United States Court of Appeals
For the First Circuit
No. 04-2638
JUAN A. PADRÓ,
Plaintiff, Appellant,
v.
ELAINE L. CHAO, Secretary of Labor,
United States Department of Labor,
Defendant, Appellee,
ROBERT J. SEMLER,
Regional Administrator for the Employment and Training
Administration for Region I, Boston,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Charles B. Swartwood, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Liam C. Floyd, with whom Armando J. Acosta was on brief, for
appellant.
Rayford A. Farquhar, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief, for
appellee.
June 28, 2006
LIPEZ, Circuit Judge. On March 19, 2001, Juan A. Padró
brought suit against Elaine L. Chao, Secretary of Labor, and Robert
J. Semler, Regional Administrator for the Department of Labor's
Employment and Training Administration for Region I, Boston
(collectively, "Defendants"), alleging employment discrimination on
the basis of national origin and retaliation for asserting his
employment rights. He subsequently amended his complaint to add
further claims of discrimination. On summary judgment, the
magistrate judge dismissed Padró's action in its entirety because
of the failure to exhaust his administrative remedies. Although
the magistrate judge correctly granted summary judgment on some of
Padró's claims, he failed to address others. As a result, granting
summary judgment on the entirety of Padró's claim was an error.
Therefore, we must vacate part of the judgment and remand for
further proceedings.
I.
Padró began working for the Employment and Training
Administration of the Department of Labor ("DOL") in 1972. In 1982
and 1987, respectively, Padró filed two Equal Employment
Opportunity ("EEO") complaints for employment discrimination. He
settled these two EEO complaints in 1990. In November 1986, Padró
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was assigned to the position of Regional Monitor Advocate ("MA").1
Padró remained in the MA position, at a pay grade of GS-13, for the
next fifteen (15) years, without reassignment or promotion.
In March 1999, Padró filed an informal complaint2 (the
"1999 EEO claim") with the DOL alleging continuing discrimination
based on national origin and retaliation for filing his prior
complaints. On or about June 30, 1999, Padró received a telephone
call from DOL EEO Counselor Zenon Brena. During that conversation,
Brena told Padró that the agency would not mediate his informal
complaint and that he had fifteen days on receipt of his NOFI
letter to file his formal complaint. The NOFI letter arrived on or
about July 12, 1999. Padró, acting pro se, did not file his formal
complaint until August 11, 1999, after the fifteen days had
1
"Regional Monitor Advocate" was the title given to Padró's
"Labor Employment Specialist" position. An MA handled the
implementation of regulations governing migrant farm workers for
his particular Region. In Padró's Region, New England, the migrant
workers were predominantly Puerto Ricans. Padró spoke Spanish as
his first language but was also fluent in English.
2
The term "informal complaint" is used to distinguish the
initial complaint a government employee must file with his own
agency (or department) -- which gives the agency time to
investigate and decide whether the dispute can be mediated -- from
a "formal complaint", which an employee later files with the agency
on receipt of a Notice of Final Interview ("NOFI") letter from his
agency, denying mediation. The formal complaint, if decided
against the employee, can then be appealed to the EEOC. If the
government employee is unsatisfied with the EEOC's decision, that
employee may file a civil action in federal district court. See,
e.g., National Nuclear Security Administration, "EEO Complaint
Process", available at http://www.doeal.gov/eeo/complaints.html
(last visited June 17, 2006).
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elapsed. Pursuant to 29 C.F.R. § 1614.105(d), the DOL dismissed
his complaint for failure to file within the fifteen-day time
period. On January 23, 2000, Padró appealed this dismissal. On
May 10, 2000, the EEOC denied Padró's appeal, also on the ground
that he had failed to act in a timely fashion. On March 19, 2001,
Padró filed suit in federal district court to appeal the dismissal.
Meanwhile, on January 22, 2001, Padró's request to attend
a training conference was denied (the "Sturbridge" conference). As
a result, Padró filed a second EEO informal complaint on April 18,
2001 (the "2001 EEO claim"), again alleging continuing
discrimination based on national origin and reprisal for his prior
EEO activities. This second EEO complaint also added a hostile
work environment claim. On June 4, 2001, the DOL accepted the
second EEO claim for investigation. On March 16, 2002, the DOL
dismissed this second EEO claim, pursuant to 29 C.F.R.
§ 1614.107(a)(3), "for being a matter that is pending in a United
States District Court."3 On September 16, 2002, the EEOC affirmed
3
In relevant part, 29 C.F.R. § 1016.107, entitled "Dismissals
of complaints" states:
(a) Prior to a request for a hearing in a case, the
agency shall dismiss an entire complaint:
. . .
