                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-21-1999

Holley v. Dept Veteran Affairs
Precedential or Non-Precedential:

Docket 98-5052




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Recommended Citation
"Holley v. Dept Veteran Affairs" (1999). 1999 Decisions. Paper 15.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/15


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Filed January 21, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5052

EVELYN O. HOLLEY,
       Appellant

v.

DEPARTMENT OF VETERAN AFFAIRS, HERSHEL GOBER,
ACTING SECRETARY

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 97-cv-05484)
District Judge: Hon. John W. Bissell

Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 1998

Before: SLOVITER, ROTH and ROSENN, Circuit Judges

(Filed January 21, 1999)
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Evelyn Holley, who filed a pro se complaint alleging
violations of Title VII of the Civil Rights Act of 1964 by her
employer, the Department of Veteran Affairs, appeals from
the District Court's sua sponte dismissal of her complaint.
The case raises an issue of the effect of a motion for
reconsideration filed by a federal employee with the EEOC
on the time to file a court action.1

I.

Holley is a federal employee with the East Orange, New
Jersey, Department of Veteran Affairs Medical Center
("DVA"). During the past ten years, Holleyfiled several
complaints with the EEOC, alleging that she was the
subject of sex-based and retaliatory discrimination and
harassment in the workplace. The four complaints relevant
to this appeal were consolidated for investigation and
proceedings at the agency level (Agency Nos. 92-2091, 93-
2846, 93-3295, and 94-0085). In those complaints, Holley
alleged that she was the subject of discrimination because:
(1) in May 1993, she was not selected for the VAFY-94
Associate Director Training Program; (2) in May, 1993, she
was excluded from the JCAHO Leadership Interview
Meeting; (3) in February, 1993, she was required to make
changes in the Medical Center Policy Memorandum
concerning the Patient Representative Program; (4) for the
period April 1, 1992, through March 31, 1993, she was not
rated outstanding; (5) as a form of sexual harassment, she
received an admonishment on September 16, 1993; (6) her
position and occupational title code were changed effective
December 24, 1991; (7) she was reassigned on April 2,
1992, and (8) she was subjected to a hostile environment
_________________________________________________________________

1. This matter is submitted on appellant's brief only. The Office of the
United States Attorney initially entered an appearance on behalf of the
appellee, but then withdrew its appearance beforefiling a brief.

                               2
including being excluded from meetings on March 11 and
13, 1992.2

The DVA adopted the findings of an EEOC administrative
law judge who determined that there was insufficient
evidence of discrimination to support the claims in Holley's
complaints. Holley received notice of the DVA's final
decision on November 24, 1994. Holley filed an appeal to
the EEOC, which dismissed her appeal with respect to all
four complaints as untimely filed (Appeal No. 01952467).
Holley received notice of the EEOC's dismissal, as well as
notice of her "right to sue" in federal court, on July 21,
1995. On July 28, 1995, Holley filed a request with the
EEOC for reconsideration of its dismissal of the appeal.

On November 10, 1997, before the EEOC ruled on her
pending request for reconsideration, Holley commenced this
action under Title VII of the Civil Rights Act of 1964, 42
U.S.C. S 2000e-16, by filing a pro se complaint in the
district court. Holley attached to her complaint a copy of
the EEOC's decision dismissing her appeals as untimely
filed. On November 13, 1997, three days after Holley filed
her complaint in the district court, the EEOC issued a
decision granting in part Holley's request for
reconsideration. The EEOC found that, although three of
her appeals were properly dismissed as untimelyfiled, her
appeal with respect to the decision in Agency No. 92-2091
was timely. The EEOC ruled upon the merits of that appeal
on reconsideration, and decided adversely to Holley.

By order entered December 29, 1997, before service of
Holley's complaint upon the defendant, the District Court
dismissed the complaint sua sponte as time-barred. The
court noted that a Title VII action must be commenced
within 90 days of the date on which the plaintiff received
notice that the EEOC dismissed the appeal. The court
found that "plaintiff filed the present action approximately
27 months after receipt of the EEOC's decision and Notice
_________________________________________________________________

2. Holley's complaints are not part of the record on appeal, and this
recitation of the issues that she presented was gleaned from other
documents in the record. It is unclear on the present record whether
additional claims were presented in the complaints at issue.

                                3
of Right to Sue. Her Complaint is long time-barred and
must be dismissed."

