79 F.3d 154 (D.C. Cir. 1996), 94-5273, Wilson v. Pena

Docket Nº:94-5273.
Citation:79 F.3d 154
Party Name:Herbert K. WILSON, Appellant, v. Federico F. PENA, Secretary, Department of Transportation, Appellee.
Case Date:March 22, 1996
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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79 F.3d 154 (D.C. Cir. 1996)

Herbert K. WILSON, Appellant,

v.

Federico F. PENA, Secretary, Department of Transportation, Appellee.

No. 94-5273.

United States Court of Appeals, District of Columbia Circuit

March 22, 1996

Argued Nov. 3, 1995.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (No. 93cv00421).

Tracy L. Hilmer, Washington, DC, argued the cause, for appellant, with whom Irving Kator was on the brief.

Michael J. Ryan, Assistant United States Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief. John D. Bates, Assistant

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United States Attorney, entered an appearance.

Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

Herbert K. Wilson appeals from the dismissal of his Title VII suit against the Coast Guard. The Equal Employment Opportunity Commission found that the Coast Guard had discriminated against Wilson when it failed to hire him as an equal employment manager and ordered the Coast Guard to instate him in a similar position. Wilson eventually sued in district court, contending that the Coast Guard used an inappropriate performance rating in calculating his backpay award and incorrectly offset income he had earned during the period when the Coast Guard had unlawfully denied him the position. The district court ruled that Wilson was too late on the performance rating issue because he filed his complaint more than 30 days after the EEOC's final action on the issue, and too early on the offset issue because he had not yet exhausted his administrative remedies. Because the EEOC's notice of final action advised Wilson that he had 30 days to file his lawsuit, when he actually had 90 days, the limitations period never began to run; therefore his claim on the performance rating issue was filed in a timely manner. Because the EEOC also failed to respond to Wilson's petition for enforcement within 180 days after it was filed, Wilson was entitled to file suit. Accordingly, we reverse.

I.

Section 717 of the Civil Rights Act, 42 U.S.C. § 2000e-16 (1988 & Supp. V 1993), enacted as part of the Equal Employment Opportunity Act of 1972, Pub.L. No. 92-261, sec. 11, 86 Stat. 103, 111-12, extends Title VII protections to federal government employees. Under § 717(c), a complainant has the right to file a civil action either "[w]ithin 90 days of receipt of notice of final action taken by" the employing agency, or if 180 days have passed since the filing of the complaint and the complainant is aggrieved by the agency's failure to take final action. If the complainant elects instead to appeal the agency's decision to the EEOC, he once again has the right to go to court within 90 days of a final decision by the EEOC or, if the EEOC has taken no action, after 180 days have elapsed. 42 U.S.C. § 2000e-16(c). The limitations period for filing suit was extended from 30 to 90 days by the Civil Rights Act of 1991 and became effective November 21, 1991. Pub.L. No. 102-166, sec. 114, 105 Stat. 1071, 1079.

Whether the statute of limitations ran on the performance rating issue turns on when the EEOC took "final action." We review the factual background in some detail to determine which of three possible events started the statutory clock ticking: the EEOC's initial order of October 29, 1990, finding unlawful discrimination and directing remedial action by the Coast Guard; the Coast Guard's letter of February 14, 1991, informing Wilson of the performance rating that it would use in calculating his backpay award; or the EEOC's decision of August 6, 1992, denying his petition for enforcement. This factual background is also relevant to determining whether the offset issue was premature for failure to exhaust administrative remedies.

