Federal Legal Corner

On December 1, 2008, a U.S. Court of Appeals held that a federal employee's letters to the director of her agency's civil rights office complaining of discrimination satisfied the rule requiring federal workers to contact an internal EEO counselor within 45 days of alleged discrimination. Culpepper v. Schafer, 8th Cir., No., 07-3824. The appellant had worked for almost 30 years at the Department of Agriculture's (USDA) rural development offices for the state of Arkansas. Significantly impaired in hearing for her entire adult life, she filed at least two prior EEO complaints against the agency that resulted in settlements.  

In January 2005, the appellant notified the director of the USDA's civil rights office, via correspondence, that she was alleging further discrimination and retaliation, concerning her application for a merit-based promotion. An instruction at the top of the posting for the job the appellant was not selected for stated, "To file a complaint of discrimination, write USDA, Director, Office of Civil Rights...or call [listed voice and telecommunications device for the deaf number]." In appellant's correspondence, she stated that due to her past EEO activity, she wanted to bypass the "informal phase" and proceed directly to the "formal phase," with her letter serving as a complaint. Additionally, the appellant stated if that was not possible, then she considers the correspondence her official contact to begin the EEO process. 

In June 2006, the appellant sent a second letter to the USDA's civil rights director. Again, she reported that she was alleging further discrimination and retaliation, but this time concerning her application for a promotion to a different position. Likewise, the job posting stated at the top of the page: "To file a complaint of discrimination, write USDA, Director, Office of Civil Rights" or report by phone. Again, the appellant's letter requested to skip directly to the "formal phase" of the EEO process, with her correspondence serving as her complaint, if possible, or as her official contact to begin the EEO process.  

The appellant sued in U.S. District Court after sending the first letter to the USDA director of civil rights and amended her complaint after submitting the second letter to the agency. The appellant supplied signed return receipts evidencing the USDA's receipt of both letters, yet the agency never responded to either letter. The agency filed a motion to dismiss the complaint on jurisdictional grounds, asserting that the appellant never exhausted her administrative remedies because she failed to comply with EEOC regulations that require her to "initiate contact" with an EEO counselor within 45 days of the alleged discrimination. See 29 CFR 1614.105(a). The district court granted the dismissal, finding that the appellant's "administrative complaints" to the USDA's civil rights director did not fulfill her obligations under the §1614.105(a) reporting mandate.  

The court of appeals reversed the district court's dismissal, holding that the appellant's letter to the director of her agency's civil rights office satisfied the EEO counselor contact rule. Although §1614.105(a) does not define "initiate contact," the EEOC consistently has held that "a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process . . . by exhibiting an intent to begin the EEO process." See EEOC Management Directive (MD) 110, Ch. 2, § I.A. Thus, since there is no other individual at an agency other than the EEO director who is more closely connected to the EEO process, and the letters unequivocally expressed the appellant's intent to begin the EEO process, the court found that the appellant fulfilled the reporting requirement. Finally, the court held that whether the appellant was aware of the EEO counselor contact rule and chose to ignore it was "irrelevant" given the plain language of MD 110. 

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/

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