Holley timely filed this appeal. We have jurisdiction
pursuant to 28 U.S.C. S 1291. Our review is plenary. See
Robinson v. Dalton, 107 F.3d 1018, 1020-22 (3d Cir. 1997).

II.

The District Court made no mention of, and failed to
consider, the effect that Holley's timely filed request for
EEOC reconsideration had upon her time for filing her
court action. Under the EEOC's regulations, a federal
employee may file a civil action in federal court (1) within
90 days of receipt of the EEOC's "final decision" on the
appeal, or (2) after 180 days from the date of filing an
appeal with the EEOC if, at that time, the EEOC has yet to
issue a "final decision." See 29 C.F.R. S 1614.408(c) & (d).
A party to a federal employee's EEOC appeal has the right
to file a request for reconsideration within 30 days of
receipt of the EEOC's decision. See 29 C.F.R. S 1614.407(a).

When a reconsideration request is timely filed, the
EEOC's decision on appeal becomes "final" only when that
request is granted or denied. See 29 C.F.R.S 1614.405(b)(1)
(providing that an EEOC decision on appeal is final unless
"either party files a timely request for reconsideration
pursuant to S 1614.407"); Robbins v. Bentsen, 41 F.3d
1195, 1198 (7th Cir. 1994) ("Decisions issued on[EEOC]
appeals are considered `final decisions' within the meaning
of S 1614.408 unless there is a motion for
reconsideration."); Briggs v. Henderson, 11 F. Supp. 2d 727
(D. Conn. 1998) ("The Postal Service's request for
reconsideration of the EEOC Decision, however, rendered
the EEOC's action nonfinal."); Metsopulos v. Runyon, 918 F.
Supp. 851, 861 (D.N.J. 1996) ("where reargument is timely
requested, finality occurs when the request for
reconsideration is granted or denied").

Thus, a straightforward reading of the applicable
regulations leads to the conclusion that a federal
employee's timely filed request for reconsideration tolls the
90-day deadline for filing suit in federal court. This
conclusion accords with the holdings of the other courts of

                                4
appeals that have addressed the issue. See Belhomme v.
Widnall, 127 F.3d 1214, 1216-17 (10th Cir. 1997) ("This
circuit has held that a timely petition for reconsideration
will toll the filing deadline for a suit in district court, but an
untimely petition will have no tolling effect."); Rowe v.
Sullivan, 967 F.2d 186, 190 (5th Cir. 1992) ("The filing of a
timely request to reopen an EEOC decision tolls the
statutory time limit."); Donaldson v. Tennessee Valley Auth.,
759 F.2d 535 (6th Cir. 1985) (same); Nordell v. Heckler, 749
F.2d 47 (D.C. Cir. 1984) (same).

In its opinion in Metsopulos, the District Court noted that
before the EEOC adopted the 1992 regulation, 29 C.F.R.
S 1614.405(b)(1), the circuits had split on the question
whether a request for reconsideration of an EEOC decision
rendered the first decision non-final. See 918 F. Supp. at
861 n.5. With the 1992 regulation, the EEOC opted to
follow the rule of the Sixth and D.C. Circuits in Donaldson
and Nordell, and to reject that of the Ninth and Fourth
Circuits in Mahroom v. Defense Language Institute, 732
F.2d 1439, 1440 (9th Cir. 1984)(denial of appeal by EEOC
was final decision "unaltered by a request for
reconsideration"), and Birch v. Lehman, 677 F.2d 1006 (4th
Cir. 1982)(same). The latter two cases were decided before
the promulgation of the new regulation. See Williams v.
Brown, 1997 WL 88376, at * 2 (N.D. Cal., Feb. 18, 1997)
("[T]he Ninth Circuit's decision in Mahroom has been called
into question by the EEOC's adoption of 29 C.F.R.
S 1614.405(b)(1) in 1992.").

Holley's complaint alleges, and the record reflects, that
her request for reconsideration was timely filed, as it was
within 30 days of her receipt of the EEOC's decision
dismissing her appeal. Consequently, the 90-day limitations
period on the filing of her suit in the district court was
tolled. Belhomme, 127 F.3d at 1216-17; Rowe, 967 F.2d at
190. When Holley filed her complaint in the district court
on November 10, 1997, the EEOC had yet to render a "final
decision" on her appeal as her request for reconsideration
was still pending. See 29 C.F.R. S 1614.405(b)(1) (decision
on appeal is not "final" if party files timely request for
reconsideration). Because she filed her complaint more
than 180 days after the date on which she filed her appeal

                               5
with the EEOC, and because she filed suit before the EEOC
rendered its "final decision" by ruling on her
reconsideration request, her complaint was timelyfiled.

