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McGary v. Crowley

United States District Court, District of Columbia

July 20, 2017

THEODORE McGARY, Plaintiff,
v.
SHEILA CROWLEY, Acting Director of the Peace Corps, Defendant.

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS United States District Judge

         Plaintiff Theodore McGary prevailed against his former employer, the Peace Corps, in proceedings before the Equal Employment Opportunity Commission (“EEOC”). The EEOC determined that the Peace Corps's decision to fire McGary was motivated by unlawful retaliatory animus, and it awarded him relief including damages, attorney's fees, and back pay with interest. See McGary v. Vasquez, EEOC Appeal No. 0720060027, 2007 WL 788295, at *4, *6-7 (Mar. 7, 2007) [hereinafter EEOC Merits Decision]. McGary ultimately collected more than $450, 000. See McGary v. Williams, EEOC Appeal No. 0120111792, 2012 WL 3878944, at *8 (Aug. 21, 2012); Dkt. 14-3 at 2.

         Dissatisfied with that outcome, McGary brings this pro se civil action to relitigate his claims. See McGary v. Hessler-Radelet (“McGary I”), 156 F.Supp.3d 28, 36 (D.D.C. 2016). The question is whether he filed his complaint too late. Under Title VII of the Civil Rights Act of 1964, a federal employee who has been “aggrieved by the [EEOC's] final disposition of his complaint” may press his claims in federal court-but only “[w]ithin 90 days of receipt of notice of [the EEOC's] final action.” 42 U.S.C. § 2000e-16(c). Here, 102 days elapsed between the EEOC's final decision on April 26, 2013, and McGary's filing of this lawsuit on August 6, 2013. See McGary v. Williams, EEOC Req. No. 0520130013, 2013 WL 1856740 (Apr. 26, 2013) [hereinafter Final EEOC Decision]; Dkt. 1 at 1. The Court therefore authorized limited discovery into whether McGary was in “receipt of notice” of the EEOC's decision as of the critical date of May 8, 2013. See Minute Order of Mar. 7, 2016.

         The Peace Corps has now moved for summary judgment on the ground that McGary filed his lawsuit more than 90 days after his “receipt of notice.” Dkt. 42. The record, however, does not reveal precisely when McGary actually received the notice. And it is undisputed that the EEOC mailed its final decision only to McGary's prior residence in Fredericksburg, Virginia- despite knowing that McGary had since moved to the U.S. naval base in Yokosuka, Japan, and despite the EEOC's prior practice of mailing notices to McGary's address in Japan. McGary posits that, given the logistics of forwarding his mail from Virginia to Japan, he would not have received the notice of final agency action before the relevant date.

         As explained below, the Peace Corps has failed to shoulder its burden of demonstrating by uncontroverted evidence that McGary received notice before May 8, 2013. In the alternative, moreover, McGary has adduced sufficient facts to permit the reasonable conclusion that his 90-day deadline to sue should be equitably tolled in light of the EEOC's failure to send the notice to McGary's residence in Japan. The Court, accordingly, DENIES the Peace Corps's motion.

         I. BACKGROUND

         McGary has been litigating this case against the Peace Corps for almost seventeen years. In August 2000, McGary, then a Peace Corps employee, invoked the agency's equal employment opportunity (“EEO”) counseling process, arguing that the Peace Corps declined to grant him a wage increase because of his race. See EEOC Merits Decision, 2007 WL 788295, at *1-2. In September 2000, the Peace Corps issued McGary a reprimand that ultimately led to his dismissal. Id. at *1. By November 2000, McGary had filed one or more formal EEO complaints re-asserting his earlier claim and further alleging that the reprimand was the product of both racial discrimination and unlawful retaliation for his EEO activity. Id. In September 2005, an EEOC administrative law judge rejected the discrimination claims but found that McGary was the victim of unlawful retaliation. Id. at *1-2. The EEOC affirmed that judgment in March 2007. Id. at *6-7. The parties then spent the next six years litigating the details of the remedy and the Peace Corps's compliance with the EEOC's order. See generally Final EEOC Decision, 2013 WL 1856740, at *2-3.

         In May 2012-while the EEOC proceedings were ongoing-McGary relocated from Fredericksburg, Virginia, to the U.S. naval base in Yokosuka, Japan. Dkt. 42-2 at 12; Dkt. 46 at 26 (McGary Aff.). The record does not reflect whether McGary's contact information on file with the EEOC was ever officially updated (and, indeed, neither party has proffered a copy of the EEOC's docket or any other evidence of the EEOC's internal designation of McGary's address of record). But when the EEOC issued its next decision in McGary's case in August 2012, it mailed copies of that decision to McGary at both his Virginia address and his Japanese one. Compare Dkt. 42-2 at 14 (listing McGary's Japanese address) with Dkt. 13 at 51 (EEOC certificate of mailing to that address). McGary thereafter continued to correspond with the EEOC from Japan, see Dkt. 42-2 at 14, and the EEOC continued to send documents exclusively to McGary's Japanese address, see Dkt. 43 at 25-27.

         On April 26, 2013, the EEOC issued its final decision in McGary's case. See Final EEOC Decision, 2013 WL 1856740. That decision contained the following paragraph:

         COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no f[u]rther right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.

Id. at *5 (bold and underlining in original). Neither party has submitted a copy of the certificate of mailing, which would have identified the date the decision was actually mailed and the address or addresses to which it was sent. Cf. Dkt. 13 at 51. And, significantly, the Peace Corps “ha[s] no personal direct knowledge” of whether or not the EEOC mailed its final decision to Japan. Dkt. 42-1 at 4. As a result, the only account of how the EEOC served its decision is McGary's own testimony.

         According to McGary, the EEOC mailed its final decision to his house in Virginia, but not to his residence in Japan. Dkt. 46 at 26 (McGary Aff.). At the time, the Virginia house was vacant and uninhabitable due to water damage from flooding. Dkt. 42-2 at 12 (McGary Interr. Resp. No. 2(a)). McGary's estranged wife lived nearby, however, where she was undergoing treatment for cancer. Id. at 12-13 (McGary Interr. Resp. No. 2(b)). At some point, although McGary is unsure when, McGary's wife visited the Virginia house, found the EEOC's decision in the mail, and forwarded it to McGary in Japan. Id. McGary does not remember the exact date on which he received the forwarded copy, but he believes it arrived “sometime in May or June 2013.” Id. at 13 (McGary Interr. Resp. No. 2(c)). He further attests that, “because the notice had to be processed through two postal systems, the U.S. Post Office in the U.S., and the U.S. Navy Postal system in Japan, ” the EEOC's final decision “would not have reached the U.S. Navy post office in Yokosuka earlier than May 9, 2013.” Dkt. 46 at 26-27 (McGary Aff.).

         On August 6, 2013, McGary filed the instant lawsuit. Dkt. 1 at 1. McGary's statutory deadline for filing was 90 days after his “receipt of notice” of the EEOC's final decision. See 42 U.S.C. § 2000e-16(c). Accordingly, if McGary was not “[in] receipt of notice” before May 8, 2013, McGary satisfied the deadline. But if he was “[in] ...


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