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United States Court of Appeals for the Federal Circuit
04-6004
SHERRY M. BRITTON,
Petitioner,
v.
OFFICE OF COMPLIANCE,
Respondent,
and
OFFICE OF ARCHITECT OF THE CAPITOL,
Respondent.
Jeffrey H. Leib, Attorney At Law, of Washington, DC, argued for petitioner.
Eilin Chiang, Attorney, Office of Compliance, of Washington, DC, argued for
respondent Office of Compliance. With her on the brief was Peter Ames Eveleth,
General Counsel. Of counsel was James T. Abbott.
Dana J. Martin, Attorney, Appellate Staff, Civil Division, United States
Department of Justice, of Washington, DC, argued for respondent Office of the Architect
of the Capitol. With her on the brief were Peter D. Keisler, Assistant Attorney General
and Marleigh D. Dover, Attorney. Of counsel was Matthew M. Collette.
Appealed from: Board of Directors of the Office of Compliance
United States Court of Appeals for the Federal Circuit
04-6004
SHERRY M. BRITTON,
Petitioner,
v.
OFFICE OF COMPLIANCE,
Respondent,
and
OFFICE OF ARCHITECT OF THE CAPITOL,
Respondent.
__________________________
DECIDED: June 17, 2005
__________________________
Before SCHALL, LINN, and PROST, Circuit Judges.
PROST, Circuit Judge.
Sherry M. Britton petitions for review of two decisions of the Board of Directors of
the Office of Compliance (“Board”), Case No. 01-AC-346 (CV,FM,RP). In the first
decision, issued June 3, 2003, the Board affirmed Hearing Officer Warren R. King’s July
26, 2002 dismissal of Britton’s claim for wrongful denial of leave under the Family
Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. (2000), for failure to
make a timely request for counseling. The Board’s second decision, on February 2,
2004, dismissed Britton’s petition for review of Hearing Officer King’s November 5, 2003
decision on the ground that it was not timely filed. We agree with the Board that the
request for counseling and the petition for review were untimely, and therefore we
affirm.
I. BACKGROUND
Petitioner Britton is an employee of the furniture division of the Architect of the
Capitol. Her son has been diagnosed with certain behavioral disorders. On April 13,
2000, while meeting with at least three co-workers and a client at the offices of the
Architect, she was informed by phone that her son was in trouble at school and was
going to be taken into police custody. Upon learning this news, she cursed loudly into
the phone and left the office without notifying anyone. She stayed away the next day,
April 14, finally informing her supervisor why she was gone at 3:00 P.M. on that second
day. At that time, she also stated that she would be absent from work on April 17, and
she verbally requested FMLA leave for April 13, 14, and 17, because she believed the
incident at her child’s school might have had some relation to his medical condition.
Upon her return to work on April 18, she submitted a pair of applications for FMLA
leave, seeking three hours of leave for April 13, eight hours of leave for April 14, and
eight hours of leave for April 17.
Meanwhile, Britton’s supervisor, Bob Garnett, recommended on April 13 that
Britton receive a five-day suspension for being AWOL and using profanity in the office.
Later, he received her Application for Leave forms, which were both dated April 18. The
first form contained a request for three hours of FMLA leave for April 13. Garnett
denied this request, marking the form “Not Approved: employee left without telling her
supervisors she was leaving show AWOL 3 hours.” The second form included Britton’s
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request for FMLA leave for April 14 and April 17. Garnett also denied this request,
noting: “Not Approved: 8 hours for 17th” and, on the next line, “pending
documentation” and, below that, “Not approved for 4/14/00 employee did not call in until
3:10 PM show 8 hours AWOL.”
Britton submitted medical documentation in response to Garnett’s “pending
documentation” note and received two hours of annual leave and six hours of leave
without pay for April 17. This resolved the FMLA issue with respect to April 17.
However, in a letter dated June 23, 2000, Garnett informed Britton that he was
maintaining his proposal of a five day suspension for her conduct on April 13, including
use of profanity and being AWOL. Later, on August 18, 2000, the Chief of the
Management, Employee and Labor Relations Branch of the Architect’s office wrote to
Britton to advise her that she was eligible and approved for FMLA leave on a going-
forward basis (i.e., beginning on August 18), based on the notification Britton provided
to the office on April 24, 2000. The letter made no reference to any of Britton’s April 18
requests for leave.
