Judges: Posner
Filed: Nov. 25, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-1291 KIMBERLY A. MORELAND, Plaintiff-Appellant, v. JEH C. JOHNSON, Secretary of U.S. Dept. of Homeland Security, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12-cv-01125-RTR — Rudolph T. Randa, Judge. _ ARGUED OCTOBER 6, 2015 — DECIDED NOVEMBER 25, 2015 _ Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. The plaintiff, a
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-1291 KIMBERLY A. MORELAND, Plaintiff-Appellant, v. JEH C. JOHNSON, Secretary of U.S. Dept. of Homeland Security, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12-cv-01125-RTR — Rudolph T. Randa, Judge. _ ARGUED OCTOBER 6, 2015 — DECIDED NOVEMBER 25, 2015 _ Before WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges. POSNER, Circuit Judge. The plaintiff, an..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1291
KIMBERLY A. MORELAND,
Plaintiff‐Appellant,
v.
JEH C. JOHNSON, Secretary of U.S. Dept. of Homeland
Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12‐cv‐01125‐RTR — Rudolph T. Randa, Judge.
____________________
ARGUED OCTOBER 6, 2015 — DECIDED NOVEMBER 25, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. The plaintiff, an occasional em‐
ployee (we’ll explain what that means) of the Federal Emer‐
gency Management Agency (FEMA), which is part of the
Department of Homeland Security (DHS), appeals from the
dismissal of a suit against the department in which she
charges retaliation against her for filing an administrative
2 No. 15‐1291
claim of discrimination on the basis of her race (black), age
(in her forties at the time of the incident), and sex. Both the
suit and the administrative proceeding, which preceded it,
are based on Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq.
The connection between the suit for retaliation and the
administrative claim of discrimination is the critical issue
presented by the appeal. The suit also began as an adminis‐
trative proceeding within DHS rather than as a judicial pro‐
ceeding, but it molted into a court suit, now before us on the
plaintiff’s appeal from its dismissal by the district judge. The
administrative steps that preceded the district judge’s deci‐
sion are so convoluted that we’ve attached a timeline as an
appendix to this opinion.
At the time the events giving rise to this litigation began
to unfold, the plaintiff was what is called a Disaster Assis‐
tance Employee or, more illuminatingly, a Disaster Reserv‐
ist. These are persons who are on call for temporary de‐
ployment to disaster sites at which FEMA has a shortage of
regular employees. When not deployed, a Disaster Reservist,
though remaining classified as a FEMA employee, is not
paid.
The plaintiff lives in Texas but in June 2009 was deployed
to Iowa. Because she doesn’t like to fly, she sought permis‐
sion to drive and this was granted. The drive took 19 hours.
When she arrived she sought permission to remain in the
same hotel rather than have to move from hotel to hotel; ap‐
parently her assignment covered a multicounty area (we’re
given none of the details, but fortunately they’re not relevant
to this appeal). Permission was denied. She protested and
“walked away.” We’re not sure what that means, but it must
No. 15‐1291 3
have irritated her boss, the local FEMA Branch Director, be‐
cause he sent her home to Texas forthwith even though
she’d relented and agreed to move among hotels. On the day
after her protest against having to move from hotel to hotel
she was issued a negative performance evaluation (though
not so negative as to terminate her position as a Disaster Re‐
servist) rating her both undependable and uncooperative.
And as a final ignominy she was paid for only 8 of the 19
hours that it took her to drive from Texas to Iowa; we don’t
know how much of the return trip she received compensa‐
tion for.
Claiming that the bad treatment she’d received was dis‐
criminatory, she filed a formal complaint with the Depart‐
ment of Homeland Security. But not until four years later
did the Equal Employment Opportunity Commission’s Of‐
fice of Federal Operations (EEOC OFO) agree with an EEOC
administrative law judge’s determination that she had in‐
deed been mistreated by DHS. (The EEOC calls its hearing
officers “administrative judges,” not “administrative law
judges,” 29 C.F.R. § 1614.109, but we’ll use the more familiar
term.) She was awarded back pay, benefits, and compensa‐
tory damages and the unfavorable performance evaluation
was purged, which would have increased the likelihood of
her receiving future deployments—in principle, but not in
practice, because her term as a Disaster Reservist had ended
and had not been renewed, making her ineligible for de‐
ployment.
