Jose Gomez, Plaintiff-appellant, v. Department of the Air Force, Etc., et al., Defendants-appellees, 869 F.2d 852 (5th Cir. 1989)

Plaintiff-appellant Jose Gomez (Gomez) appeals from the district court's dismissal of his complaint against defendant-appellee Edward C. Aldridge, Secretary, Department of the Air Force (the Air Force). The district court held that Gomez's suit was untimely because filed outside the thirty-day limitations period prescribed for his national origin discrimination complaint. 42 U.S.C. § 2000e-16(c); Bell v. Veterans Admin. Hospital, 826 F.2d 357 (5th Cir. 1987). We find that Gomez's claim was governed by the 180-day "no final agency action" provision of 42 U.S.C. § 2000e-16(c), see also 5 U.S.C. § 7702(e) (1) (C), rather than the thirty-day limitations period, and accordingly we reverse and remand for further proceedings consistent herewith.

Facts and Proceedings Below

Gomez was a civilian employed by the Air Force as a WG-9 painter. In the spring of 1985, the Air Force initiated action to remove Gomez from his job for failure to meet the physical requirements of a WG-9 painter. On June 27, 1985, Gomez was officially removed from his employment. Gomez appealed his dismissal to the Merit Systems Protection Board (the Board) alleging discrimination based on national origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (1976), and handicap (hypersensitivity to paint fumes) in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1976). Because Gomez's action was filed subsequent to passage of the Civil Service Reform Act, 5 U.S.C. § 7701 et seq. (1978), it is governed by the provisions of that Act. In addition, EEOC regulations, 29 C.F.R. Sec. 1613.414 et seq. (1987), are pertinent to the present action.

The Board issued an initial decision in Gomez's case on October 28, 1985. The Board sustained Gomez's dismissal, concluding that Gomez had not established a prima facie case of discrimination on either his national origin claim or his handicap claim. Gomez filed a petition for review, and on February 20, 1986, the Board denied Gomez's petition.

On March 25, 1986, Gomez filed a petition for review with the Equal Employment Opportunity Commission (EEOC). On December 21, 1987, more than one-and-one-half years after Gomez's petition was filed with the EEOC, the EEOC concurred with the Board on the national origin issue but was unable to concur or differ with the Board on the handicap issue.¹  The EEOC then "refer [red] the case to the Board for additional information or the taking of additional evidence on the issue of handicap discrimination." On the same day, December 21, 1987, the EEOC issued Gomez a Notice of Right to Sue letter.² 

On December 28, 1987, Gomez received the EEOC decision and the Right to Sue letter. On January 28, 1988, thirty-one days after receiving the Right to Sue letter, Gomez submitted his complaint³  to the district court alleging discrimination on the basis of national origin.⁴  The Air Force moved to dismiss for lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b) (1), because Gomez had failed to file his action, as required by 42 U.S.C. § 2000e-16(c), within thirty days of the EEOC's allegedly final decision on his national origin claim. The district court granted the Air Force's motion to dismiss and Gomez filed a timely appeal.

Discussion

In 1978, Congress passed the Civil Service Reform Act to enable most federal employees to appeal adverse employment decisions to the Board. 5 U.S.C. § 7701 et seq. Section 7702 of Title V provides the skeletal procedural framework for employees, like Gomez, who may appeal an adverse agency action to the Board and who allege that a basis for their action is discrimination.⁵  Section 7703(b) (2) of Title V clearly states that cases of national origin discrimination, subject to section 7702, are to be filed under Title VII, 42 U.S.C. § 2000e-16(c).⁶  See 5 U.S.C. § 7703(b) (2). Gomez's handicap discrimination claim would also be subject to Title VII if it were raised in federal court. 29 U.S.C. § 794a(a) (1) (Supp. III 1979); see also Wiggins v. United States Postal Service, 653 F.2d 219, 220 (5th Cir. 1981) (stating that when claimant relies on section 501 of the Rehabilitation Act he must seek review of the Board's decision by filing in accordance with Title VII, 42 U.S.C. § 2000e-16(c)).