On November 15, 2000, after considering Garnett’s proposal for discipline, the
Architect of the Capitol held Britton responsible for uttering profanity at work and leaving
the office without permission from her supervisor. However, he rejected the proposed
suspension and reduced Britton’s penalty to an Official Reprimand. The Reprimand
was pulled from her personnel file before this case first came before the Hearing Officer,
but (according to Britton’s counsel) remained usable for progressive discipline purposes
for a period of three years after it was issued. That three-year period expired in 2003.
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Britton filed a complaint with the Office of Compliance, alleging three counts.
First, she claimed that she was wrongly denied leave under the FMLA for April 13 and
14. Second, she charged that the Official Reprimand constituted retaliation for her
having requested FMLA leave. Third, she alleged that the pattern of decisions resulting
in her being reprimanded and denied FMLA leave created a hostile work environment.
At a hearing on July 26, 2002, Hearing Officer King dismissed all of Britton’s
claims. On June 3, 2003, the Board affirmed the dismissal of the FMLA claim because
Britton did not request counseling within 180 days of the denial of leave. However, the
Board remanded the retaliation count because her counseling request occurred within
180 days after some of the alleged retaliatory acts. The Board also determined that
Britton’s allegation of disciplinary retaliation for exercising her FMLA rights was sufficient
to survive a dismissal motion on the pleadings.
On remand, the Hearing Officer, counsel for Britton, and counsel for the Architect
all agreed at an August 21, 2003 hearing that the Board had not reversed or remanded
the Hearing Officer’s initial dismissal of the hostile work environment claim. Only the
retaliation claim was remanded. On this claim, the Hearing Officer again ruled for the
government in an opinion dated November 5, 2003. The Hearing Officer provided two
alternative grounds for his ruling: that an Official Reprimand did not rise to the level of
an “adverse action,” a requirement in an action for retaliation; and that Britton failed to
demonstrate a causal connection between her request for FMLA leave and the
purported adverse action. According to a cover letter regarding the Hearing Officer’s
decision, copies of the decision were transmitted to Britton’s counsel by fax and by U.S.
certified mail, return-receipt requested. Britton and her attorney do not acknowledge
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receiving the fax. Britton contends (and the government does not dispute) that the
earliest date she could have received the mailed copy is November 6, 2003, one day
after it was mailed.
On December 8, 2003, Britton filed a petition for review of the remand decision
(her “second petition”), and the Board dismissed this petition for untimeliness, since it
was filed more than thirty days after the appealed decision was entered into the records
of the Office of Compliance.
II. DISCUSSION
The Court of Appeals for the Federal Circuit has jurisdiction over appeals by
parties aggrieved by final decisions of the Board. 2 U.S.C. § 1407(a)(1)(A) (2000).
Britton appeals the Board rulings that affirmed the dismissal of her claims and
dismissed her second petition. First, she challenges the Board’s conclusion that the
Architect did not have to apply the FMLA retroactively when she requested leave after
two and a half days of unexplained absence from work. She further appeals the related
conclusion that this claim was time-barred because of her failure to request counseling
within the 180-day period required by law. She seeks a remand of this claim to the
Hearing Officer. Second, she asks this court to reverse the Board’s dismissal for
untimeliness of her petition for review of the Hearing Officer’s November 5, 2003
decision on retaliation. She contends that the retaliation issue should be remanded to
the Board for a decision on the merits.
Substantive issues related to the retaliation and hostile work environment claims
are not presently on appeal.
04-6004 5
A. Standard of Review
The Federal Circuit reviews decisions of the Board to determine whether they
were (1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with
law; (2) not made consistent with required procedures; or (3) unsupported by substantial
evidence. 2 U.S.C. § 1407(d) (2000).