Two of the witnesses at the hearing before the adminis‐
trative law judge, both of them FEMA employees testifying
for their employer and against Ms. Moreland, had been
compensated for the time they’d spent and the travel ex‐
4 No. 15‐1291
penses they’d incurred in their role as witnesses. She had
been a witness too of course, yet had received no compensa‐
tion for her time and for her travel expenses (which must
have been considerable, since the hearing was held in Mil‐
waukee and she was still living in Texas). She told the ad‐
ministrative law judge that she had requested time and trav‐
el expenses from DHS but had been denied them, and she
said that this was evidence of the department’s discrimina‐
tion against her. As for the disparity in treatment between
her and FEMA’s witnesses, she contends that it was retalia‐
tion for her charging discrimination by DHS; such retaliation
if proved would indeed violate Title VII. 42 U.S.C. § 2000e‐3;
Mintz v. Caterpillar Inc., 788 F.3d 673, 680–81 (7th Cir. 2015).
So what to do to obtain relief for this new unlawful con‐
duct? She couldn’t ask her lawyer; she didn’t have a lawyer.
So she told the administrative law judge about the problem
(her original proceeding was still pending before him), and
he advised her to submit a second complaint. She did that,
but DHS dismissed it on the ground that instead of filing a
new charge she should have added the new charge (retalia‐
tion) to her original complaint (the one that had kicked off
her original charge of discrimination)—as she could still
have done because the administrative law judge had not yet
ruled on the original claim. See 29 C.F.R. § 1614.106(d);
EEOC Management Directive 110, ch. 5, §§ IV(D)(1),
IV(D)(3)(a) (Nov. 9, 1999). But she was pro se and hadn’t
known how to litigate her new charge. That’s why she’d
consulted the administrative law judge and, as we noted, he
had told her to institute a new action, which she did. The
wording of DHS’s dismissal of her second suit—the retalia‐
tion suit, which the administrative law judge had told her
was the proper way to present her claim of retaliation—did
No. 15‐1291 5
not indicate whether she could amend her initial complaint
given that she’d filed it two years before and had already
had her hearing on it. In fact DHS never told her that she
could amend her initial complaint; it just told her that her
new claim “must be raised within the underlying com‐
plaint.” She had already “raised” it, she thought, with the
administrative law judge.
That didn’t satisfy DHS, which insisted that she should
have included the new claim in an amendment to her first
complaint because raised separately it was a “spin‐off” com‐
plaint. An EEOC regulation authorizes dismissal of a com‐
plaint “that alleges dissatisfaction with the processing of a
previously filed complaint.” 29 C.F.R. § 1614.107(a)(8). DHS
told her that therefore any “dissatisfaction with the EEO
process must be raised within the underlying complaint,”
which was the first complaint she’d filed; the second, the
spin off, was her complaint about how DHS had treated her
during the hearing on the first complaint, treatment that had
discriminated, she contended, in favor of FEMA’s witnesses.
She didn’t try to amend her original complaint, but in‐
stead continued pressing the second one as a stand‐alone by
appealing DHS’s dismissal of the second complaint to EEOC
OFO, which however affirmed DHS on the ground that the
second complaint was indeed a spin‐off complaint. But in
addition EEOC OFO told her that it wasn’t too late for her to
incorporate the allegations of her second complaint into her
first administrative proceeding, even though an appeal from
the administrative law judge’s decision was pending. It was
rather an odd suggestion, since if adopted it would have
converted that appeal, so far as the new allegations were
concerned, into a trial‐level proceeding. Nevertheless this is
6 No. 15‐1291
occasionally done—but there is no guarantee of its being
done in any particular case. Compare Mattocks v. Caldera,
EEOC Appeal No. 01A00959, 2000 WL 621699, at *1‐*2 (May
2, 2000) with Jones v. Shinseki, EEOC App. No. 0120123526,
2013 WL 874654, at *2 (Feb. 26, 2013). But having been told
by the administrative law judge that she could not raise her
retaliation claim in her original case, she did not pursue the
vague contradictory instruction from EEOC OFO.
