Butler v. West

• Decision Date: 08 January 1999
• Docket Number: No. 97-5348,97-5348
• Citation: 164 F.3d 634
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1353, 334 U.S.App.D.C. 55 Darlene BUTLER, Appellant, v. Togo D. WEST, Jr., Secretary, Department of the Army, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 634

164 F.3d 634

78 Fair Empl.Prac.Cas. (BNA) 1353, 334

U.S.App.D.C. 55

Darlene BUTLER, Appellant, v. Togo D. WEST, Jr., Secretary, Department of the Army, Appellee.

No. 97-5348.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 5, 1998.

Decided Jan. 8, 1999.

Appeal from the United States District Court for the District of Columbia (No. 94cv02182).

James L. Kestell argued the cause and filed the briefs for appellant.

Michael J. Ryan, Assistant United States Attorney, argued the cause for appellee. On the brief were Wilma A. Lewis, United States Attorney, R. Craig Lawrence, Assistant United States Attorney, and Paige E. Harrison, Special Assistant United States Attorney. Gregory W. Addington, Assistant United States Attorney, entered an appearance.

Before: WALD, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Darlene Butler ("Butler" or "appellant") brings this appeal challenging two rulings by the district court that, taken together, dismissed the entirety of her suit against Togo West, the Secretary of the Army ("appellee"). Prior to her December 11, 1992 removal for insubordination and creating a disturbance, Butler had worked for several years in the Civilian Personnel Office at Walter Reed Army Medical Center in Washington, D.C. ("Walter Reed"). After Equal Employment Opportunity ("EEO") administrative proceedings proved ineffectual, appellant filed a mixed case appeal with the Merit Systems Protection Board ("MSPB" or the "Board") alleging that her removal violated the Civil Service Reform Act of 1978 ("CSRA" or the "Act"), Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in sections of 5 U.S.C. (1996)), and was motivated by discriminatory animus. The MSPB Administrative Judge's Initial Decision upheld the Army's allegations of insubordination, but mitigated the punishment to a thirty-day suspension and ordered appellant's reinstatement with back pay. The Army petitioned the full Board for review, and Butler filed a cross petition challenging the thirty-day suspension. Subsequently, Butler filed this complaint with the United States District Court for the District of Columbia, suing Togo West in his official capacity and broadly alleging unlawful discrimination in her removal. On defendant's motion, the district court dismissed Butler's Title VII and retaliation claims for failure to exhaust administrative remedies. Following defendant's motion to reconsider retention of her First Amendment claim, the district court dismissed that as well. We find that the district court improperly narrowed the window for filing suit available under 5 U.S.C. § 7702(e)(1)(B), which explicitly allows all of appellant's claims, and accordingly vacate the dismissal and remand for further proceedings.

I.

The procedural history of this case is convoluted but the controlling legal question is time-specific; consequently, we discuss only those facts necessary to our decision.

On December 11, 1992, the Department of the Army removed Darlene Butler from her position as a GS-11 Position Classification Specialist for insubordination and creating a disturbance. Butler, an African-American woman, had begun to have problems at work roughly two years earlier, following her October 15, 1990 reassignment from the Position Management and Classification Division at Walter Reed to the Recruitment and Placement Division, Special Action Branch. Prior to her termination, she had initiated EEO counseling on four separate occasions--in December of 1991, April of 1992, January of 1993, and either February or March of 1993. ¹ Following each episode she filed a formal EEO complaint alleging both racial discrimination and retaliation in various terms and conditions of her employment. In each instance, an Army investigator and an Equal Employment Opportunity Commission ("EEOC") Administrative Judge recommended a finding of "no discrimination," and the Department of the Army ("Army") adopted their recommendations on June 15, 1994.

