Rao v. Baker, 88-5205
| Decision Date | 13 March 1990 |
| Docket Number | No. 88-5205,88-5205 |
| Citation | 898 F.2d 191 |
| Parties | 52 Fair Empl.Prac.Cas. 579, 53 Empl. Prac. Dec. P 39,749, 283 U.S.App.D.C. 177, 58 USLW 2635 Dr. G.V.V. RAO, Appellant, v. James A. BAKER, Secretary of State, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Dr. G.V.V. Rao, pro se.
R. Craig Lawrence, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John D. Bates, Asst. U.S. Atty., were on the brief for appellee.
Patricia A. Dunn and Willis J. Goldsmith were on the brief for amicus curiae urging that the District Court decision be affirmed.
Before WALD, Chief Judge, and RUTH BADER GINSBURG and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Appellant, Dr. G.V.V. Rao, initiated an administrative complaint of discrimination with the Agency for International Development ("AID" or "agency"). Upon review, AID found no discrimination, and mailed notice of its decision against Rao to Rao's last known mailing address in Virginia and to his attorney of record. Rao himself was out of the country at the time the notice was mailed. Both Rao's attorney and a friend who was collecting Rao's mail received the notice. Rao's attorney subsequently filed a notice of appeal with the Equal Employment Opportunity Commission ("EEOC" or "Commission").
The issue before us is the timeliness of that appeal. EEOC regulations require a complainant to file a notice of appeal to the Commission within 20 days of "receipt of notice" of the final agency decision. We affirm the district court's decision that Rao's notice of appeal to the EEOC was untimely since it was filed more than 20 days after he had constructively received notice of AID's final decision.
The material facts in this case are simple and undisputed. In the fall of 1983, Dr. G.V.V. Rao was notified by AID that he had not been selected for a general engineer position. He initiated an administrative complaint process with AID by first contacting an Equal Employment Opportunity ("EEO") counselor, and, by subsequently filing a written complaint on June 15, 1984. In that complaint, he alleged that AID's failure to hire him was due to discrimination based on race, color, national origin, and religion. At that time, Rao's attorney entered an appearance on his behalf, advising the agency to address all correspondence regarding the matter directly to her.
On March 18, 1986, AID issued a Notice of Proposed Agency Disposition in Rao's case, proposing a finding against Rao, and alerting Rao that he could request a hearing before the agency issued its final decision. That notice was receipted for by Rao's wife, and a copy was sent to his attorney. Rao himself was apparently never made aware of this Notice, and no request for a hearing was made. In June 1986, AID issued a Notice of Final Agency Decision, and mailed it by registered mail to Rao at his last known address, and to Rao's attorney. Rao himself claims to have been unaware of this notice as well. Several months earlier, he had taken a position in the Philippines, and his wife had recently left this country to join him there. Since the Raos had not yet established a permanent address in the Philippines, they had arranged to have a friend pick up their mail, and to forward important mail to them. They did not notify either AID or their attorney of their move, or of their whereabouts during this transition period, although Rao claims to have attempted to contact his attorney by telephone without success.
The notice of AID's final decision was received by Rao's attorney on June 13, 1986, and was signed for by his friend on June 17, 1986, at the Virginia address Rao had given to the agency. The notice advised Rao of his right to appeal its decision, noting specifically that he had 20 days within which to file a notice of appeal to the EEOC, or 30 days within which to file a civil action in district court.
On July 10, 1986, Rao's attorney did file a notice of appeal with the EEOC on Rao's behalf--27 days after the attorney acknowledged receiving notice and 23 days after Rao's friend had signed for the notice. The EEOC dismissed the appeal as untimely because it had been filed more than 20 days after receipt of the notice, and because Rao had failed to submit adequate justification for extending the filing period beyond 20 days, pursuant to EEOC regulations. Rao then filed a civil action in district court. 1
The district court granted the government's motion for summary judgment, concluding that Rao had constructively received notice of AID's decision when his friend and his attorney received it. Rao v. United States Agency for International Development, Civ. Action No. 87-00021 (D.D.C.1988). The court reasoned that Rao's failure to receive notice himself was due to his failure to maintain contact with his attorney or to notify AID of his change of address. The court also found that Rao's reliance on Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977), was misplaced. In Bell, this court held that the 30-day period for filing a civil action upon receipt of the notice of final agency action was not triggered by receipt of the notice by the claim ant's attorney. The district court believed that Rao's case was distinguishable from Bell. Accordingly, the court concluded that Rao's notice of appeal to the EEOC filed July 10, 1986, was untimely. The court also found that, under the circumstances presented, the EEOC had not abused its discretion in declining to extend the filing period on equitable tolling grounds. We agree with the district court on both issues.