In addition to the statutory framework, there are EEOC regulations that flesh out the procedures used in an appeals case involving an action appealable to the Board that contains a claim of discrimination. 29 C.F.R. Sec. 1613.401 et seq. Such cases, like Gomez's case, are referred to as "mixed cases."⁷  A mixed case may contain only an allegation of employment discrimination or it may contain additional nondiscrimination claims that are within the jurisdiction of the Board, but regardless of whether it contains solely discrimination claims or both discrimination and nondiscrimination claims, it must be based on an adverse agency action that is appealable to the Board.⁸  29 C.F.R. Secs. 1613.402(a) and (b); see also Williams v. Department of the Army, 715 F.2d 1485, 1487 n. 3 (Fed. Cir. 1983); Christo v. Merit Systems Protection Board, 667 F.2d 882, 883, 884 n. 1 (10th Cir. 1981). The detailed procedures for mixed cases are set out at 29 C.F.R. Sec. 1613 et seq.⁹ 

After Gomez received the Board's adverse decision, he submitted a petition for review with the EEOC. Once the EEOC decides to consider a petition, which they did in Gomez's case, the regulations provide that the EEOC shall consider the entire record, as supplemented by the Board if the EEOC refers the case to the Board for the taking of additional evidence, before rendering a decision. 29 C.F.R. Sec. 1613.416(c) and (d). After considering the entire record, the regulations state that the EEOC will take one of two actions; the EEOC will either: (1) concur with the Board's decision, or (2) issue a decision in writing that differs with the Board's decision.¹⁰  If the EEOC concurs with the Board's decision, then the claimant has thirty days from receiving notice of the concurrence to appeal to the district court. 29 C.F.R. Sec. 1613.421(d). If the EEOC differs from the Board's decision, then the case is returned to the Board for another layer of administrative appeals.¹¹  29 C.F.R. Secs. 1613.416-.420.

Depending on the type of administrative decision or on a lack of administrative decision, a claimant has the right, at various times, to file a civil action in federal district court.¹²  If the EEOC concurred with the Board's decision, then Gomez had thirty days to file in federal court. 29 C.F.R. Sec. 1613.421(d). But if there has been no final decision by the EEOC, the Board, or the Special Panel (see note 11, supra), after 180 days from the filing of Gomez's petition with the EEOC, then Gomez has timely filed suit in federal court. 29 C.F.R. Sec. 1613.421(i). The regulations' 180-day "no decision" provision appears to be a poorly worded and truncated version of a similar provision in Title VII, 42 U.S.C. § 2000e-16(c), see also Civil Service Reform Act, 5 U.S.C. § 7702(e) (1) (C).¹³  It is well-settled that agency regulations must be consistent with applicable statutory provisions. Spears v. Merit Sys. Protection Bd., 766 F.2d 520, 523 (Fed. Cir. 1985); Marshall v. Gibson's Products, Inc., 584 F.2d 668, 677-78 (5th Cir. 1978). Despite the government's contention that we should construe the regulatory provision to mean something other than what is provided for in Title VII, we are compelled to interpret the regulation in accordance with Title VII because it is the governing statute. Therefore, it is clear that Gomez can bring suit in federal court if there has been no final decision by the EEOC more than 180 days after the EEOC received his petition. Thus, the critical issue becomes whether the EEOC rendered a final decision as to Gomez's national origin claim by both rejecting it and severing it from the balance of the matters complained of by Gomez (handicap discrimination) in his challenge to his dismissal by appeal to the Board and petition for review to the EEOC.

In Gomez's case the EEOC stated that they concurred with the Board on the national origin issue and that they could neither concur nor differ with the Board on the handicap discrimination issue. Therefore, the EEOC stated that they were "referring the case" to the Board for additional evidence on the handicap issue.¹⁴ 

The Air Force asserts on appeal that the EEOC did not refer the entire original case to the Board, but rather the EEOC severed the national origin claim from the handicap claim, and only referred the handicap discrimination claim to the Board. Therefore, the national origin "case" was exhausted at the administrative level and the thirty-day limitations period in which to file a civil action was triggered. 42 U.S.C. § 2000e-16(c); 5 U.S.C. § 7702(e) (1); 29 C.F.R. Sec. 1613.421(d). Gomez filed his national origin discrimination case more than thirty days after notice of the EEOC's "final" decision and, therefore, his appeal is untimely.¹⁵ 

Gomez argues in response that the EEOC is not allowed to sever the national origin discrimination claim from his original case. Accordingly, Gomez asserts that the EEOC did not render a final decision on his case, but rather referred his original case to the Board for additional evidence to supplement the record in accordance with the regulations. 29 C.F.R. Secs. 1613.416(c) and (d). Therefore, Gomez argues, no final agency action has been taken on his case more than 180 days after he filed his petition with the EEOC and he is entitled to appeal his national origin claim to federal court. 42 U.S.C. § 2000e-16(c); 5 U.S.C. § 7702(e) (1) (C); 29 C.F.R. Sec. 1613.421(i).