(3) That is the basis of a pending civil action in a
United States District Court in which the complainant is
a party provided that at least 180 days have passed since
the filing of the administrative complaint, or that was
the basis of a civil action decided by a United States
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the DOL's dismissal of the 2001 EEO claim pursuant to 29 C.F.R.
§ 1614.107(a)(3) and advised Padró of his right to file a civil
action in district court.
While Padró could have filed his second EEO claim as a
separate civil action in district court, he chose to consolidate
his 1999 and 2001 EEO claims into a single district court action.
On December 17, 2002, Padró moved to amend his first complaint,
which focused on his 1999 EEO claim, in order to add the 2001 EEO
claim. The motion was granted on January 23, 2003. On July 18,
2003, after discovery, Defendants moved for summary judgment.
Following oral argument, the magistrate judge granted Defendants'
motion, holding that Padró had failed to exhaust his administrative
remedies because he had "filed his administrative complaint after
the applicable filing deadline." This appeal followed.
II.
A. Standard of review
We review a district court's grant of summary judgment de
novo. Johnson v. Gordon, 409 F.3d 12, 16 (1st Cir. 2005). An
order granting summary judgment should be reversed if "there
existed any factual issues that needed to be resolved before the
legal issues could be decided." Sabree v. United Bhd. of
Carpenters & Joiners Local No. 33, 921 F.2d 396, 399 (1st Cir.
District Court in which the complainant was a party;
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1990) (quoting Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st
Cir. 1989)). When reviewing the facts cited by the party moving
for summary judgment, those facts are reviewed in the light most
favorable to the non-moving party, and all reasonable inferences
are drawn in favor of that party. See Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 820 (1st Cir. 1991). Here, that party is Padró.
B. The magistrate judge's order and the 1999 EEO claim
In his decision granting Defendants' motion for summary
judgment, the magistrate judge focused exclusively on the 1999 EEO
claim in Padró's amended complaint. The facts the magistrate judge
relied on in his decision only describe the factual and procedural
history of Padró's 1999 EEO claim. There is no mention of the 2001
EEO claim even though the magistrate judge granted summary judgment
on that claim.
In explaining his decision, the magistrate judge
recounted Defendants' argument that they were entitled to summary
judgment "because Mr. Padró failed to exhaust administrative
remedies for his claims of retaliation and discrimination."
Relying on this argument alone, the magistrate judge concluded that
"a failure by Mr. Padró to file a formal complaint within the
fifteen day period specified in the regulations, absent a showing
of excuse by waiver, estoppel or equitable tolling, would bar him
from filing a civil action based on that discriminatory complaint."
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The magistrate judge devoted the balance of his decision
to an explanation of why the doctrine of equitable tolling -- which
is available to a plaintiff who is "excusably ignorant" of the
statutory filing period and has been affirmatively misled by the
opposing party -- did not apply to Padró's complaint. See Thomas
v. Eastman Kodak Co., 183 F.3d 38, 53 (1st Cir. 1999); Mercado-
Garcia v. Ponce Fed. Bank, 979 F.2d 890, 896 (1st Cir. 1992). The
magistrate judge found that "[t]here [wa]s no factual or legal
basis to apply the doctrine of equitable tolling in this case"; and
that Padró had "not specifically asserted claims of waiver,
estoppel or equitable tolling . . . ." The magistrate judge
explained that Padró rather "argue[d] in his memorandum that the
time limitation should not be imposed in his case because the
discrimination was a continuing violation." Finding no merit to
this argument, the magistrate judge granted Defendants' motion for
summary judgment as to Padró's amended complaint, which included
both the 1999 and 2001 EEO claims.
Padró does not appeal the magistrate judge's dismissal of
his 1999 EEO claim. As the magistrate judge pointed out in his
order, "Mr. Padro admits that the filing of his [1999] formal
complaint was untimely." But Padró emphasizes that his "whole case
was dismissed [by the magistrate judge] for failure to exhaust
administrative remedies" (emphasis added) even though his 2001 EEO
claim -- now part of his complaint as the result of an amendment --
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was timely filed. This disposition of his 2001 claim, he insists,
was an error.
B. The 2001 EEO claim
In an effort to defend the magistrate judge's decision,
the government notes his reference in the body of his decision to
Padró's continuing violation claim and the footnote attached to
that reference: "[e]ven if I were to consider the substance of the
'continuing violation' argument proposed by Mr. Padro in his
memorandum, there are insufficient facts to support such a
contention." The government argues that the magistrate judge's
reference to a "continuing violation" claim means that the
magistrate judge "was fully cognizant of Padro's second EEOC
Complaint being separate and distinct from his first EEOC
complaint."
