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D ock e t 98-5052

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. e du/thir dc ir c uit_1999/15Filed 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 allegin g violations of Title VII of the Civil Rights Act of 1964 by her employer, the Department of Veteran Affairs, appeal s from the District Court's sua sponte dismissal of her co mplaint.
The case raises an issue of the effect of a motion for reconsideration filed by a federal employee with th e 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 Cente r ("DVA"). During the past ten years, Holleyfiled sev eral complaints with the EEOC, alleging that she was the subject of sex-based and retaliatory discrimination and harassment in the workplace. The four complaints re levant to this appeal were consolidated for investigation and proceedings at the agency level (Agency Nos. 92-209 1, 93- 2846, 93-3295, and 94-0085). In those complaints, H olley 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, 19 93, 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 w as not rated outstanding; (5) as a form of sexual harassme nt, she received an admonishment on September 16, 1993; (6) her position and occupational title code were changed e ffective December 24, 1991; (7) she was reassigned on April 2, 1992, and (8) she was subjected to a hostile enviro nment

___________________________________________________ ______________

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

2including being excluded from meetings on March 11 and

13, 1992.2

The DVA adopted the findings of an EEOC administrat ive law judge who determined that there was insufficien t evidence of discrimination to support the claims in Holley's complaints. Holley received notice of the DVA's fin al decision on November 24, 1994. Holley filed an appe al to the EEOC, which dismissed her appeal with respect t o all four complaints as untimely filed (Appeal No. 01952 467). Holley received notice of the EEOC's dismissal, as well as notice of her "right to sue" in federal court, on J uly 21, 1995. On July 28, 1995, Holley filed a request with the EEOC for reconsideration of its dismissal of the ap peal.

On November 10, 1997, before the EEOC ruled on her pending request for reconsideration, Holley commenc ed this action under Title VII of the Civil Rights Act of 1 964, 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 untim ely filed. On November 13, 1997, three days after Holle y filed her complaint in the district court, the EEOC issue d a decision granting in part Holley's request for reconsideration. The EEOC found that, although thre e of her appeals were properly dismissed as untimelyfile d, her appeal with respect to the decision in Agency No. 9 2-2091 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 commenc ed within 90 days of the date on which the plaintiff r eceived notice that the EEOC dismissed the appeal. The cour t found that "plaintiff filed the present action appr oximately 27 months after receipt of the EEOC's decision and Notice

___________________________________________________ ______________

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

3of Right to Sue. Her Complaint is long time-barred and

must be dismissed."

Holley timely filed this appeal. We have jurisdicti on 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 t o consider, the effect that Holley's timely filed req uest for EEOC reconsideration had upon her time for filing h er court action. Under the EEOC's regulations, a feder al employee may file a civil action in federal court ( 1) within 90 days of receipt of the EEOC's "final decision" o n the appeal, or (2) after 180 days from the date of fili ng 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 day s of receipt of the EEOC's decision. See 29 C.F.R. S 161 4.407(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 1614.4 05(b)(1) (providing that an EEOC decision on appeal is final unless "either party files a timely request for reconsider ation pursuant to S 1614.407"); Robbins v. Bentsen, 41 F. 3d 1195, 1198 (7th Cir. 1994) ("Decisions issued on[EE OC] 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, rend ered 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. T his conclusion accords with the holdings of the other c ourts of

4appeals 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 reconsi deration will toll the filing deadline for a suit in distric t court, but an untimely petition will have no tolling effect."); R owe v. Sullivan, 967 F.2d 186, 190 (5th Cir. 1992) ("The f iling of a timely request to reopen an EEOC decision tolls the statutory time limit."); Donaldson v. Tennessee Val ley Auth., 759 F.2d 535 (6th Cir. 1985) (same); Nordell v. Hec kler, 749 F.2d 47 (D.C. Cir. 1984) (same).

