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Sweetland v. McHugh

United States District Court, C.D. Illinois, Rock Island Division

February 27, 2017

SANDI SWEETLAND, Plaintiff,
v.
JOHN MCHUGH, ERIC FANNING, Acting Secretary, SECRETARY OF THE ARMY, PATRICK MURPHY, Undersecretary, Defendant.

          ORDER

          SARA DARROW UNITED STATES DISTRICT JUDGE.

         Now before the Court is Defendants' motion to dismiss, or, in the alternative, motion for summary judgment ECF No. 21. For the following reasons, the motion is GRANTED, as a motion for summary judgment.

         BACKGROUND[1]

         Sweetland worked as an administrative assistant in the Engineering and Construction Division of the United States Army Corps of Engineers in Rock Island, Illinois. Final Agency Decision 1-2 (hereinafter “FAD”), Mem. Supp. Mot. Ex. 3, ECF No. 22-5. She was supervised by Branch Chief Tom Mack, and by a “second-level” supervisor, Denny Lundberg. Id. at 2.

         In June and July of 2011, Sweetland was repeatedly absent from work without permission (in the Army's jargon, away without official leave or “AWOL”), and misreported her absences on her time sheets, as well as requesting sick leave when she was not actually sick. Id. Mack, along with representatives from human resources and a union representative, later met with Sweetland to talk about “her attendance history, her inconsistent stories regarding her absences, and her declining performance.” Id.

         On March 1, 2012, Sweetland sent Mack an email describing her dismay at unspecified comments made to her that were “workplace inappropriate, ” and telling Mack that she had left an envelope on his desk containing something “that I want you to see . . . [a]nd then rip it up.” Id. at 3. The envelope contained a copy of an email from Geologist Thomas Dumolin, stating “You will have to help me with sections 3 through 13, I can't understand the directions.” Id. Sweetland claims that this was a reference to a “sex DVD manual, ” and that it “was openly played continuously all morning long in the office.”[2] Compl. 3, ECF No. 1. Sweetland also gave Mack a copy of an email she had sent to a coworker, in which she wrote, among other things:

How can the guy ask me for help on the subject? What scares me is I know he would try to get close to me because he already tried it at Julie's when he gave me rides. Then we stopped talking for awhile. Yesterday he told me my butt has gotten smaller. If they have those workplace rules why don't people get it? Feel like I'm in the dark ages again. I don't enjoy hearing those comments but with this office I would be up there all the time if I took that hardcore attitude. It's one thing to listen to things privately but to mention it to a female coworker is not fun.

FAD 3. Mack, unsure of what to do, consulted with a “Management and Employee Relations Specialist, ” id. at 4, and, apparently in consequence, asked Sweetland for clarification. Id. She said that she did not want to discuss it and there was nothing to pursue. Id.

         Sweetland characterizes what followed as “experiencing problems which resulted in a series of adverse actions including AWOL and Suspension and made conditions completely uncomfortable to my ever feeling ‘normal' or functional in the office, ” including her boss, presumably Mack, making “a lot of puns which were repeated by others during the workday/workweek.” Compl. 3.

         According to Defendants, this period included an incident on June 19, 2012 wherein Sweetland took some hours' leave without appropriately requesting it, id. at 4; submitted “leave slips” that in Mack's view were “not in the proper form, ” id.; and had some kind of argument with him about these events, id. at 5. On September 5, 2012, Mack proposed to suspend Sweetland for 10 days for having been AWOL.[3] Id. In support, he cited his having had “constantly” in the preceding months to remind Sweetland of the right procedures for requesting leave; her multiple late arrivals to work during the week of August 13, 2013[4]; and her not having appeared at work at all on August 16. Id. Lundberg found these charges supported by substantial evidence, and, evidently in consequence, suspended Sweetland for 10 days without pay, starting on October 15, 2012. Id. Sweetland never returned to work after this suspension ran, and on December 6, 2012, Mack proposed that Sweetland be fired (“removed”), which, on January 18, 2013, again with the ratification of Lundberg, she was. Id. 5-6.

         Sweetland was mailed a notice of the firing on this date, which explained that she had two options for appeal: direct appeal to the United State Merit Systems Protection Board (“MSPB”), or an Equal Employment Opportunity (“EEO”) complaint made to the Army's EEO office in Rock Island. Jan. 18, 2013 Letter 1-3, Mem. Supp. Mot. Ex. 1, ECF No. 22-3. On April 29, 2013, Sweetland elected the latter path, by submitting a complaint to the EEO office. Formal Compl. of Discrimination, Mem. Supp. Mot. Ex. 2, ECF No. 22-4. This document listed Sweetland's current address as being a P.O. Box in Davenport, Iowa, care of one Celia Rangel. Id. at 1, 4.