Under Title VII and its implementing regulations, a federal sector complainant can seek review of a final agency decision in three ways. 2 The complainant may go directly to federal court by filing a complaint "[w]ithin 30 days of receipt of notice of final action taken by a[n] agency...." See 42 U.S.C. Sec. 2000e-16(c). Or, a complainant can choose to file an appeal of the agency's final decision with the EEOC, and then subsequently file a civil action within 30 days of final action taken by the Commission. Finally, a complainant may go directly to district court if after 180 days either the agency or the EEOC has not taken final action on the complaint. See 29 C.F.R. Sec. 1613.281.
Pertinent to this case, EEOC regulations require complainants to file an appeal of a final agency decision to the EEOC "at any time up to 20 calendar days after receipt of the agency's notice of final decision on his or her complaint." 29 C.F.R. Sec. 1613.233(a) (emphasis supplied). 3 That regulation does not state whether the notice must be personally received by the plaintiff, or whether receipt by a designated representative triggers the 20-day limitations period. The regulation does, however, allow for equitable tolling of the time limitation under limited circumstances, where, for example, the claimant fails to receive notice due to "circumstances beyond his or her control." 29 C.F.R. Sec. 1613.233(c). 4
This case turns on whether, for purposes of an appeal to the EEOC, actual notice of an agency's final decision to a claimant in Rao's position is compelled by the statutory and regulatory scheme and purpose, or whether Rao can be charged with constructive notice of AID's decision. We believe that Rao must be charged with constructive notice. We turn first to the issue of receipt of the notice by Rao's attorney and at Rao's last known address. We will then address his claim that the 20-day period should have been equitably tolled.
Rao argues that he should not be charged with constructive notice from the date his attorney received notice because of the principles espoused by this court in Bell v. Brown, 557 F.2d 849 (D.C.Cir.1977). In Bell, a divided panel of this court held that notice received by Bell's attorney did not trigger the 30-day time period prescribed by statute within which he had to file a civil suit. See 42 U.S.C Sec. 2000e-16(c). 5 Bell has been described as establishing a bright line rule that federal employees are entitled to actual notice of agencies' decisions for purposes of the 30-day deadline for filing suit under 42 U.S.C. Sec. 2000e-16(c). See Josiah-Faeduwor v. Communications Satellite Corp., 785 F.2d 344, 346 (D.C.Cir.1986) (per curiam). 6 Despite the broad language used by the court in Bell and in Josiah-Faeduwor in dicta, however, we agree with the district court that Bell does not control this federal sector case, and we decline to extend it to apply to these circumstances.
We choose not to extend Bell 's actual notice rule because this case differs from Bell in four significant aspects: (1) Rao was appealing here to the EEOC under a 20-day time limit established by the EEOC's own regulation, not pursuant to a statutory deadline as in Bell, and under principles adhered to in Bell, we defer to the EEOC's interpretation of its own regulations; (2) the EEOC's regulatory scheme of which the 20-day deadline is a part, has been substantially changed since Bell was decided; (3) unlike Bell, Rao had an ongoing attorney-client relationship with his lawyer at the time the notice was mailed to her; and, (4) again, contrary to Bell, the person designated to collect Rao's mail receipted for notice at the address which Rao had given the agency.
1. The EEOC Regulation. Although the language in Bell may be broad enough to encompass all time limits for all Title VII suits where the government is the employer, that case did not explicitly address the time limit here in question--the one established by the EEOC in 29 C.F.R. Sec. 1613.233(a). While the difference in the status of the provision at issue--regulation versus statute--may not always be dispositive on whether to extend a prior interpretation of one to the other, see, e.g., Mondy v. Secretary of the Army, 845...
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