. § 1614.105(d), (e).
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decision. 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(a),
(c). In addition, the regulations provide an opportunity for
the aggrieved party to file a civil action under Title VII in
the district court if the agency fails to issue a final decision
within 180 days of receiving the formal complaint, or if the
EEOC fails to rule on an appeal within 180 days of its filing.
29 C.F.R. § 1614.407(b), (d). Finally, the APA provides a
remedy for judicial review of “[a]gency action made reviewable
by statute and final agency action for which there is no other
adequate remedy in a court.” 5 U.S.C. § 704. With this
statutory and regulatory scheme in mind, we turn to the facts of
the present dispute.
B.
Walter Nielsen is a Latino employee of the Department of
Defense, in the Pentagon Renovation and Construction Program
Office (PENREN). Nielsen alleged that while employed at PENREN
from April 2000 to April 2010, he was subjected to a pattern of
employment discrimination. In early 2010, Nielsen applied for a
position within PENREN that provided a higher pay grade than his
existing position. Nielsen alleged that, despite being the most
qualified applicant, he was denied the promotion on the basis of
his Latino heritage.
Nielsen filed an informal grievance with the Department on
May 25, 2010. At the initial counseling session, Nielsen agreed
6
to pursue resolution of his grievance through the ADR procedures
prescribed by 29 C.F.R. § 1614.105(b)(2). However, certain
scheduling conflicts prevented the ADR process from occurring
within the prescribed 90-day time limit in 29 C.F.R.
§ 1614.105(f). These scheduling conflicts included the
unavailability of Nielsen’s supervisor to participate in the ADR
process at the beginning of the 90-day pre-complaint counseling
period, and the fact that Nielsen took emergency leave near the
end of the counseling period, from August 9 to August 20, 2010,
to tend to matters in Texas relating to his mother’s final
illness and death.
On August 18, 2010, while Nielsen was still in Texas and
five days before the 90-day pre-complaint counseling period was
set to expire, the Department issued a notice informing Nielsen
of his right to file a formal complaint within 15 days.
However, the Department did not conduct a final interview or
produce a written counselor’s report, both of which are required
by Department procedures.
Attached to the Department’s notice to Nielsen was a copy
of DD Form 2655, the Department’s official form for filing a
formal EEO complaint. DD Form 2655 includes instructions that
provide:
Your complaint must be filed within 15 calendar days
of the date of your final interview with the Equal
Employment Opportunity Counselor. If the matter has
7
not been resolved to your satisfaction within 30
calendar days of your first interview with the Equal
Employment Opportunity Counselor and the final
counseling interview has not been completed within
that time, you have the right to file a complaint at
any time thereafter up to 15 days after the final
interview.
These time limits may be extended if you show that you
were not notified of the time limits and were not
otherwise aware of them, or that you were prevented by
circumstances beyond your control from submitting the
matter within the time limits, or for other reasons
considered sufficient by the agency.
(emphasis added). After attending his mother’s funeral, Nielsen
returned to work on August 23, 2010. One day later, on August
24, 2010, Nielsen received a certified mailing informing him of
his right to file a formal EEO complaint, and an email notifying
him that the 15-day period to file such a complaint began
running as of that day.
During a portion of this 15-day period, Nielsen was
required to report for jury duty. On September 7, 2010, the
day before his formal complaint was due, Nielsen requested an
extension of time to file his EEO complaint. He spoke with his
EEO counselor, citing his jury service and his increased
workload after returning from emergency leave. The counselor
advised Nielsen that although the filing deadline could be
extended, the counselor could not guarantee that Nielsen’s
formal complaint would be accepted after the deadline. Nielsen
ultimately submitted his formal EEO complaint on September 28,
8
2010, 35 days after receiving notice of his right to file the
complaint.
The Department dismissed Nielsen’s complaint as untimely,
without considering its merits. The dismissal was based on a
finding that Nielsen had “not provided sufficient evidence to
show that because of [Nielsen’s] workload, death of [Nielsen’s]
mother, or jury duty[,] [Nielsen was] unable to meet the
deadline of September 8, 2010.” Nielsen filed an appeal from
this decision to the EEOC, which affirmed the Department’s
dismissal of the EEO complaint.
Nielsen later filed a pro se action under Title VII in the
district court, alleging that he had suffered from employment
discrimination, and that the Department had failed to follow its
own procedures in processing his EEO complaint. Nielsen’s
pleadings in the district court further alleged that the
Department’s “disturbing number of procedural errors and process
irregularities” prevented Nielsen from properly filing his
discrimination complaint with the Department.
The government filed a motion to dismiss or for summary
judgment. In its motion, the government argued that Title VII
does not authorize a private right of action for irregularities
in the administrative processing of a grievance alleging
employment discrimination, that the Department complied with all
9
relevant procedural regulations, and that Nielsen had failed to
exhaust his administrative remedies.