The question of the EEOC's severance power presents this court with an issue of first impression. It is clear that district courts, pursuant to Rule 21, have the power to sever claims and have the claims proceed separately. Fed. R. Civ. P. 21 (1988). And this Court has held that where the power to sever exists and a severance has been ordered, with a final judgment then rendered disposing of one of the severed cases, the other remaining undisposed of, the time for appeal of the disposed-of case runs from the entry of the judgment therein, notwithstanding that the severance may have been erroneous. United States v. O'Neil, 709 F.2d 361, 370 (5th Cir. 1983).¹⁶  Thus, an improper severance by the EEOC, where the EEOC has the power to sever, would still require Gomez to file within thirty days of the final decision of the EEOC on his national origin claim.

Because of the novelty of the severance issue in mixed cases, we look for guidance to the statutory and regulatory framework, analogous precedent, and to the EEOC itself. There is no express statutory or regulatory provision, analogous to Rule 21, permitting the EEOC to sever claims in mixed cases. But as the Air Force correctly points out, there is also no provision expressly prohibiting severance by the EEOC in mixed cases. However, the statute and regulations, taken as a whole, establish a framework that encourages treating Gomez's appeal to the Board and petition for review to the EEOC as a single, nonseverable unit throughout the administrative appeals process. See 29 C.F.R. Secs. 1613.281, 1613.416; see also 5 U.S.C. § 7702(a) (1) (B) (explicitly requiring the Board to decide both discrimination and nondiscrimination issues before the case proceeds to the next level of appeals); Christo, 667 F.2d at 884 (same); Williams, 715 F.2d at 1490-91 (finding that policy considerations support a unitary appeal, as opposed to a bifurcated treatment, in mixed cases).

First, the regulations provide that when an employee is acting under the authority of Title VII, as Gomez is doing, the decision of an agency will be final only when the agency makes a determination on all of the issues in the complaint, including whether or not to award attorneys' fees or costs. 29 C.F.R. Sec. 1613.281.¹⁷  Because the next level of appeal in the chain of potential administrative or judicial appeals is triggered by the preceding agency's final decision, and finality requires resolution of all the issues in a complaint, the statutes and regulations encourage maintaining the case as a single unit throughout its duration.

In addition, the regulatory provisions regarding the possible courses of action by the EEOC, when fairly read, envision treating the case as a unitary action. See 29 C.F.R. Sec. 1613.416. Severing at the EEOC stage would create two separate administrative units, whereby one unit becomes immediately appealable to the district court and the other returns to the Board for further administrative processing. That action would then become appealable to the district court thirty days after it was finally decided or 180 days after filing with the EEOC if no final action was taken. 29 C.F.R. Sec. 1613.416; 5 U.S.C. § 7702 et seq. Such piecemeal resolution of a claimant's original complaint does not square with the above cited statutory provisions and is contrary to what the courts have done, under their severance powers, in other mixed cases.

In mixed cases that contain both discrimination and nondiscrimination claims, and therefore may typically present a stronger case for severance then one involving only discrimination claims, the courts have refused to countenance severance of the claims. See Hayes v. United States Gov't Printing Office, 684 F.2d 137, 138-140 (D.C. Cir. 1982) (finding that claimant had to bring his mixed case complaint to the district court as a single unit and could not sever his discrimination claim for review by the EEOC and have his nondiscrimination claim heard in federal court); Williams, 715 F.2d at 1487 (finding that Court of Appeals for the Federal Circuit did not have the power to bifurcate mixed case appeals into nondiscrimination cases [for federal appeals court review] and discrimination cases [for federal district court review]; Wiggins, 653 F.2d at 221 (same); Doyal v. Marsh, 777 F.2d 1526, 1535-37 (11th Cir. 1985) (stating that any mixed case should be treated as a single unit and the entire case is properly brought before the district court); Christo, 667 F.2d at 882 (same).