The affirmance set the stage for Moreland’s present suit,
which was filed in federal district court and named the De‐
partment of Homeland Security as the defendant, and which
is now before us in this appeal. The district judge granted
DHS’s motion for judgment on the pleadings, Fed. R. Civ. P.
12(c), precipitating the present appeal. The judge reasoned
that the plaintiff had failed to exhaust her administrative
remedies by failing to amend her original administrative
complaint to add the retaliation claim, as EEOC OFO had
told her was the right way to proceed. (On exhaustion of
administrative remedies in Title VII cases, see, e.g., Reynolds
v. Tangherlini, 737 F.3d 1093, 1099 (7th Cir. 2013).)
It might seem obvious that a claim that derives in some
sense from a pending claim should be consolidated with it,
as EEOC OFO insisted. Actually it’s not obvious. Suppose
that in the midst of a trial for battery the defendant leaps up
from his seat, pulls an apple out of his pocket, and throws it
at the plaintiff with great force: a second battery. It would be
odd for the judge (especially but not only were it a jury trial)
to interrupt the trial and tell the plaintiff to file an amended
complaint adding the courtroom battery to the original bat‐
tery charge, leading to a new round of pleadings followed
eventually by a resumption, or perhaps do‐over, of the trial.
No. 15‐1291 7
The administrative proceeding launched by Moreland’s first
complaint was almost two years old when she filed her sec‐
ond complaint, and it could well have been significantly pro‐
tracted had the proceeding been expanded to embrace the
new charge. It seemed more sensible to the administrative
law judge, whom the plaintiff consulted and whose advice
she followed, that she file a separate administrative action.
The first proceeding—the administrative claim of dis‐
crimination—was resolved in the plaintiff’s favor more than
two years after the Department of Homeland Security had
dismissed the second proceeding. It was resolved after she
had filed her district court suit but before the district judge
had dismissed that suit. The critical question is whether the
plaintiff’s second administrative complaint alleged “dissatis‐
faction with the processing of a previously filed complaint”
and thus was a spin‐off. That’s doubtful. The earlier com‐
plaint had sought relief for the harsh treatment that FEMA
had meted out to her when she was deployed to Iowa. Alt‐
hough it took longer than it should have to decide the case, it
was eventually decided in her favor and she never com‐
plained about the delay. The dissatisfaction that prompted
her second complaint was not with how her complaint had
been processed but with DHS’s discriminating, for retaliato‐
ry reasons as she believed, in favor of its witnesses (FEMA’s
witnesses, but remember that FEMA is part of DHS) by
compensating their time and travel expenses in the original
proceeding, but not hers. She has never argued that the al‐
leged retaliation interfered with her first case (whether by
delaying its conclusion or in any other way), which in fact
she won. When one considers how long it took to decide the
first case, it becomes apparent that folding the second case
(the retaliation case) into it would have protracted the first
8 No. 15‐1291
case unconscionably. Instead of taking four years to decide,
it might have taken six years, or even more.
A further objection to the application of the “no spin‐
offs” regulation is that DHS had actually finished processing
the plaintiff’s first complaint when she made her retaliation
claim. Having completed its investigation it told her she
could either request an immediate decision by DHS or have
her complaint heard by an EEOC administrative law judge,
and she chose the latter route, which resulted in a shift of
jurisdiction over the complaint from the department to the
administrative law judge. The plaintiff has no complaint
about how the first complaint was processed by the depart‐
ment. Rather, she claims discrimination in the department’s
treatment of her during the EEOC proceeding.