After a hearing on the motion, the district court
determined that the Department’s email notice of August 24,
2010, was insufficient to qualify as the “final interview”
required by regulation. Concluding that Nielsen had not been
afforded the procedural rights to which he was entitled, the
district court held that the “appropriate way to handle this
case is to remand it back to the [Department’s EEO Programs
Office], [and] let the plaintiff get his interview.” The
district court also held that the mandatory final interview
would afford Nielsen “a new 15-day time period to file his [EEO]
complaint,” and entered an order remanding the matter to the
Department and dismissing Nielsen’s substantive discrimination
claims without prejudice. The government timely appealed.
II.
We first address Nielsen’s argument that we lack
jurisdiction to review the district court’s order because it is
not a “final decision,” within the meaning of 28 U.S.C. § 1291.
Generally, this Court only reviews appeals from “final decisions
of the district courts.” 28 U.S.C. § 1291. However, we also
have jurisdiction to review “collateral” orders that satisfy
three requirements. To qualify as an appealable collateral
10
order, an order must (1) “conclusively determine the disputed
question”; (2) “resolve an important issue completely separate
from the merits of the action”; and (3) be “effectively
unreviewable on appeal from a final judgment.” Stringfellow v.
Concerned Neighbors in Action, 480 U.S. 370, 375 (1987)
(citation omitted); see also Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546–47 (1949).
We have held that the collateral order exception applies to
appeals brought by an agency challenging a district court’s
order that, by its terms, would require the agency to conduct
administrative proceedings under a legal standard with which the
agency disagrees. Shipbuilders Council of Am. v. U.S. Coast
Guard, 578 F.3d 234, 239 (4th Cir. 2009). An order of this
nature compelling agency action under disputed standards
qualifies as a collateral order because it would be “effectively
unreviewable” following a resolution of the merits of the case
on remand. Id. at 240 (quoting W. Va. Highlands Conservancy,
Inc. v. Norton, 343 F.3d 239, 244 (4th Cir. 2003)).
The district court’s order in the present case is analogous
to the effectively unreviewable order in Shipbuilders Council
because, contrary to the Department’s interpretation of its own
EEO procedures, the present order would require the Department
to afford Nielsen additional time to file his formal EEO
complaint. We conclude, therefore, that the present order
11
satisfies all three of the above requirements to qualify as a
reviewable collateral order. See Stringfellow, 480 U.S. at 375;
Shipbuilders Council, 578 F.3d at 240. First, the district
court’s order “conclusively determine[d]” that Nielsen is
entitled to a final interview with an EEO counselor at the
Department. See Stringfellow, 480 U.S. at 375. Second, the
court’s order resets the time allowed to file a formal
employment discrimination complaint with the Department, a
potentially dispositive issue “completely separate from the
merits” of Nielsen’s discrimination claim. See id. And third,
because the Department lacks the ability to appeal from its own
decisions, the district court’s order is “effectively
unreviewable” regarding the actions that the court ordered the
agency to take on remand. See id. Accordingly, we hold that
the district court’s remand order is a collateral order that we
presently have jurisdiction to review.
III.
We turn to consider whether the district court erred by
remanding Nielsen’s administrative complaint to the Department,
and by dismissing without prejudice his substantive
discrimination claims filed in the district court. The
government argues that Nielsen’s allegations of procedural
deficiencies in the administrative EEO process are not
12
cognizable as a “standalone” claim under either the APA or Title
VII. 2 We agree with the government that neither of these sources
of law authorizes the filing of a “standalone” claim challenging
procedural deficiencies in an agency’s handling of an EEO
complaint.
A.
The APA provides for judicial review of “[a]gency action
made reviewable by statute and final agency action for which
there is no other adequate remedy in a court.” 5 U.S.C. § 704.
The portion of Section 704 addressing “final agency action for
which there is no other adequate remedy in a court” is available
only when Congress has not otherwise provided “special and
adequate review procedure[s]” for an agency action. See Bowen
v. Massachusetts, 487 U.S. 879, 903 (1988). The remedy of
judicial review in this part of Section 704 also has been
described as a “default” remedy under the APA. Women’s Equity
2
The government argued in the district court that Nielsen’s
district court complaint alleged only procedural deficiencies
and did not allege a substantive Title VII claim. However,
because the government did not raise this argument in its
opening brief, that argument is waived. See Elderberry of Weber
City, LLC v. Living Ctrs.-Se., Inc., 794 F.3d 406, 415 (4th Cir.
2015). In any event, Nielsen’s pro se complaint, which
discussed the substantive claims in a section titled “Pertinent
Backstories” and attached his substantive claims originally
filed within the Department, should be liberally construed to
include the same substantive Title VII claims alleged in his
administrative complaint. See Kerr v. Marshall Univ. Bd. of
Governors, 824 F.3d 62, 72 (4th Cir. 2016).
13
Action League v. Cavazos, 906 F.2d 742, 750–51 (D.C. Cir. 1990).
This remedy ordinarily is not available when a different statute
provides “an opportunity for de novo district-court review” of
an agency decision. See Garcia v. Vilsack, 563 F.3d 519, 522
(D.C. Cir. 2009) (quoting El Rio Santa Cruz Neighborhood Health
Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1270
(D.C. Cir. 2005)); see also Women’s Equity Action League, 906
F.2d at 750–51.
