1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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. 

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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. 

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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 

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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 

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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. 

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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 privatesector 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. 

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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 

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