Anyway a complainant’s failure to exhaust administra‐
tive remedies prior to bringing suit against her employer
“does not preclude establishing the claim in federal court
when the failure to amend the charge to reflect a new claim
is due to the fault of the EEOC.” Albano v. Schering‐Plough
Corp., 912 F.2d 384, 386–88 (9th Cir. 1990). EEOC Manage‐
ment Directive 110, ch. 5, §§ IV(D)(1), IV(D)(3)(a) (Nov. 9,
1999), states that “a complainant … dissatisfied with the
processing of his/her pending complaint … may present
these concerns” to the administrative law judge. The plaintiff
did so, and the judge should have either told her about the
spin‐off regulation and that it was not too late for her to
amend her original complaint, or, better yet, have accepted
her new claim and consolidated it with the existing com‐
plaint—once a complaint has reached the hearing stage, con‐
solidation of similar complaints is to be done by the adminis‐
trative law judge presiding over the hearing, rather than by
No. 15‐1291 9
the complainant. 29 C.F.R. § 1614.606; Federal Sector Equal
Employment Opportunity, 64 Fed. Reg. 37644‐01 (July 12,
1999). The administrative law judge overlooked consolida‐
tion but EEOC OFO could have consolidated the claims on
appeal, and that would have kept her second claim alive. Be‐
cause the EEOC administrative law judge directed Moreland
to file a separate complaint and EEOC OFO failed to consol‐
idate her separate complaint with the original, it is the
EEOC’s fault that the retaliation claim did not become part
of the original case. So the district court erred in dismissing
the plaintiff’s suit. The judgment is therefore reversed and
the court directed to permit the plaintiff to proceed with her
claim that she was a victim of retaliation in violation of Title
VII.
REVERSED, AND REMANDED WITH DIRECTIONS.
APPENDIX: TIMELINE OF THE PROCEEDINGS IN THIS CASE
Briefly: Title VII delegates to the employing federal agency
the responsibility for conducting the initial investigation into
charges of discrimination. 42 U.S.C. § 2000e‐16. If the agency does
not dismiss the complaint on procedural grounds, the complain‐
ant can ask the employing agency to issue a final decision or can
request a hearing before an EEOC administrative law judge, in
which event the employing agency can decide whether to accept
the decision of the administrative law judge. Scott v. Johanns, 409
F.3d 466, 468 (D.C. Cir. 2005). The employing agency’s decision is
reviewable by EEOC OFO. Id. (We have simplified the description
of the actual process.)
Step One: Complainant meets with the employing agency’s
EEO Counselor to attempt to resolve the complaint amicably. 29
C.F.R. § 1614.105(a); Lapka v. Chertoff, 517 F.3d 975, 981 (7th Cir.
2008).
10 No. 15‐1291
∙ Moreland contacts a FEMA EEO Counselor on March 15,
2011, the same day that she learns, during the hearing be‐
fore the EEOC administrative law judge on her first
charge, that DHS’s witnesses were being compensated for
time and travel. Her initial interview with the EEO Coun‐
selor takes place three days later.
∙ The Counselor contacts the lawyer representing DHS in
the EEOC hearing in an attempt at an informal resolution
of her second charge. The lawyer contends that Moreland
was responsible for her own travel expenses because she
was in “no‐pay” status, and that the other witnesses had
been paid because otherwise they would have had no in‐
centive to attend the hearing. No resolution of the dispute
is reached.
Step Two: If no informal resolution is reached, the complain‐
ant is issued a Right to File a Formal Complaint letter, and can
then file a complaint with the employing agency. 29 C.F.R.
§ 1614.105(d).
∙ Things move quickly: the Counselor issues Moreland a
Right to File a Formal Complaint letter on March 23.
∙ She files a formal complaint with DHS on the time and
travel issue.
