Exhaustion of Administrative Remedies
In her Title VII case, the plaintiff, Roxanne K. Symko, alleged that her former employer, the United States Postal Service (USPS), illegally discriminated against her. The USPS moved to dismiss the complaint on the ground that Symko failed to timely exhaust administrative remedies because she filed her formal complaint of discrimination 10 days late. The court excused the untimely filing of the complaint and held that Symko had exhausted administrative remedies. Symko v. Potter, DDC, No. 04-1434 (RWR) (8/30/07).
Symko had sought counseling through the EEO office within the USPS. The USPS declined to resolve her informal complaint and notified her that she had the right to file a formal complaint within 15 days. Symko sent a letter to the USPS advising it that she intended to file a complaint, and asking for a 10-day extension. USPS did not respond, and Symko filed her complaint and then hired an attorney.
The USPS did not dismiss her complaint at that time. Instead, the complaint was “accepted for investigation.” The EEO investigator filed his report and Symko then requested a hearing before an EEOC administrative judge. Later, Symko withdrew her request for a hearing, intending to pursue her claims in federal court. The USPS issued its final decision, dismissing Symko’s complaint as untimely because it was filed more than 15 days after she had received notice of her right to file a formal complaint. Symko filed a complaint in federal district court. The USPS filed a motion to dismiss on the ground that Symko failed to timely exhaust her administrative remedies.
The EEOC’s regulations require that if an employee’s complaint is not resolved through informal counseling, the employee must file any formal complaint within 15 days of receiving notice from the agency of the right to file a formal complaint. Complainants must timely exhaust these administrative remedies before bringing their claims to court. However, these time limits are subject to equitable tolling, estoppel, and waiver.
After first finding that Symko’s letter notifying the agency that she “intended” to file a formal complaint was not equivalent to a formal complaint, the court asked whether equity required that Symko’s formal complaint be deemed timely filed. The court noted that “exhaustion is not an end in itself”; it is a practical and pragmatic doctrine that “must be tailored to fit the peculiarities of the administrative system Congress has created.” Accordingly, the court concluded that it was evident that in the rather unusual circumstances of this case, the purpose of the exhaustion doctrine was satisfied. Symko was diligent throughout in pursuing her rights. She did not simply file late and then ask her untimeliness to be excused. Rather, she sent a letter specifically stating her intent to file a formal complaint and seeking 10 additional days. Symko then filed her complaint. Moreover, during that entire time she was proceeding pro se.
Courts have excused parties, particularly those acting pro se, who make diligent but technically defective efforts to act within a limitations period. Moreover, the court noted that the Postal Service’s ability to investigate the merits of Symko’s claim was not prejudiced by her 10-day delay in filing her complaint but that Symko would be prejudiced by a dismissal now. Finally, even though the Postal Service had no express regulatory obligation to respond to Symko’s request for additional time, it did have an obligation to “process dismissals expeditiously.” Yet, despite having all the relevant facts at its disposal before it accepted Symko’s complaint for investigation, it completely ignored the issue of timeliness for 2½ years.
This decision, although instructive, should be viewed cautiously by federal employees filing EEO complaints. It is always better to file your formal complaint within the 15-day requirement then take the chance that a judge will waive the time limits. It was the particular facts and circumstances of this case – the actions of Symko and the USPS- that resulted in the ruling. It would not behoove any complainant to take away from this case the lesson that he or she can ignore the 15-day time limit.