United States District Court, C.D. Illinois, Rock Island Division
DARROW UNITED STATES DISTRICT JUDGE.
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
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.
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.”
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.” 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.
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.
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. 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; 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.
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.
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.
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.
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.
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. ...