         The Army investigated Sweetland's complaint and issued a FAD. The FAD exhaustively reviewed Sweetland's clams, as well as testimony from various other parties involved, and determined on this basis that Sweetland had not been the victim of discrimination. FAD 22. The Army's Employment Opportunity Compliance and Complaints Review department (“the EEOCCR department”) sent a copy of this decision to the address Sweetland had listed, postmarked February 10, notifying Sweetland that she had the right either to file an appeal with the MSPB within thirty days, or to file a civil action within the same period of time. Id. at 22- 23. The envelope containing the decision was returned unopened by the Postal Service to the EEOCCR on April 8, 2015. Feb. 10 Mailing Envelope, Mem. Supp. Mot. Ex. 4, ECF No. 22-6. The envelope had two stamps on it next to the mailing address-Sweetland's P.O. Box-with three blank lines in each stamp. Id. The lines are labeled “1st notice, ” “2nd notice, ” and “returned.” Id. The first stamp has been filled out only in the “first notice” field, with the date “2/17/13.” Id. “3-6, ” 3-18, ” and “3-25” have been written in the three spaces on the other stamp. On the mailing address itself, someone has crossed out the original box number for Sweetland, which was the one she had given as her official address, and written in a different one. Underneath the first address, which has been crossed out in its entirety, a Davenport, Iowa street address is printed, along with Sweetland's name and the words “notify sender of new address.” Multiple stamps with the words “unclaimed - returned to sender” are printed across the face of the envelope. Id. When it received this envelope, the EEOCCR department forwarded it to the Rock Island EEO office, which mailed a duplicate copy to the P.O. Box address. Mem. Supp. Mot. Ex. 5, ECF No. 22-7.

         On May 20, 2015, the MSPB received Sweetland's appeal of the FAD. Mem. Supp. Mot. Ex. 7, ECF No. 22-9. The appeal listed Sweetland's address as a street address in Davenport, Iowa-the same one that had been printed on the lower portion of the returned mailing envelope. Id. at 1. On June 2, 2015, Sweetland emailed individuals at the Rock Island EEO office indicating, among other things, that this was indeed her address. Mem. Supp. Mot. Ex. 8, ECF No. 22-10.

         On June 3, 2015, an Administrative Law Judge (“ALJ”) at the MSPB issued an “Order on Timeliness.” Mem. Supp. Mot. Ex. 9, ECF No. 22-11. This order indicated that Sweetland's appeal appeared to have been untimely filed, and that the MSPB was considering dismissal of the appeal on that basis. Id. at 1. The order noted that Sweetland's appeal appeared to have been filed on May 20, 2015, 73 days late, id. at 2, and ordered Sweetland either to submit evidence showing why the appeal was not late, or to explain why good cause existed for the lateness, id. at 3. The Army responded, arguing that Sweetland's appeal should indeed be dismissed as untimely filed, Mem. Supp. Mot. Ex. 10, ECF No. 22-12. Sweetland did not respond, and on July 28, 2015, the ALJ issued an Opinion dismissing the appeal as untimely filed. ALJ Opinion, Mem. Supp. Mot. Ex. 11, ECF No. 22-13. The Opinion noted that Sweetland could once again contest the ALJ's opinion, this time by filing a petition for review by September 1, 2015. Id. at 6. Sweetland filed such a petition on September 1, 2015, seeking review of the ALJ's Opinion. Petition, Mem. Supp. Mot. Ex. 12, ECF No. 22-14.

         Sweetland's petition affirms that the P.O. Box to which the Army mailed the initial copy of the FAD was “the address [she] intentionally indicated for use on all correspondence related to the purposes of this complaint, ” id. at 1, and that the Army's mailing was properly addressed, id. She claims that the Post Office “redirected/rerouted delivery copy dated February 6, 2015, ” id. and that this “postal misdirect . . . was the cause of delay, ” id. On November 6, 2015, the MSPB issued its own Final Decision, affirming the ALJ's Opinion that Sweetland's appeal should be dismissed as untimely filed. MSPB Final Dec., Mem. Supp. Mot. Ex. 14, ECF No. 22-17. Sweetland then petitioned the Equal Opportunity Employment Commission (“EEOC”), which decided that the MSPB's dismissal was not reviewable by the EEOC because it was a purely procedural dismissal, and the EEOC therefore lacked jurisdiction over it. Mem. Supp. Mot. Ex. 17, ECF No. ...


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