Frederick Schlottman v. Thomas Perez

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2013 Decided January 3, 2014
No. 12-5132
FREDERICK SCHLOTTMAN,
APPELLANT
v.
THOMAS E. PEREZ, SECRETARY, U.S. DEPARTMENT OF LABOR,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00752)
George M. Chuzi argued the cause and filed the briefs for
appellant.
Javier M. Guzman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
Before: TATEL, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Because the federal government’s
administrative procedures for resolving complaints of
discrimination are complex and confusing, individuals
sometimes file their complaints with the wrong agency. In an
effort to deal with this problem, Congress adopted a savings
clause: “[i]n any case in which an employee is required to file
any action . . . under this section and the employee timely
files the action . . . with an agency other than the agency with
which the action . . . is to be filed, the employee shall be
treated as having timely filed the action . . . as of the date it is
filed with the proper agency.” 5 U.S.C. § 7702(f) (emphasis
added). So how does this provision apply where, as here, the
complainant initiates an action before the wrong agency—
timely according to the rules of that agency but untimely
according to the rules of the proper agency? Because we
understand that the savings clause measures timeliness with
respect to the deadlines for filing with the proper agency, we
affirm the district court’s dismissal of the complaint.
I.
In July 2008, Appellant Frederick Schlottman, a
probationary employee serving as a legislative analyst at the
Department of Labor (DOL), wrote a letter to his second-level
supervisor alleging that his Division Chief, Priscilla Johnson,
was “harassing him and creating a hostile work environment.”
Compl. ¶ 8. Two months later, Schlottman authored a report
that criticized Johnson’s performance. On January 15, 2009,
Schlottman was fired for unsatisfactory performance,
effective January 31, 2009.
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Schlottman believes that DOL fired him in retaliation for
his criticism of Johnson and discriminated against him on the
basis of “age, disability, sex and ‘EEO [Equal Employment
Opportunity] whistleblower’ reprisal.” Appellant’s Br. 6. A
probationary employee like Schlottman has three avenues
through which to pursue such claims. First, to challenge a
termination based on discrimination or retaliation in violation
of Title VII, 42 U.S.C. § 2000e-16, he may pursue an EEO
claim with his employing agency. See 29 C.F.R. pt. 1614
(describing procedures for raising EEO claim) (“the EEO
route”). Second, if he believes that his termination was also
based on marital status or political affiliation, he may directly
appeal his termination to the Merit Systems Protection Board
(MSPB). See 5 C.F.R. § 315.806(b), (d) (“the MSPB route”).
In pursuing a discrimination claim, however, he may not
proceed down the EEO and MSPB routes simultaneously.
Instead, whichever route he formally initiates first “shall be
considered an election to proceed in that forum.” 29 C.F.R. §
1614.302(b). Third, to challenge his termination under the
Whistleblower Protection Act, Pub. L. No. 101-12, 103 Stat.
16 (1989) (codified in scattered sections of 5 U.S.C.)
(“WPA”), the probationary employee must first file a
complaint with the Office of Special Counsel (OSC) and may
then appeal to the MSPB. See 5 U.S.C. §§ 1214(a)(3),
1221(b) (“the whistleblower route”).
These administrative pathways impose different
deadlines. Under the EEO route, the individual must file a
formal Title VII complaint within fifteen days of being
notified of his right to do so. See 29 C.F.R. § 1614.106(b).
Under the MSPB route, he must file his direct appeal within
thirty days of the effective date of termination. See 5 C.F.R. §
4
1201.154(a). Under the whistleblower route, he must first file
a complaint with the OSC. See 5 U.S.C. § 1214(a)(3). If the
OSC dismisses the complaint, the individual must file an
appeal—known as an Individual Right of Action (IRA)—with
the MSPB within 65 days of the OSC issuing its written
notification of the dismissal. See 5 C.F.R. § 1209.5(a)(1).
As the timeline on the following page demonstrates,
Schlottman’s effort to navigate these Rube Goldberg-like
procedures began on January 31, 2009 when he initiated the
whistleblower route by filing a complaint with the OSC. Four
days later, on February 4, Schlottman initiated the EEO route
by contacting an EEO counselor at DOL. The OSC dismissed
Schlottman’s whistleblower complaint on April 6, citing his
failure to allege a violation of the Whistleblower Protection
Act. Then, on May 1, the EEO counselor notified Schlottman
of his right to file a formal EEO complaint within fifteen
days. Significantly for this case, however, Schlottman chose
not to file a formal EEO complaint within this time period,
opting instead to pursue the whistleblower route by filing an
appeal with the MSPB on June 4. His appeal had two
components: (1) a direct appeal alleging retaliation in
violation of Title VII and discrimination based on marital
status or political affiliation, and (2) an IRA. See 5 U.S.C.
