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Culpepper v. Schafer: EMPLOYMENT - error finding failure to exhaust administrative remedies; plaintiff's letters did not need to be to 'counselor'

1Ed Schafer succeeded Mike Johanns as Secretary of the United States
Department of Agriculture on January 28, 2008, and is automatically substituted as
appellee under Federal Rule of Appellate Procedure 43(c)(2).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 07-3824
________________
Devonna Culpepper,
Appellant,
v.
Ed Schafer,1 Secretary, United
States Department of Agriculture,
Appellee.
**********
Appeal from the United States
District Court for the
Eastern District of Arkansas.
________________
Submitted: September 26, 2008
Filed: December 1, 2008
________________
Before WOLLMAN, SMITH and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.1
Devonna Culpepper brought this action against the Secretary of the United
States Department of Agriculture (USDA), alleging that the USDA discriminated
against her because she is disabled and retaliated against her for engaging in protected
-2-
conduct. The district court granted the USDAs motion for summary judgment.
Culpepper appeals, and for the following reasons, we reverse.
I. BACKGROUND
Culpeppers hearing has been profoundly impaired for her entire adult life.
Culpepper is employed by the USDAs Rural Development Offices for the State of
Arkansas, where she has worked for nearly thirty years. During that time, Culpepper
has filed at least two other equal employment opportunity (EEO) complaints against
the USDA, both of which were eventually settled.
On or about January 17, 2005, Culpepper sent a letter to the Director of the
USDAs Office of Civil Rights in which she alleged that the USDA violated federal
laws against disability discrimination and retaliation. One of Culpeppers allegations
related to the USDAs treatment of her application for a merit-based promotion to the
position of Purchasing Agent. An instruction appearing at the top of the USDAs
job posting for that position stated: To file a complaint of discrimination, write
USDA, Director, Office of Civil Rights . . . or call [listed voice and
telecommunications device for the deaf (TDD) number]. In her letter to the
Director, Culpepper declared, among other things: Due to the nature of my
complaint and previous complaints, I would request that the informal phase be waived
and the formal phase begins [sic] with this complaint and supporting documentation.
If not, consider this my official contact to begin the process. Although Culpepper
produced a signed return receipt showing that the USDA received her letter on
January 21, 2005, the USDA never responded to the letter.
On February 6, 2006, Culpepper filed this suit in the United States District
Court for the Eastern District of Arkansas. The proceedings were delayed because
Culpepper failed to serve her complaint on the United States Attorney.
-3-
On June 1, 2006, Culpepper sent a second letter to the Director of the USDAs
Office of Civil Rights in which she alleged that the USDA again violated federal
disability discrimination and retaliation laws. Culpeppers principal allegation related
to the USDAs treatment of her application for a merit-based promotion to the position
of Loan Specialist. An instruction appearing at the top of the USDAs job posting
for that position stated: To file a complaint of discrimination, write to USDA,
Director, Office of Civil Rights . . . or call [listed voice and TDD numbers].
Culpeppers letter again stated: Due to the nature of my complaint and previous
complaints, I would request that the informal phase be waived and the formal phase
begins [sic] with this complaint and supporting documentation. If not, consider this
my official contact to begin the process. Culpepper produced a signed return receipt
showing that the USDA received her second letter on June 2, 2006, but the USDA
again failed to respond.
Culpepper sent two more letters to the Director of the USDAs Office of Civil
Rights. In her third letter, dated October 18, 2006, Culpepper referred to the
allegations made in her January 2005 complaint, notified the USDA that she had
filed this civil action, and requested a final agency decision. In her fourth letter,
dated November 29, 2006, Culpepper referred to the allegations made in her June
2006 complaint and again requested a final agency decision.
The Director of the USDAs Office of Civil Rights responded to Culpeppers
requests for final agency action in a letter dated December 11, 2006. While the
Director acknowledged that the Office of Civil Rights had received Culpeppers
October 18 and November 29 letters, she reported that her office had no record of
Culpeppers January 2005 and June 2006 complaints. The Director further stated that
Culpeppers filing of a lawsuit in federal court divests this office of jurisdiction over
the issues raised in the civil action. Finally, the Director advised Culpepper that if
she wished to bring an EEO complaint, she must initiate contact with an EEO
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in
-4-
the case of personnel action, within 45 days of the effective date of the action. The
USDA did not issue a final agency decision.
On March 2, 2007, Culpepper filed an amended complaint in this action. The
USDA moved to dismiss for lack of subject matter jurisdiction or, in the alternative,
for summary judgment. The USDA argued that Culpepper failed to exhaust her
administrative remedies because she did not comply with 29 C.F.R. 1614.105(a), a
regulation that establishes mandatory pre-complaint processing for federal
employees who seek to bring employment discrimination claims. The USDA asserted
that Culpepper did not initiate contact with an EEO counselor within 45 days of the
alleged acts of discrimination as 1614.105(a) requires.
