United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS United States District Judge
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.
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.
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.
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
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,
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.
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:
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
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.
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.).
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] ...