B. Arguments
Britton contends that the FMLA claim should not have been dismissed for failure
to timely request counseling, because the Architect did not give her a clear answer on
the grant or denial of her requests for leave for April 13 and 14 more than 180 days
before her request for counseling. On the merits of the FMLA claim, Britton asserts that
the FMLA and the Board’s regulations supersede the Architect’s internal leave policy.
She claims that she complied with the Board’s regulations by giving notice “of the need
for FMLA leave as soon as practicable under the facts and circumstances of the
particular case.”
Britton also contends that her second petition was timely. She argues that a
plain reading of Procedural Rules section 1.03(b) and (c) of the Office of Compliance
establishes that the extension of deadlines for mailing time applies to every prescribed
period set forth in the Office’s rules, not just to those that are explicitly based on the
service of a document on a party.
The government responds that Britton was notified in the agency’s response to
her April 18 applications that her requests for leave on April 13 and 14 were denied. If
that were not enough, the government characterizes the August 18 letter’s grant of
leave on a going-forward basis as an implicit denial of any requests for earlier leave that
04-6004 6
may have been outstanding. Finally, the government contends that the dismissal of
Britton’s claim can also be affirmed on alternative grounds, namely that Britton was not
entitled to leave for April 13-14 because she did not request it or notify anyone until after
she was gone, late in the afternoon of the 14th.
The government also defends the Board’s decision to dismiss Britton’s second
petition for untimeliness. The government presents its own plain reading of the
Procedural Rules, pointing out that section 1.03(c) explicitly limits its reach to deadlines
based upon the service of a document or notice on a party. Because section 1.03(c)
does not apply, section 1.03(b)’s unequivocal statement that deadlines are measured
from the date of entry of a decision controls in this case, according to the government.
C. Analysis
This case presents two issues of timeliness: (1) whether Britton requested
counseling early enough to avoid dismissal of her claim for FMLA leave for April 13 and
14, and (2) whether 2 U.S.C. § 1406(a) and section 1.03 of the Office of Compliance’s
Rules of Procedure mean that the thirty-day time limit for petitions for review of
decisions of the Hearing Officer is measured from the date of entry of the decision or
from the date the petitioner receives the decision. The latter issue is one of first
impression for this court.
Additionally, Britton challenges the dismissal of her FMLA claim on the merits,
but we only need to reach that issue if we determine that her request for counseling was
timely.
04-6004 7
1. Untimeliness of the Request for Counseling
Regardless of whether Britton could prevail on the merits of her claim for FMLA
leave, we hold that this claim is procedurally barred because she did not request
counseling within 180 days of the denial of her request for leave. We are not persuaded
by Britton’s argument that she never received a clear denial of her request from which
that 180 days could be measured.
The Board and the Hearing Officer agreed that Britton had notice of the denial of
her request by August 2000, at the latest. Hearing Officer King found that Garnett’s
comments on the April 18 leave application forms notified Britton that her claims for
FMLA leave for April 13 and 14 were denied. Because Britton did not request
counseling until May 11, 2001, more than 180 days after this notification, the Hearing
Officer dismissed the FMLA claim. The Board found that the “mid-April and August
2000” documents “partially disapproved her request for FMLA leave”—“partially”
meaning that leave was denied for some of the requested dates and not others.
Accordingly, the Board affirmed the dismissal of this claim.
We also affirm. The Congressional Accountability Act of 1995 requires an
aggrieved employee of the Architect to make a “request for counseling . . . not later than
180 days after the date of the alleged violation.” 2 U.S.C. § 1402(a) (2000). Here, the
“alleged violation” is the denial of Britton’s request for FMLA leave for April 13 and 14.
The Board affirmed the Hearing Officer’s factual finding that Britton was informed of the
final denial of this FMLA request on or before she received the letter dated August 18,
2000. Although the timeliness issue arises as part of a motion to dismiss, pursuant to
which a complainant’s allegations are generally taken as true, the date Britton received
04-6004 8
notice is a jurisdictional fact; hence, it is subject to the substantial evidence standard of
review ordinarily applied to facts found by the Board. See Banks v. United States, 314
F.3d 1304, 1307-08 (Fed. Cir. 2003) (addressing the start date of the statute of
limitations for a takings claim as a jurisdictional fact). The record contains substantial
evidence that Britton knew of the denial of her request for FMLA leave in August 2000
or earlier.