Our decision in McCray v. Corry Mfg. Co., 61 F.3d 224
(3d Cir. 1995), does not compel a contrary decision. In
McCray, the issue presented was whether a timely request
for EEOC reconsideration filed by a private-sector employee
tolled her time to file an ADEA complaint in the district
court. We held that it did not. Id. at 229 ("[W]e hold that
merely requesting reconsideration of an EEOC
Determination does not toll the ninety day statute of
limitations controlling the filing of a civil action."). We noted
that there is no federal regulation governing a private-sector
employee's request for EEOC reconsideration of an ADEA
claim. See id. at 228. Accordingly, we focused on 29 C.F.R.
S 1601.19(b), the regulation governing EEOC
reconsideration of a "no cause" determination in Title VII
and ADA cases filed by private-sector employees. For
private-sector employees, a timely request for
reconsideration only serves to toll the time tofile a Title VII
or ADA suit in federal court if "the EEOC issues notice of
its intent to reconsider within ninety days of the claimant's
receipt of a no cause determination, the claimant has not
filed suit yet and the claimant did not request and receive
a notice of right to sue." Id. at 229.

Significantly, in McCray we did not consider the import of
a federal employee's timely request for reconsideration,
which is governed by a different set of federal regulations.
Holley is a federal employee, and, as we explained above,
under the regulations that govern suits by federal
employees, her timely request for reconsideration tolled the
90-day period for filing suit in the district court.3

The fact that the EEOC granted in part Holley's request
for reconsideration three days after she filed this action in
the district court does not change the result. By the time
the EEOC found that her appeal with respect to one of her
four underlying complaints should not have been dismissed
_________________________________________________________________

3. We note the difference in treatment in this connection between the
regulations applicable to federal employees and those applicable to
private sector claimants, but that is an issue for Congress or the EEOC.

                               6
as untimely filed, and ruled against her on the merits of
that appeal, Holley's complaint had been timely filed.

In fact, under the regulations, once Holley filed her action
the EEOC lost any authority to consider her request for
reconsideration. See 29 C.F.R. S 1614.410 ([f]iling a civil
action . . . shall terminate Commission processing of the
appeal). Accordingly, the EEOC's subsequent ruling on
Holley's reconsideration request had no effect. See Briggs,
11 F. Supp. 2d at 728 (finding that, under S 1614.410, "the
filing of this civil action terminated the processing of
plaintiff's appeal (including the . . . request for
reconsideration)").4

We note that Holley's complaint invoked 42 U.S.C.
S 2000e-5, the provision that applies generally to private-
sector employers, under which her suit would be untimely,
rather than S 2000e-16, the provision applicable to
discrimination claims by federal employees. Because Holley
is pursuing her action pro se, we have an obligation to read
her pleadings liberally. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972). We apply the applicable law, irrespective of
whether a pro se litigant has mentioned it by name. See
Small v. Lehman, 98 F.3d 762, 766 (3d Cir. 1996); Lewis v.
Attorney General of United States, 878 F.2d 714, 722 n.20
(3d Cir. 1989). This is particularly true where, as here, the
statutory citation appears in the preprinted portion of a
form for discrimination complaints that appears to have
been supplied by the Clerk of the District Court for the
District of New Jersey. The substance of Holley's complaint
is that her employer, a federal agency, engaged in
discrimination. Accordingly, her complaint should be
_________________________________________________________________

4. It has come to our attention that on July 16, 1998 this court issued
a per curiam Opinion in No. 98-5051, affirming the District Court's
dismissal of a different Title VII complaint that Holley had filed. The
procedural facts there were indistinguishable from those in the present
case, as the District Court had dismissed Holley's complaint sua sponte
as untimely filed despite the fact that Holley noted in her complaint that
she had filed a timely request for reconsideration with the EEOC. If
Holley wishes to pursue those claims, she may file a motion to recall the
mandate in 98-5051, which issued on September 9, 1998, within 60
days from the filing of this opinion.

                               7
governed by the rules pertaining to discrimination claims
by federal employees.

III.

For the foregoing reasons, the judgment of the District
Court will be reversed and the case remanded for
proceedings consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               8