1221(a) (providing for Individual Right of Action in
whistleblower reprisal cases). Why Schlottman chose to raise
his Title VII claim before the MSPB is unclear, especially
since he tells us that his allegation of discrimination based on
marital status or political affiliation (a prerequisite for filing
with the MSPB) was “inadvertent[].” Appellant’s Br. 8 n.1.
5
Figure 1: Timeline of Schlottman’s Administrative Actions
Options & Deadlines for Filing a Title VII Claim (Probationary Employees)
EEO Route (if alleging Title File formal complaint directly with agency within 15
VII discrimination) days of being notified of right—here, May 16, 2009
MSPB Route (if alleging File direct appeal with MSPB within 30 days of
both marital/political + effective date of termination—here March 2, 2009
Title VII discrimination)
SCHLOTTMAN’S ADMINISTRATIVE ACTIONS
Jan. 31, Schlottman’s term as probationary employee effectively
2009 terminated. He appealed termination using two routes.
EEO ROUTE WHISTLEBLOWER/MSPB ROUTE
Feb. 4, Schlottman began Jan. 31, Schlottman filed
2009 informal EEO counseling 2009 whistleblower complaint
with DOL, alleging with OSC
discrimination on basis Apr. 6, OSC dismissed complaint
of sex, age, disability, 2009 for failure to allege
and “EEO violation of WPA.
Whistleblower” reprisal Deadline for appeal: 65
days from date of notice.
May 1, Schlottman received
June 4, Schlottman appealed
2009 notice of right to file
2009 dismissal to MSPB in two
formal EEO complaint
parts: 1) direct appeal of
within 15 days
marital/political and Title
Sept. Schlottman filed formal VII discrimination, 2) IRA
17, EEO complaint with DOL of OSC’s dismissal of
2009 whistleblower claim
Oct. Schlottman received DOL Sept. 23, MSPB dismissed IRA for
29, decision dismissing EEO 2009 lack of jurisdiction but
2009 complaint as untimely did not address the
Nov. Schlottman appealed direct appeal. MSPB
20, dismissal to EEOC, which advised Schlottman of
2009 denied both the appeal two options for appeal,
and reconsideration. and he took neither.
The MSPB dismissed Schlottman’s IRA for lack of
jurisdiction, made no mention of his direct Title VII appeal,
and informed him that he could appeal the Board’s decision in
one of two ways. Pursuing neither option, Schlottman
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returned to the EEO route, in which he had received his 15-
day right-to-file notice on May 1. Well outside this
timeframe, on September 17, Schlottman filed a formal EEO
complaint with DOL. DOL dismissed the complaint as
untimely, and Schlottman appealed to the EEOC, which
denied the appeal and later denied Schlottman’s motion for
reconsideration.
Schlottman then filed a Title VII action in district court.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the
government moved to dismiss for failure to exhaust
administrative remedies. Specifically, the government argued
that Schlottman’s “claims were not preserved by the savings
clause because the appeal was not timely.” See Schlottman v.
Solis, 845 F. Supp. 2d 107, 110 (D.D.C. 2012). In response,
Schlottman argued that his formal EEO complaint should be
deemed timely pursuant to the savings clause set forth in 5
U.S.C. § 7702(f). Under that clause, which applies to “mixed
cases” that involve adverse personnel actions appealable to
the MSPB and that also include allegations of discrimination,
if an “employee timely files the action, appeal, or petition
with an agency other than the agency with which the action,
appeal, or petition is to be filed, the employee shall be treated
as having timely filed the action, appeal, or petition as of the
date it is filed with the proper agency.” 5 U.S.C. § 7702(f).
According to Schlottman, the clause saved his claim because
he filed a “mixed case appeal” with the MSPB on June 4,
2009, well within 65 days of the OSC’s April 6 notice that it
was dismissing his whistleblower complaint. See 5 C.F.R. §
1209.5(a)(1) (specifying deadline for appealing OSC
dismissal). The district court granted the government’s motion
to dismiss, concluding both that Schlottman’s whistleblower
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complaint did not qualify as a “mixed case” complaint
capable of triggering the savings clause, see Schlottman, 845
F. Supp. 2d at 111 n.6, and that, even if it did, “the savings
provision does not apply because . . . neither [Schlottman’s]
appeal to the MSPB nor his appeal to the EEOC was timely
filed,” id. at 111.
