Nealon v. Stone
| Decision Date | 02 March 1992 |
| Docket Number | No. 91-2347,91-2347 |
| Citation | 958 F.2d 584 |
| Parties | 59 Fair Empl.Prac.Cas. (BNA) 1118, 58 Empl. Prac. Dec. P 41,504, 121 Lab.Cas. P 35,645, 123 Lab.Cas. P 35,722, 1 Wage & Hour Cas.2d (BNA) 29 Margaret NEALON, Plaintiff-Appellant, v. Michael P.W. STONE, Secretary of the Army, Clarence Thomas, Chairman, Equal Opportunity Commission, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George Michael Chuzi, Kilijarvi & Chuzi, P.C., Washington, D.C., argued, for plaintiff-appellant.
Mortimer C. Shea, Jr., Office of the Judge Advocate General, U.S. Army, Arlington, Va., argued (Henry E. Hudson, U.S. Atty., George M. Kelley, III, Norfolk, Va., on brief), for Michael P.W. Stone.
Susan Lisabeth Starr, E.E.O.C., Washington, D.C., argued (Donald R. Livingston, Acting Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Carolyn L. Wheeler, Asst. Gen. Counsel, E.E.O.C., on brief), for E.E.O.C.
Before ERVIN, Chief Judge, TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation, and HERLONG, United States District Judge for the District of South Carolina, sitting by designation.
Margaret Nealon filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) contending that the U.S. Army had violated her rights under the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq. (1988) (EPA), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988), by paying her a lower salary than a man who performed similar work. The EEOC initially found that there was reasonable cause to believe that the Army discriminated against her ("EEOC I"), but erroneously applied private sector procedures for the public sector charge. The EEOC reversed its position twenty months later ("EEOC II"), finding that Nealon's charge of discrimination lacked reasonable cause. Nealon then brought this suit in the Eastern District of Virginia under the EPA and Title VII seeking either to enforce the initial EEOC reasonable cause findings or, alternatively, to bring both EPA and Title VII claims de novo. The district court refused to enforce EEOC I and dismissed the action on the grounds that the statute of limitations barred Nealon's EPA claim and failure to exhaust administrative remedies barred her Title VII claims. We affirm the district court's holding that EEOC I did not become enforceable and that Nealon's Title VII discrimination claim is barred by her failure to exhaust administrative remedies. We reverse with respect to Nealon's Title VII retaliation claim, however, as she need not exhaust administrative remedies to pursue it. Furthermore, we hold that Nealon's EPA claim is not time-barred both because she alleges a continuing violation and the apparently favorable EEOC I decision equitably tolled the EPA.
Plaintiff-appellant Margaret Nealon is a female civilian employee of the U.S. Army. She was temporarily assigned as Chief of the Editing Branch, Army Extension Training Directorate ("Directorate"), Army Training and Support Center, U.S. Army Training and Doctrine Command (TRADOC) in April 1981 and was permanently assigned to this position in December 1983. Nealon alleges that the Editing Branch is equivalent to the Design Branch within the Directorate's Literature Division. The Design Branch Chief, a man, has always been graded at least at the GM-13 level, while Nealon has never been paid higher than a GS-12 salary. She argues that this differential is discriminatory.
The classification of her position has met with some confusion. The Civilian Personnel Office (CPO) graded Nealon's job as GS-13 in November 1982 but later reversed its position, changing the job's grade back to GS-12 in September 1983. In January 1984, a contract classification specialist graded her job at GS-13. In November 1984, CPO permanently classified the job as GS-12, and Nealon received official notice of this classification on December 23, 1984.
Nealon first protested the classification decision through internal procedures. On January 4, 1985, she filed a written appeal of the classification to the CPO pro se, alleging violation of "the Equal Pay Act that states that males and females having like duties and responsibilities should also have equal pay." The CPO rejected her appeal in February 1985. In March 1985, Nealon contacted the Fort Eustis and TRADOC Offices of Equal Employment Opportunity (EEO); both informed her that they lacked jurisdiction over an Equal Pay Act violation, and neither they nor the CPO advised Nealon that a Title VII claim was proper on the allegations. Nealon also unsuccessfully appealed to the Office of Personnel Management (OPM) and the Merit Systems Protection Board. Thereafter, Nealon learned that she should file a charge with the EEOC, and she filed a charge under both the EPA and Title VII on August 16, 1985.