These cases are distinguishable from the present case insofar as they deal with federal courts' decisions regarding jurisdiction and severance in situations where there are mixed cases with both nondiscrimination and discrimination claims.¹⁸  See, e.g., Williams, 715 F.2d at 1489; Wiggins, 653 F.2d at 221. The instant case requires our review of whether the EEOC has severance power in a mixed case that alleges only discrimination grounds. While the factual patterns are distinct, many of the underlying reasons for nonbifurcation also apply to the present case. Severance would require simultaneous pursuit of relief through both the administrative and judicial channels on issues that often would require an investigation into the same facts. Also, the district courts would have to entertain multiple suits involving repetitious fact patterns over protracted periods of time. Both of these results potentially entail an unnecessary waste of judicial resources.¹⁹  Cf. Williams, 715 F.2d at 1489 (stating that bifurcation of one case between district and appeals courts wastes judicial resources and forces each court to consider the case in the absence of some claims that may be dispositive); Wiggins, 653 F.2d at 222 (same). Additionally, in the absence of a strong reason for severance, severance might burden the claimant with unnecessary litigation costs.²⁰ 

The statutory and regulatory framework and the available case law, while suggesting a unitary approach to Gomez's case, do not necessarily foreclose severance by the EEOC. As a federal court, we generally accord deference to an agency's administrative decisions, rule-making, and operating procedures, as well as to their interpretations of the governing statute. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S. Ct. 455, 461, 88 L. Ed. 2d 419 (1985) (" [a]n agency's construction of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with the expressed intent of Congress"); American Trucking Assoc. v. L.C.C., 722 F.2d 1243, 1248 (5th Cir. 1984) (stating that " [e]ven if an agency's interpretation would not be the one we would adopt if looking at a statute completely afresh, we ordinarily accept that agency's interpretation of its own statute if the interpretation 'has a reasonable basis in law' "). In the present case, we requested supplemental briefs addressing the EEOC's posture with regard to its power to sever in cases generally or in mixed cases. The briefs did not supply us with any evidence to support the power to sever. The Air Force did not refer to any other instances where the EEOC has severed cases, nor did they refer to any EEOC regulation, rule, standard operating procedure, internal memoranda, or other indicia of the EEOC's position with regard to its having, or having exercised, the power to sever in cases generally or in mixed cases.

We do not mean to suggest that the EEOC could not (or could) adopt a severance procedure in "mixed cases" where only discrimination claims are alleged. Rather, we merely find that in the absence of any prior notice or indication on the part of the EEOC that it may utilize a severance procedure, we hesitate to recognize such a power on its part. Indeed, the EEOC order itself never stated that it was severing Gomez's national origin claim, but rather merely stated that the EEOC was "referring [Gomez's] case" to the Board for supplemental evidence on the handicap issue. This language implies that the EEOC was acting pursuant to 29 C.F.R. Sec. 1613.416(c) and (d), before rendering a final decision on Gomez's original entire petition for review under section 1613.416(c). Finding severance, when there is nothing in the record to support the idea that the EEOC utilizes severance in mixed cases (or in cases generally) or that they actually purported to sever in this case, would require a level of after-the-fact judicial improvisation that we are not willing to reach. It would also result in injustice to the claimant who could have had no prior knowledge of such a practice. See, e.g., Morton v. Ruiz, 415 U.S. 199, 94 S. Ct. 1055, 39 L. Ed. 2d 270 (1974); Castillo v. Army & Air Force Exchange Service, 849 F.2d 199, 202 (5th Cir. 1988) (stating that it is arbitrary and contrary to the APA for an agency to depart from its own procedures without sufficient reason).

Conclusion

In the absence of clear direction from the EEOC, and in light of the statutory and regulatory framework suggesting a unitary approach, as well as the unitary approach taken by the courts in a partially analogous area, we find that Gomez's national origin claim was not severed from the balance of his original appeal to the Board and his petition for review to the EEOC, and that therefore the EEOC's action with respect to the national origin claim (as well as with respect to the balance of Gomez's appeal to the Board and petition to the EEOC) was not final for purposes of the thirty-day suit limitations period. Because there has been no final agency action on Gomez's case more than 180 days after he filed his petition with the EEOC, we find that his case was timely filed with the district court and accordingly we reverse and remand for proceedings consistent with this opinion.²¹ 

REVERSED AND REMANDED.