Schlottman appeals. We review de novo a dismissal for
failure to state a claim. Jones v. Horne, 634 F.3d 588, 595
(D.C. Cir. 2011).
II.
The crux of Schlottman’s argument is that even though
he presented his Title VII claim in the wrong forum (the
MSPB), because he did so along with a timely filed IRA as
part of a “mixed case,” his formal EEO complaint should be
deemed timely with the correct forum (the DOL) pursuant to
section 7702(f)’s savings clause. The government disagrees
for three reasons. First, as a probationary employee,
Schlottman “was not an employee for purposes of section
7702(f), and thus not entitled to file a mixed case appeal with
the MSPB.” Appellee’s Br. 9. Second, “there can be no such
thing as a ‘mixed’ Individual Right of Action that would bring
section 7702(f) into play.” Id. at 10. In other words, an
allegation of discrimination together with a claim of
whistleblower reprisal cannot constitute a “mixed case” under
section 7702. Id. at 11. Finally, “even if section 7702(f)
otherwise applied, Schlottman could not get relief because his
direct discrimination-based appeal to the MSPB and his EEO
complaint to DOL were untimely.” Id. at 10.
 8
We have no need to address the government’s first two
arguments because, assuming that Schlottman filed a proper
“mixed case” appeal under section 7702, we, like the district
court, conclude that Schlottman’s appeal was untimely and
therefore receives no protection from the savings clause. Of
course, this conclusion is hardly obvious from the clause’s
ambiguous language. Although Congress enacted the savings
clause to protect employees who, confused by the federal
government’s complex procedures, file in the wrong forum, it
failed to define a key statutory term—“timely.” For their part,
the parties offer little help, as neither even attempts to define
the term. Instead, they simply assume definitions that produce
their preferred outcomes. In our view, their dispute boils
down to the following question: Do we (as the government
assumes) measure the timeliness of Schlottman’s formal Title
VII complaint with respect to the deadlines of the proper
route, i.e., the EEO route, under which Schlottman formally
filed his complaint, due May 16, on June 4? See Appellee’s
Br. 10–11. Or do we (as Schlottman assumes) measure the
timeliness of the complaint against the deadlines of the
improper route, i.e., the whistleblower route, under which
Schlottman timely filed his IRA, to which he appended his
Title VII claim as part of an alleged “mixed case”? See
Appellant’s Br. 22–23; 5 U.S.C. § 1214(a)(3)(A)(ii)
(prescribing a 60-day deadline for appealing OSC dismissal).
This is not the first time this question has arisen. Indeed,
every court and administrative agency to have considered the
question has, though not expressly, applied the savings clause
only when a filing was timely under the deadlines of the
proper forum. Put another way, they have applied the savings
clause to excuse errors only in the place, not time, of filing.
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In Whittington v. Merit Systems Protection Board, 80
F.3d 471 (Fed. Cir. 1996), a former federal employee,
alleging that her removal was racially motivated, erroneously
filed a mixed case with the EEOC instead of with the MSPB,
but did so within the MSPB’s 20-day filing deadline. Id. at
472. Over a year after her removal, she filed an appeal with
the MSPB, the proper forum for her claim, and the MSPB
dismissed the appeal as untimely. Id. The Federal Circuit
concluded that the MSPB erred by “failing to consider [the
savings clause],” which would have saved the MSPB appeal
as timely “if [the former employee] erroneously filed her
appeal with EEOC within the time limit for filing with the
[MSPB].” Id. at 474 (emphasis added).
In Williams v. USPS, 115 M.S.P.R. 318 (2010), the
complainant faced a 30-day deadline for filing his
discrimination claim with the MSPB. He instead filed his
claim with the EEOC but within those thirty days. The MSPB
found that because the complainant had adhered to the
MSPB’s deadline, the savings clause preserved the
discrimination claim, treating it as timely filed before the
MSPB. Id. at 321–22. See also Godesky v. Department of
Health & Human Services, 101 M.S.P.R. 280, 283 (2006)
(treating as timely filed with MSPB a request filed with
EEOC within MSPB deadline); Brent v. Department of
Justice, 100 M.S.P.R. 586, 589–90 (2005), aff’d, 213 Fed.
App’x 993 (Fed. Cir. 2007) (treating as timely filed with
MSPB a request filed with FLRA within MSPB deadline).
A district court in this Circuit has also measured
timeliness under the savings clause with respect to the
10
deadlines of the proper forum. In Frank v. Ridge, 310 F.