In 1984, Wilson applied to the Coast Guard ("the agency") for the position of equal employment manager, at a GM-15 pay grade. After the agency hired another applicant, Wilson began the lengthy administrative process of asserting a Title VII discrimination claim. After the agency's initial decision finding no discrimination was vacated by the Office of Review and Appeals of the EEOC, the agency concluded that Wilson had been the victim of race and sex discrimination but declined to offer Wilson a comparable job because it determined that he would not have been hired even absent the discrimination. Wilson appealed to the EEOC, which found that the agency had failed to meet its burden of showing that Wilson would not have been selected for the position. On October 29, 1990, the EEOC ordered the agency to

place [Wilson] in the disputed position of Equal Employment Manager, GM-15, or a substantially equivalent position, within ninety (90) days of the agency's receipt of

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this decision. The agency is further directed to award appellant appropriate backpay, seniority and any other benefits to which he would have been entitled had he received the disputed position from the date the selectee assumed the position until the time appellant is placed in the position or declines an agency offer for placement in the position. Said backpay shall be computed in the manner prescribed by 5 C.F.R. § 550.805, and shall include any appropriate salary increases based on an assumption of satisfactory work performance. (emphasis added)

The EEOC order notified Wilson that "[t]his decision is final unless a timely request to reopen is filed," and that he could file an action in district court within 30 days "unless within that time you decide to file a request to reopen." Wilson's attorney received the order on November 1, 1990.

The agency offered Wilson a job as Equal Employment Manager, GM-15, which he accepted and began performing on January 28, 1991. Wilson's attorney asked the agency what performance ratings it assumed Wilson would have received had he been employed between 1984 and 1990, because that would determine the amount of merit pay increases he would have accrued and whether he would have been entitled to performance bonuses. The agency's assumption would therefore affect both his backpay award and his current salary. On February 14, 1991, the agency told the attorney that it assumed Wilson would have received "fully satisfactory" ratings, which it considered appropriate under the EEOC's order to assume "satisfactory work performance." By statute, however, the agency was required to have a five-tier rating system for employees in Wilson's grade, in which the middle tier was denominated "fully successful," 5 U.S.C. § 4302a(b)(1) (1988), repealed by Pub.L. No. 103-89, sec. 3(b)(1)(B)(I), 107 Stat. 981 (1993), and the agency did not have a "fully satisfactory" rating. The agency eventually based its salary and backpay calculations on an assumption that Wilson would have received "fully successful" ratings.

On February 20, 1991, Wilson's attorney wrote to the agency that his salary and backpay should be calculated on the basis of "excellent" or "outstanding" performance ratings because the majority of agency employees in Wilson's grade had received one of those two ratings during the period in question. The record does not contain a response from the agency. On April 4, 1991, Wilson's attorney again wrote to the agency, contending that Wilson could be made whole only by receiving the same salary and benefits that other GM-15 employees had received, which would require his receiving presumptive performance ratings on a par with theirs. If the agency refused to calculate the backpay award on the assumption of an "outstanding" rating, Wilson would "need to bring this enforcement issue to the EEOC." On April 19, 1991, the agency reaffirmed its intention to assume only fully successful performance ratings.

Wilson accepted from the agency $165,467.33 in backpay and $32,983.03 in attorney's fees in May 1991. On May 30, 1991, his attorney acknowledged receipt of the check and requested that the agency explain how it had computed the backpay award, including whether the agency had taken any offsets against the award for income that Wilson had earned from other sources between 1984 and 1990. Shortly after the EEOC order, Wilson had provided a description of his "moonlighting" employment and copies of his state and federal tax returns for the backpay period at the agency's request to enable it to calculate offsets. The agency did not respond to the May 30 letter.

On November 1, 1991, Wilson petitioned the EEOC for enforcement of its initial order. He complained that the agency had failed to comply with the order by assuming only "fully successful" performance ratings and deducting from the backpay award income that he would have received even if he had been employed by the agency during the period in question. Although the agency opposed the petition regarding the performance rating issue, it agreed to recalculate his backpay on the basis of a fully-successful performance rating if he would provide certain documentation. Accordingly, the agency told Wilson's attorney that:

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it is necessary for Mr. Wilson to furnish to the Coast Guard a notarized affidavit, signed under penalties of perjury, indicating all gross income he earned for each of the years covered by the backpay award. The affidavit must further indicate the sources of all income and identify and describe those positions that Mr. Wilson held during the period of time covered by the backpay award in which he earned either salaries or wages. In addition, the affidavit should identify each position as being either full-time or part-time, and whether the position involved night or weekend work.

On August 6, 1992,...

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