We are not convinced. In the body of his opinion, the
magistrate judge links Padró's continuing violation argument to
what he thought was Padró's attempt to circumvent the time
limitation period applicable to his 1999 EEO claim. This time
limitation issue has nothing to do with Padró's 2001 EEO claim. To
the extent that the government argues that the magistrate judge's
reference in his footnote to the "substance" of Padró's continuing
violation argument is a separate reference to Padró's 2001 claim,
we note that Padró's 1999 claim also set forth a continuing
violation argument. This oblique reference in a footnote does not
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assure us that the magistrate judge analyzed Padró's 2001 claim at
all, especially since every fact mentioned in the opinion relates
to the 1999 claim.4
Moreover, the government's own actions belie its position
that the 2001 EEO claim was addressed by the magistrate judge. The
DOL dismissed the 2001 EEO claim on March 16, 2002 "for being a
4
During the oral argument on Defendants' motion for summary
judgment, the magistrate judge and Padró had the following
exchange, in which Padró unmistakably advises the magistrate judge
that there were two separate cases, and two distinct complaints,
before him:
Padró: First of all, I believe that you made an
observation here, your Honor, and it is appropriate to
say that there were two cases that we are talking about
it. In the government document it sort of, the second
one is mentioned but it's broad painting a brush . . . .
And I believe that to, it's appropriate to focus on the
fact that there are two separate cases that we are
dealing with although they have been consolidated.
Magistrate Judge: Why don't you tell me what those cases
are?
. . .
Padró: Yes, the first case that was filed on 3/19/01.
And the second case -- that was filed by me over motion
of consolidation on December, some time in December,
almost two years subsequent to it.
. . .
Magistrate Judge: So what you're telling me is that in
your view there's one case which was filed on 3/19/01,
and you're saying a second case was filed on 12/17/02?
Padró: From the start of having filed in court, from the
point of the administrative process they were two
distinct complaints. (Emphasis added.)
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matter that is pending in a United States District Court." In its
affirmation of this dismissal on September 16, 2002, the EEOC
reasoned that "the claims raised [in the first district court
action] encompass the claim raised in the [2001 EEO claim]." But
it was not until December 17, 2002 that Padró moved to amend his
first complaint, which focused on his 1999 EEO claim, to add the
2001 EEO claim. That motion was granted on January 23, 2003.
Padró's 2001 EEO claim was not a matter pending in the United
States District Court at the time the DOL and the EEOC dismissed
that claim.
Once the DOL considered the two EEO complaints one and
the same, it has never addressed them independently, on the merits
or otherwise. For example, after the magistrate judge allowed
Padró to amend his initial complaint and add allegations from his
2001 EEO complaint, the DOL did not file an amended answer to
respond to the new allegations. Additionally, even now, the
government has not defended the EEOC's affirmation of the DOL's
dismissal of the 2001 EEO complaint, choosing instead to address
the 1999 EEO complaint alone.5 The 2001 EEO complaint has been
neglected by everyone -- the DOL, the EEOC, and the magistrate
judge -- except Padró himself.6
5
It appears that the EEOC conflated Padró's two EEO claims,
considering overlap to be the same as identity.
6
In his motion to consolidate, Padró noted that "[t]he EEOC
accepted and investigated [his 2001 EEO complaint] as a timely
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In comparable situations, when a district court has
granted summary judgment on a complaint while overlooking legal
claims properly before the court, we have remanded for further
analysis by the district court. For example, in Colón-Santiago v.
Rosario, 438 F.3d 101 (1st Cir. 2006), we stated that "[w]e have
previously remanded cases to the district court where there is at
least one significant legal issue, not squarely addressed by the
district court, that remains unresolved." Id. at 112 (internal
citation, brackets, and quotation marks omitted). In In re San
Juan DuPont Plaza Hotel Fire Litig., 45 F.3d 564 (1st Cir. 1995),
we stated that when "there [] remain[s] unresolved a significant
legal issue, not squarely addressed by the district court, [] we
are persuaded that a remand is the most appropriate solution." Id.
at 568. Here, the magistrate judge did not address Padró's
continuing violation theory of national origin discrimination, his
retaliation claim, or his hostile work environment claim as set
forth in his timely 2001 EEO claim. The court should have done
that. We remand for that purpose.
separate complaint. [I] also considered the Civil Action before
the Court and the administrative complaint separate and distinct
cases, although . . . the resolution of the administrative
complaint [the 2001 EEO complaint] would have also resolved the
captioned civil action [the 1999 complaint], in as much as both
cases entail charges of continuing discrimination." He also asked
that "if the Court disallows the motion, [I] respectfully request[]
that the attached amendment be accepted as a new civil action."
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III.
In summary, we affirm the magistrate judge's entry of
summary judgment on Padró's 1999 EEO claim. We vacate the entry of
summary judgment on his 2001 claim, and remand for consideration of
that claim by the district court. Costs are awarded to appellant.
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