The EEOC investigated between March 1986 and March 1987, obtaining statements from Nealon; the higher paid Design Chief; the division chief; and Nealon's former supervisors, who all agreed that the positions were the same and deserved the same pay. On October 7, 1987, the EEOC's Baltimore Regional Office issued its decision on Nealon's EPA complaint ("EEOC I"), finding that there was "reasonable cause to believe the [Army] has engaged in an unlawful employment practice in violation of the Equal Pay Act." Ten months later, on August 24, 1988, the Army requested that the EEOC reconsider its decision. In September 1988, the EEOC reopened the case, apparently based on the uncontroverted fact that it used the procedures for private, not public, employers in processing Nealon's administrative claim. On June 30, 1989, twenty months after EEOC I, the EEOC concluded that the same evidence it examined before did not warrant a finding of a reasonable cause of discrimination ("EEOC II").
Nealon brought suit in federal district court on July 21, 1989, requesting enforcement of EEOC I or de novo findings of EPA and Title VII violations, including a retaliation claim. The district court denied enforcement of the EEOC I decision on the ground that such enforcement was inappropriate because the EEOC had processed the claim incorrectly. The court also dismissed the Title VII discrimination claim on the ground that Nealon failed to exhaust her administrative remedies because she did not contact an EEO counselor within the requisite thirty-day period. In addition, the court held that the Title VII retaliation claim was barred for failure to exhaust administrative remedies. Finally, the court dismissed the EPA claim on the ground that the applicable three-year statute of limitations period had run. Nealon timely appealed.
On appeal, Nealon first argues that the passage of time converted EEOC I into a final, binding order which the district court should have enforced. In support of her argument, Nealon relies on the District Court for the District of Columbia's opinion, Gubisch v. Brady, 50 Empl.Prac.Dec. (CCH) Para. 39,183, 1989 WL 44083, 1989 U.S.Dist. LEXIS 4317 (D.D.C.1989). 1 In Gubisch, the EEOC found that the agency discriminated against the plaintiff and issued a compliance order, but reversed itself sixteen months later. Despite the reversal, the district court enforced the original EEOC order because more than "a short and reasonable time" had passed. 1989 WL 44083, at *10, 1989 U.S.Dist. LEXIS 4317, at
The court held that after a period measured in weeks rather than years, agency decisions become final and no longer subject to agency reversal.
We decline to apply Gubisch to the facts of this case. In Gubisch, the discrimination finding and compliance order were properly issued. In the case at bar, however, the issuance of the order was marred by application of procedures for private rather than public employers. We disagree with Nealon's contention that the public and private procedures are virtually equivalent. Under the procedures applicable to private employers, inadvertently used for Nealon, when the EEOC finds reasonable cause of discrimination, either side can litigate the claim de novo in district court. 42 U.S.C. § 2000e-5; 29 C.F.R. § 1601. When the EEOC finds discrimination pursuant to the EPA in a public sector case, it issues a compliance order that is enforceable against the agency. FPM Ltr. No. 551-9(5); MD 107(1.4) (1987). Here, use of the wrong procedures denied the Army the ability to timely appeal the reasonable cause finding to the EEOC. That denial may well have prejudiced the Army in this case, and thus in this case the procedures were materially different.
Nealon argues alternatively that, even if the two procedures have significant differences, the passage of more than reasonable time eliminates the EEOC's opportunity to rectify its admitted procedural error. See Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C.Cir.1977) (); Gubisch, 1989 WL 44083, 1989 U.S.Dist. LEXIS 4317; see also Dawson v. Merit Systems Protection Board, 712 F.2d 264, 267 (7th Cir.1983) (). However, the passage of time simply does not, and cannot, transform a reasonable cause determination into a final compliance order. 2 We therefore affirm the district court's dismissal of Nealon's attempted enforcement of EEOC I as a final compliance order.
Nealon next argues that if EEOC I did not become binding on the Army, she should be able to pursue her Title VII discrimination and retaliation claims de novo in district court.
The district court below dismissed Nealon's Title VII discrimination claim because she did not contact the Army's EEO counselor within thirty days of the incident giving rise to the complaint....
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