Supp. 2d 4, 7 (D.D.C. 2004), aff’d sub nom. Frank v.
Chertoff, 171 Fed. App’x 860 (D.C. Cir. 2005), a former
federal employee actively pursuing a mixed MSPB appeal
filed an EEO complaint alleging that his demotion was due to
gender discrimination. The employing agency and the MSPB,
to whom he later appealed, both declined to consider the
gender-discrimination claim because the complainant had
failed to raise it earlier in the MSPB process. See id. at 7.
Quoting Whittington, the district court noted that the savings
clause would preserve a plaintiff’s MSPB appeal if he
“erroneously filed [his] appeal with EEOC within the time
limit for filing with the [MSPB].” Id. at 9 (internal quotation
marks omitted) (emphasis added). The district court thus
concluded that the complainant’s discrimination claim was
preserved before the MSPB. See id. at 10. We summarily
affirmed in an unpublished judgment. See Frank, 171 Fed.
App’x. at 861; see also In re Grant, 635 F.3d 1227, 1232
(D.C. Cir. 2011) (observing “persuasive authority” of
unpublished orders).
Schlottman counters with two EEOC cases, Knowles v.
Peña, EEOC Doc. 05930260, 1993 WL 1509932 (Aug. 12,
1993), and Nuno v. Rumsfeld, EEOC Doc. 04A60029, 2006
WL 1910448 (June 28, 2006), which he argues “preserve
discrimination complaints when the employee filed an appeal
which he was not permitted by law to file.” Appellant’s Reply
Br. 19. But Schlottman’s reliance on these decisions is
misplaced because both apply the savings clause to “save”
complaints that were filed improperly with the MSPB but
within EEO deadlines. See also Alop v. Brady, EEOC Doc.
05890680, 1989 WL 1007232, at *3 (Oct. 2, 1989)
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(concluding the same). Unlike the Knowles and Nuno
complainants, who never initiated informal EEO counseling
and instead pursued their discrimination claims solely—albeit
incorrectly—with the MSPB, Schlottman consulted an EEO
counselor, received his 15-day right-to-file notice, and then
failed to file his formal Title VII claim in any forum within
those fifteen days. Knowles and Nuno thus provide no support
for Schlottman’s argument that section 7702(f)’s savings
clause preserved his untimely Title VII claim.
Under all of these cases, Schlottman could have saved his
Title VII claim and pursued it through the EEO route only if
he had abided by the deadlines of that route. As the
government explains in an analogy drawn from Whittington,
“if Schlottman, after receiving the right-to-file notice from the
EEO counselor, had erroneously filed his formal EEO
complaint with the MSPB within the 15 day-deadline
prescribed by the notice, the complaint would have been
considered timely filed with DOL.” See Appellee’s Br. 32.
Instead, Schlottman first filed his formal Title VII claim with
the MSPB on June 4, well after that 15-day deadline. His
claim was thus untimely.
This result makes sense. Because Schlottman seeks to
“save” his Title VII claim for the purpose of filing it
according to the EEO route—the only avenue through which
he could independently raise the claim—it seems logical to
measure the timeliness of his claim according to that route’s
deadlines. Doing so, moreover, ensures that complainants
using the same route play by the same rules. It also avoids the
numerous pitfalls inherent in Schlottman’s theory. For one
thing, under Schlottman’s view his “timely filed [IRA] would
12
allow him to save an untimely discrimination claim with the
MSPB when a non-probationary employee in the same
circumstance who did not allege a whistleblower claim would
be barred from doing so.” Appellee’s Br. 30. Moreover, were
we to interpret the savings clause as Schlottman urges—
preserving claims that are timely with respect to the wrong
forum—we would effectively allow, and perhaps even incent,
complainants to seek out improper forums with more
favorable deadlines in order to “save” untimely claims. For
example, a probationary employee alleging neither marital nor
political discrimination who could raise his Title VII claim
only via the EEO route could “circumvent this jurisdictional
limitation—and the EEO deadlines—by simply appending a
discrimination claim to an [IRA].” Id. at 31. Finally, assuming
it were otherwise possible, complainants would be free to
“save” old discrimination claims simply by appending them to
distinct, timely-filed non-discrimination claims as part of
alleged “mixed cases.”
In sum, because the savings clause excuses errors only in
the place, not time, of filing, Schlottman’s formal Title VII
claim—filed well after the expiration of the EEO route’s 15-
day deadline—was untimely. Accordingly, we affirm.
So ordered.