Specifically, Garnett’s notes on the Application for Leave forms clearly state that
the requested leave is “Not Approved.” Implicitly, the Board found that only the request
for leave for April 17 was “Not Approved . . . pending documentation[,]” and the April 13
and 14 requests were denied outright. This reading of the forms is eminently
reasonable. The form that refers to April 13 does not contain any qualification of the
denial of leave. The other form has the words “pending documentation” between lines
about disapproval for the 17th and 14th. The note says “Not approved” with respect to
the April 14 request and repeats “Not approved” for the April 17 request. By contrast, it
includes the phrase “pending documentation” only once, directly under the words “Not
approved: 8 hours for 17th.” This strongly suggests, to say the least, that “pending
documentation” only applies to the April 17 request. Moreover, Britton admitted on
direct examination before Hearing Officer King that she learned within two weeks of
filing her applications that her April 13 and 14 requests were denied.
This conclusion is only bolstered by the August 18 letter. This letter informed
Britton that her FMLA leave was starting on the date of the letter, August 18, 2000. By
assigning this date as the start date of her leave, the Office of the Architect implicitly
04-6004 9
denied Britton’s leave requests for earlier dates, specifically April 13 and 14, to the
extent these requests were still outstanding.
The Board also noted Britton’s arguments that the August 18 letter altered the
time period of her FMLA eligibility and that the 180-day period should have started from
the Architect’s November 15, 2000 decision to reprimand her. By holding the FMLA
claim time-barred, the Board necessarily rejected these positions. This rejection was
proper; we see nothing in the August 18 letter that could conceivably have modified or
restarted the 180-day time limit.
Because substantial evidence supports the Board’s finding that Britton was
notified of the denial of her requests on or before August 18, 2000, we affirm the
dismissal of Britton’s FMLA claim for failure to timely request counseling.
2. Untimeliness of Petition for Review
Under Office of Compliance Procedural Rule Section 1.03
The Hearing Officer issued his decision rejecting Britton’s retaliation claim on the
merits on November 5, 2003. As noted above, the government contends that copies of
the decision were transmitted to Britton’s counsel by fax and by U.S. certified mail,
return-receipt requested. We assume that Britton did not receive the fax. The date
Britton received the mailed copy is unclear from the record, but the parties agree that it
was November 6 or later. A December 8 petition would have been timely under
Britton’s view of the law, because the thirty-day time period would have expired on
Saturday, December 6, 2003, and December 8 was the next business day. See Office
of Compliance R. Proc. § 1.03(b).
A complainant may file a petition for review “not later than 30 days after the entry
of the decision in the records of the office.” 2 U.S.C. § 1406(a) (2000). Britton contends
04-6004 10
that the petition was timely, because section 1.03(c) of the Rules of Procedure allows
extra days for compliance when a party must do some act within a prescribed period
“after the service of a notice or other document upon him or her.” When this rule
applies, the response period is computed from the actual date of receipt for documents
delivered by certified mail, return-receipt requested.
The rule does not apply in the present case. As the Board recognized, § 1406(a)
requires a petition for review to be filed a maximum of thirty days from “the date that the
hearing officer’s decision is entered into the Office’s record[,]” not the date of “the
service of a mailed notice or document on a person or party.” By its clear language,
section 1.03(c)’s extensions of time apply to a different class of deadlines—those based
on a party’s receipt of a document. They plainly do not, as Britton contends, apply to
“every prescribed period set forth in the statute and Procedural Rules.” Furthermore,
although the immediately preceding section 1.03(b) applies to “any action required or
permitted under these rules,” the Rules contain no suggestion that section 1.03(c) has
the same scope. For these reasons, we agree with the Board’s interpretation of the
applicable law and its resulting conclusion that Britton’s second petition was filed one
business day late. We therefore affirm the Board’s dismissal of Britton’s second
petition.
We have considered the other arguments of the parties and find them either
unpersuasive or unnecessary to resolve.
III. CONCLUSION
For the reasons stated above, we affirm the decision of the Board.
AFFIRMED
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