Step Three: The agency then reviews the complaint and de‐
termines whether the case should be dismissed on procedural
grounds. 29 C.F.R. § 1614.107. If not, the agency will conduct an
investigation, id. § 1614.108(a), and when it’s completed will in‐
form the complainant that he or she can request either a hearing
before an EEOC administrative law judge or an immediate final
decision by the employing agency. Id. § 1614.108(f); Scott v. Jo‐
hanns, supra, 409 F.3d at 468.
(a) If the agency dismisses the complaint or the complainant
requests an immediate final decision by the agency, the
No. 15‐1291 11
agency’s decision is appealable immediately to EEOC
OFO. 29 C.F.R. § 1614.401(a); Robbins v. Bentsen, 41 F.3d
1195, 1198 (7th Cir. 1994).
∙ In July 2011 DHS dismisses Moreland’s formal time
and travel expense complaint as a “spin‐off” of her first
complaint. It doesn’t tell her that she can still amend
her first complaint, as she could because while the
hearing on that complaint was long over the adminis‐
trative law judge had not yet issued his final decision.
Later DHS argues that it told her in its dismissal letter
to amend her first complaint to claim reimbursement
of time and travel expense, but the text of the letter
does not support that characterization. The letter told
her that her claim “must be raised within the underly‐
ing complaint” but did not explain what mechanism
was available to her to do so.
(b) If the complainant has asked for a hearing before an ad‐
ministrative law judge, the employing agency decides
whether to adopt the administrative law judge’s decision,
thus making it final, or, if the agency disagrees with the
decision, whether to appeal the decision to EEOC OFO. 29
C.F.R. § 1614.110; Watson v. Henderson, 222 F.3d 320, 321
(7th Cir. 2000).
∙ That was the status of Moreland’s first charge of dis‐
crimination when she discovered that the FEMA wit‐
nesses were being paid for their time and travel while
she was not. Thus DHS’s processing of her initial
charge was completed by the time her second claim
arose.
∙ After the administrative law judge rendered his deci‐
sion on her first complaint, DHS issued its own deci‐
sion, refusing to implement the judge’s decision and
instead appealing it to EEOC OFO.
12 No. 15‐1291
Step Four: The complainant can appeal an agency’s final de‐
cision, or the dismissal of a complaint, to EEOC OFO. 29 C.F.R.
§ 1614.401; Robbins v. Bentsen, supra, 41 F.3d at 1198–99.
∙ Moreland appeals DHS’s dismissal of her second com‐
plaint in July or August of 2011.
∙ In August the administrative law judge issues his deci‐
sion on her first complaint, finding discrimination.
∙ In September DHS issues its decision refusing to im‐
plement the administrative law judge’s decision. In‐
stead it appeals to EEOC OFO. Moreland also files a
notice of appeal, but as she obviously is not challeng‐
ing the administrative law judge’s decision her notice
merely opposes DHS’s appeal. It does not occur to her
to lodge her second complaint in the appeal proceed‐
ing brought by her antagonist, DHS, in her first case.
Nevertheless her appeal from the dismissal of her sec‐
ond complaint is pending before EEOC OFO at the
same time. In short, by September 2011 both her claims
are pending on appeal before that agency.
Step Five: EEOC OFO issues its final decision. 29 C.F.R.
§ 1614.405; Robbins v. Bentsen, supra, 41 F.3d at 1199.
∙ In March 2012 it affirms DHS’s dismissal of Moreland’s
second complaint but advises her in a footnote to raise
her travel and time expense issues in her pending ap‐
peal from the dismissal of her first complaint. Instead
she requests reconsideration by EEOC OFO.
∙ In August EEOC OFO denies Moreland’s request for
reconsideration.
∙ In November she files a pro se federal suit under Title
VII against DHS regarding the time and travel expense
issue.
No. 15‐1291 13
∙ In September 2013 EEOC OFO affirms the administra‐
tive law judge’s findings regarding Moreland’s first
complaint but does not address the time and travel ex‐
pense issue.