Fedweek Legal

On January 4, 2014, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Schlottman v. Perez, No. 12-5132.The D.C. Circuit upheld the dismissal ofSchlottman’s discrimination lawsuit for failure to meet all the necessary deadlines in the administrative process prior to taking the case into court (“failure to administratively exhaust”).

Schlottman was fired from his probationary position at the Department of Labor in 2009. He then tried to raise various claims regarding his removal at the Office of Special Counsel (OSC), the Merit Systems Protection Board and at his agency’s EEO office. After receiving his notice of right to file formal complaint from the EEO office in May 2009,Schlottman failed to file a formal EEO complaint within the 15 calendar day deadline; and so his EEO complaint was then dismissed when he later filed the formal complaint at the EEO office in September 2009.Schlottman also attempted to press his EEO claims in front of the OSC and MSPB in connection with other whistleblower reprisal claims, initiating his MSPB appeal in June 2009 after OSC dismissed his whistleblower reprisal complaint in April 2009 on an Independent Right of Action (IRA).Schlottman unsuccessfully appealed the EEO office’s dismissal to the EEOC Office of Federal Operations, and then took his case into federal district court.The district court dismissed his lawsuit, holding thatSchlottman’s failure to file his formal EEO complaint within the 15-day deadline constituted a failure to administratively exhaust his complaint, barring him from then suing in court.Schlottman appealed the district court’s dismissal to the D.C. Circuit.

The crux ofSchlottman’s argument at the D.C. Circuit was that his attempts to litigate his EEO claims at the MSPB constructively met the deadline for filing the formal discrimination complaint at the EEO office, citing to a “savings” provision in Title VII which deems EEO complaints to be timely filed even if the complainant sends the complaint to the wrong agency.Schlottman argued that since he filed his EEO claims at the MSPB (although the wrong agency) consistent with MSPB filing deadlines, his EEO claims should be deemed timely filed under the Title VII savings provision.

The D.C. Circuit disagreed, and upheld the dismissal ofSchlottman’s EEO claims.Writing for the panel, JudgeTatel held that the Title VII savings provision only would saveSchlottman’s EEO complaint if he filed with the MSPB before the EEO office’s filing deadline.Schlottman’s filing at the MSPB was several weeks past the 15 calendar day deadline for a formal EEO complaint (May 16 versus June 4).The court observed that transposing the IRA complaint deadlines onto the EEO process would create a risk of complainants trying to “save” otherwise-untimely EEO complaints by intentionally filing them at other agencies whose non-EEO complaint processes have longer filing deadlines.

As the court observed, this was not the first case where it dealt with federal employees baffled by the “complex and confusing,” “Rube Goldberg-like” administrative processes for federal-sector EEO complaints.Indeed, the court even had to resort to publishing an almost page-long chart in order to graphically explain the course ofSchlottman’s various cases. This serves as a reminder of the difficulty in navigating the federal sector EEO complaints process, containing many (often short) deadlines which can trap the unwary.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman& Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.