Nielsen v. Hagel

• Decision Date: 15 November 2016
• Docket Number: No. 14-1646,14-1646
• Parties: WALTER NIELSEN, Plaintiff - Appellee, v. CHUCK HAGEL, Secretary of Defense, Pentagon, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

WALTER NIELSEN, Plaintiff - Appellee, v. CHUCK HAGEL, Secretary of Defense, Pentagon, Defendant - Appellant.

No. 14-1646

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 20, 2016

November 15, 2016

UNPUBLISHED

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)

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Vacated and remanded by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.

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 complaintunder 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 theaggrieved 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 finaldecision. 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 agreedto 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 hasnot 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 28,2010, 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...