Following her removal in December of 1992, which she attributed to discriminatory animus and hostility towards her recent election as an officer of a newly-formed chapter of Blacks in Government ("BIG"), Butler again pursued the necessary administrative procedures with the Army. She timely sought EEO counseling, and then filed a formal complaint with the Equal Employment Opportunity Office at Walter Reed in which she alleged that her termination was a product of racial discrimination. The Department of Defense Office of Complaint Investigations recommended a finding of "no discrimination" on December 10, 1993. Butler then filed a "mixed case appeal" ² with the MSPB on April 5, 1994, challenging her removal as both procedurally improper ³ and discriminatorily motivated. On August 3, 1994, exactly 120 days after Butler lodged her appeal, an MSPB Administrative Judge ("AJ") issued an Initial Decision which held that: (i) the Army had carried its burden of showing that appellant had been insubordinate and had created a disturbance; (ii) the resulting disciplinary action promoted the efficiency of the agency as required by 5 U.S.C. § 7513(a) ⁴; (iii) the procedural errors made in removing the appellant were harmless; (iv) Butler failed to make out her affirmative defenses of retaliation and discrimination; and (v) that the removal penalty was unreasonable. Accordingly, the AJ mitigated her removal to a thirty-day suspension and ordered back pay with interest. The Army petitioned the MSPB to review this penalty reduction within the thirty-five-day period provided for by the MSPB's regulations, see 5 C.F.R. § 1201.114(d), and appellant filed a cross petition addressing only her nondiscrimination claim of procedural irregularities.

On October 11, 1994, while the cross petitions were pending before the MSPB, appellant filed this action in the United States District Court for the District of Columbia, naming Togo West, in his official capacity as the Secretary of the Army, as defendant. Butler's complaint contained three counts, alleging racial discrimination, retaliation, and a violation of her First Amendment rights to free speech and association. Subsequently, on December 21, 1994, the MSPB denied both petitions for review and the AJ's Initial Decision became final. See 5 C.F.R. § 1201.113(b) ("If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review."). In March of 1995, the appellee moved to dismiss Butler's lawsuit under Rule 12(b) of the Federal Rules of Civil Procedure or, in the alternative for summary judgment, alleging that Butler filed her complaint prematurely as the MSPB had not yet issued a final decision. The district court dismissed appellant's discrimination claims as untimely in a February 14, 1997 Memorandum Opinion, reasoning that Butler had failed to exhaust available administrative remedies under the CSRA prior to filing suit. While the court originally held that she had stated a timely First Amendment claim independent from her Title VII action, a November 12, 1997 Memorandum Opinion and Order granted the defendant's motion for reconsideration and dismissed Butler's First Amendment claim as equally untimely under the CSRA.

Recognizing that it faced a question of first impression, the district court found that appellant filed her suit at a time when the court lacked jurisdiction to hear her complaint. Although section 7702(e)(1)(B) states that an individual claiming discrimination shall be entitled to file a civil action if there is no judicially reviewable action within 120 days following the filing of an appeal with the MSPB, the court held that an initial decision by the AJ within that period is sufficient to foreclose immediate access to the federal courts. For purposes of section 7702(e)(1)(B), it ruled, "[a]n initial decision is essentially the same as a final decision...." Butler v. West, No. 94-2182 at 7 (D.D.C. Feb. 14, 1997) ("Butler I").

The court articulated three separate grounds for this conclusion: First, it reasoned that an initial decision and a final decision are functionally indistinguishable, as the former automatically converts into the latter provided that neither party (nor the MSPB on its own motion) seeks further Board review. Second, it noted that 29 C.F.R. § 1614.310(h) authorizes an individual with a mixed case to file a civil action "[a]fter 120 days from the date of filing an appeal with the MSPB if the MSPB has not yet made a decision" (emphasis added). Since the EEOC refers to a final decision in other subsections of 29 C.F.R. § 1614.310, the court concluded that the EEOC's use of the more general term decision in section 1614.310(h) signals an intent that any MSPB decision--initial or final--should foreclose judicial review. Finally, the court reasoned that any other reading of section 7702(e)(1)(B) would lead to absurd results that defied the purpose of the statute, since it necessarily takes more than 120 days for the MSPB fully to process most claims before it. Were a prospective plaintiff allowed to proceed in district court whenever the Board failed to meet that deadline, the statutory requirement of MSPB participation would be rendered meaningless.

According to the district court, appellant should have followed the alternative avenue into the federal courts provided by 5 U.S.C. § 7703(b), which allows a civil suit to be filed within thirty days of a final MSPB decision. Since Butler neither refiled her suit nor moved to amend her complaint within the thirty-day period following December 21, 1994, the date on which the Initial Decision became final, her complaint was untimely. In this appeal, Butler challenges the district court's construction of the relevant statutory provisions, arguing that her suit was timely under 5 U.S.C. § 7702(e)(1) as the MSPB had failed...