In its opinion in Metsopulos, the District Court no ted that before the EEOC adopted the 1992 regulation, 29 C.F .R. S 1614.405(b)(1), the circuits had split on the que stion whether a request for reconsideration of an EEOC de cision
rendered the first decision non-final. See 918 F. S upp. at 861 n.5. With the 1992 regulation, the EEOC opted t o follow the rule of the Sixth and D.C. Circuits in D onaldson and Nordell, and to reject that of the Ninth and Fo urth 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 10 06 (4th Cir. 1982)(same). The latter two cases were decided before the promulgation of the new regulation. See William s v. Brown, 1997 WL 88376, at * 2 (N.D. Cal., Feb. 18, 1 997) ("[T]he Ninth Circuit's decision in Mahroom has bee n 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, a s it was within 30 days of her receipt of the EEOC's decisio n dismissing her appeal. Consequently, the 90-day lim itations period on the filing of her suit in the district co urt was tolled. Belhomme, 127 F.3d at 1216-17; Rowe, 967 F. 2d at 190. When Holley filed her complaint in the distric t court on November 10, 1997, the EEOC had yet to render a "final decision" on her appeal as her request for reconsid eration was still pending. See 29 C.F.R. S 1614.405(b)(1) ( decision on appeal is not "final" if party files timely requ est for reconsideration). Because she filed her complaint m ore than 180 days after the date on which she filed her appeal

5with the EEOC, and because she filed suit before th e EEOC

rendered its "final decision" by ruling on her reconsideration request, her complaint was timelyfi led.

Our decision in McCray v. Corry Mfg. Co., 61 F.3d 2 24 (3d Cir. 1995), does not compel a contrary decision . In McCray, the issue presented was whether a timely re quest for EEOC reconsideration filed by a private-sector employee tolled her time to file an ADEA complaint in the di strict court. We held that it did not. Id. at 229 ("[W]e h old that merely requesting reconsideration of an EEOC Determination does not toll the ninety day statute of limitations controlling the filing of a civil actio n."). We noted that there is no federal regulation governing a pri vate-sector employee's request for EEOC reconsideration of an A DEA claim. See id. at 228. Accordingly, we focused on 2 9 C.F.R. S 1601.19(b), the regulation governing EEOC
reconsideration of a "no cause" determination in Ti tle VII and ADA cases filed by private-sector employees. Fo r 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 no tice of its intent to reconsider within ninety days of the claimant's receipt of a no cause determination, the claimant h as 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 im port of a federal employee's timely request for reconsidera tion, which is governed by a different set of federal reg ulations. Holley is a federal employee, and, as we explained above, under the regulations that govern suits by federal employees, her timely request for reconsideration t olled the 90-day period for filing suit in the district court .3

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

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

6as untimely filed, and ruled against her on the mer its of

that appeal, Holley's complaint had been timely fil ed.

In fact, under the regulations, once Holley filed h er 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 1614.4 10, "the filing of this civil action terminated the processi ng 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 privatesector employers, under which her suit would be unt imely, 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 obligatio n to read her pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). We apply the applicable law, irrespe ctive of whether a pro se litigant has mentioned it by name. See Small v. Lehman, 98 F.3d 762, 766 (3d Cir. 1996); L ewis v. Attorney General of United States, 878 F.2d 714, 72 2 n.20 (3d Cir. 1989). This is particularly true where, as here, the statutory citation appears in the preprinted portio n of a form for discrimination complaints that appears to have been supplied by the Clerk of the District Court fo r the District of New Jersey. The substance of Holley's c omplaint is that her employer, a federal agency, engaged in discrimination. Accordingly, her complaint should b e

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4. It has come to our attention that on July 16, 19 98 this court issued a per curiam Opinion in No. 98-5051, affirming the District Court's dismissal of a different Title VII complaint that H olley 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 note d 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, 19 98, within 60 days from the filing of this opinion.

7governed by the rules pertaining to discrimination claims

by federal employees.

III.

For the foregoing reasons, the judgment of the Dist rict
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

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