We conclude that these principles apply irrespective
whether the alleged discriminating entity is a private party or
a governmental agency. As we have explained above, Title VII
provides a private cause of action in district court when a
federal employee is “aggrieved by the final disposition of his
[EEO] complaint.” 42 U.S.C. § 2000e-16(c). Such an employee-
plaintiff is entitled to litigate the civil action de novo in
the district court on his substantive claim of discrimination. 3
See Chandler v. Roudebush, 425 U.S. 840, 861 (1976). Because
3 We disagree with the government’s contention that our
decision in Georator Corp. v. Equal Employment Opportunity
Commission, 592 F.2d 765 (4th Cir. 1979), requires dismissal of
Nielsen’s district court complaint. Our holding in Georator was
based on the finality requirement of Section 704, which is not
at issue in this case. We held that the APA does not permit an
employer to seek review of an EEOC determination that was not a
“final agency action.” See id. at 767–68 (explaining that “[n]o
such finality exists” with respect to the challenged EEOC
determination).
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the agency in a Title VII civil action is not entitled to any
deference to its findings of fact or conclusions of law, see
id., any procedural errors by the agency’s EEO office generally
will have no impact on the de novo district court proceedings,
unless the agency raises a defense that the plaintiff failed to
exhaust administrative remedies. Moreover, in that
circumstance, the agency’s failure to observe its own procedural
requirements will only be relevant to resolution of that
affirmative defense, not to the question whether the plaintiff’s
substantive complaint has merit. We therefore conclude that the
cause of action provided by Title VII afforded Nielsen an
“adequate remedy” of judicial review for his claims of
employment discrimination, thereby precluding judicial review of
the Department’s action under Section 704 of the APA.
B.
Because the APA did not provide the district court
authority to review the Department’s alleged violation of its
own EEO procedures, we next address whether the district court’s
remand directive was an available remedy under Title VII. The
provisions of Title VII authorize a district court to order a
wide range of injunctive relief, but only “[i]f the court finds
that the [employer] has intentionally engaged in or is
intentionally engaging in an unlawful employment practice
charged in the complaint.” 42 U.S.C. § 2000e-5(g)(1); see also
15
id. § 2000e-16(d) (“The provisions of section 2000e-5(f) through
(k) of this title, as applicable, shall govern civil actions
brought [by federal employees].”). Accordingly, we read the
plain language of Title VII as authorizing a district court to
order relief only after a plaintiff has proved a substantive
claim of unlawful discrimination, which did not occur in the
present case.
We additionally conclude that Title VII does not provide an
implied cause of action permitting a plaintiff to challenge
procedural deficiencies in an agency’s handling of an EEO
complaint. As the Seventh Circuit has explained, a federal
employee may only challenge under Title VII an agency’s
disposition of his substantive discrimination complaint. Jordan
v. Summers, 205 F.3d 337, 342 (7th Cir. 2000). Once the
employee files a Title VII action in district court, “any
earlier mishandling [of the administrative complaint] is
essentially moot.” Id. Thus, when there have been procedural
irregularities in an agency’s handling of an employee’s EEO
complaint, the employee does not have a right under Title VII to
file a separate procedural claim, but must seek redress for the
alleged discrimination by filing a substantive claim to be
adjudicated de novo in the district court. See id.; see also
Weick v. O’Keefe, 26 F.3d 467, 471 (4th Cir. 1994).
16
Applying these principles to the present case, we conclude
that the district court lacked authority to remand this matter
to the Department to remedy any procedural deficiencies in the
processing of Nielsen’s administrative complaint. The district
court instead should have proceeded to consider the merits of
Nielsen’s substantive claims of discrimination, as well as any
defenses raised by the government to those substantive claims.
IV.
The government separately argues that the district court
should have dismissed Nielsen’s substantive claims with
prejudice, because Nielsen’s alleged noncompliance with the
Department’s filing deadlines is evidence of his failure to
exhaust his administrative remedies. We decline to decide this
issue in the first instance, which is a defense asserted by the
government in response to the substantive allegations of
Nielsen’s action under Title VII.
We also observe that if the government raises an exhaustion
defense on remand, the issue of the Department’s alleged
mishandling of Nielsen’s complaint will “come to life.”
Georator Corp. v. Equal Emp’t Opportunity Comm’n, 592 F.2d 765,
768 (4th Cir. 1979). Nielsen will be afforded the opportunity
to argue that his formal complaint was timely filed because the
15-day period to file his formal complaint never began to run.
17
See Weick, 26 F.3d at 469–70 (holding that the 15-day period to
file a formal complaint never began to run because the agency’s
failure to follow regulations caused the triggering event not to
occur). And, in the event that the district court determines
that Nielsen’s complaint was not timely filed, the district
court also may consider whether any untimeliness on Nielsen’s
part should be excused on equitable grounds. See id. at 470–71.
V.
For these reasons, we vacate the district court’s judgment,
reinstate Nielsen’s substantive Title VII complaint, and remand
the case for further proceedings consistent with the principles
expressed in this opinion.
VACATED AND REMANDED
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