The district court decided that exhaustion of administrative remedies was not
a jurisdictional requirement and that the parties had relied on matters beyond the face
of the pleadings in litigating the USDAs motion. Accordingly, the court considered
the exhaustion issue under the standard governing a motion for summary judgment.
The court found that Culpeppers previous EEO complaints, along with her written
requests to waive the informal phase, demonstrated that Culpepper was aware of the
EEO counseling process. Holding that Culpeppers administrative complaints to
the Director of the USDAs Office of Civil Rights did not satisfy the EEO counselor
contact requirement under 1614.105(a), the court granted the USDAs motion for
summary judgment. Culpepper appeals, arguing that she exhausted her administrative
remedies by contacting the Director of the USDAs Office of Civil Rights.
II. DISCUSSION
Summary judgment is appropriate where the record, viewed in the light most
favorable to the nonmoving party, shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
-5-
56(c); Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003). We review de novo
a district courts decision to grant summary judgment. Bailey v. USPS, 208 F.3d 652,
654 (8th Cir. 2000).
The district court accepted the USDAs argument that Culpepper failed to
exhaust her administrative remedies because she did not comply with 29 C.F.R.
1614.105(a). That regulation provides, in pertinent part, that [a]ggrieved persons
who believe they have been discriminated against on the basis of . . . handicap must
consult a Counselor prior to filing a complaint in order to try to informally resolve the
matter. 29 C.F.R. 1614.105(a). Moreover, [a]n aggrieved person must initiate
contact with a Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the effective date
of the action. Id. 1614.105(a)(1). Although the regulation does not define the term
initiate contact, the Equal Employment Opportunity Commission has consistently
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,
even if that official is not an EEO Counselor, and by exhibiting an intent to begin the
EEO process. E.E.O.C. Management Directive 110, at ch. 2, I.A, n.1 (Nov. 9,
1999) (citing Kinan v. Cohen, E.E.O.C. Dec. 05990249, 1999 WL 320546 (May 6,
1999); Floyd v. Temple, E.E.O.C. Dec. 05890086, 1989 WL 1006770 (June 22,
1989)); see also, e.g., Osuagwu v. Peake, E.E.O.C. Dec. 0120081307, 2008 WL
2264405 (May 20, 2008) (same); Thompson v. Chertoff, E.E.O.C. Dec. 0120080545,
2008 WL 382208 (Feb. 4, 2008) (same).
The EEOCs interpretation of 1614.105(a) is relevant because an agencys
interpretation of its own regulation is controlling unless plainly erroneous or
inconsistent with the regulation. Auer v. Robbins, 519 U.S. 452, 461 (1997) (quoting
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359 (1989)). Thus, we
held in Nygren v. Ashcroft, 109 Fed. Appx. 816 (8th Cir. 2004) (unpublished per
curiam), that the EEOCs interpretation of 1614.105(a) is entitled to deference under
-6-
Auer. Id. at 819. Other courts considering 1614.105(a) have likewise deferred to
the EEOCs interpretation. See, e.g., Johnson v. Cohen, 6 Fed. Appx. 308, 311 (6th
Cir. 2001) (unpublished per curiam) (holding that the EEOCs interpretation is not
plainly erroneous or inconsistent with the regulation); Klugel v. Small, 519 F. Supp.
2d 66, 7172 (D.D.C. 2007) (adopting the EEOCs interpretation and collecting cases
in which federal courts reached the same result). While the USDA correctly notes that
we are free to reject an agencys interpretation of its own regulation if that
interpretation is plainly erroneous or inconsistent with the regulation, it does not
affirmatively argue that we should reject the EEOCs interpretation of 1614.105(a).
Because we do not independently discern any reason to depart from our holding in
Nygren or the consensus opinion of the other courts that have considered this issue,
we conclude that the EEOCs interpretation of 1614.105(a) controls our analysis in
this case.
The district court cited our decision in Nygren for the proposition that an
employee initiates contact within the meaning of 1614.105(a) by contact[ing] an
agency official logically connected to the EEO process and exhibit[ing] an intent to
begin the EEO process. However, the court granted the USDAs motion for
summary judgment based on its determination that Culpepper did not contact an EEO
counselor. The USDA asks us to affirm the district courts grant of summary
judgment, contending that Culpepper cannot prevail because she never contacted an
EEO counselor to begin the informal [EEO] process.
Given the EEOCs interpretation of 1614.105(a), the dispositive question is
not whether Culpepper contacted an EEO counselorshe did not. Instead, the
question is whether Culpeppers letters to the Director of the USDAs Office of Civil
Rights in January 2005 and June 2006 satisfied the EEO counselor contact
requirement even though she did not contact an EEO counselor. Applying the
EEOCs interpretation of 1614.105(a) to the facts of this case, we hold that
Culpeppers letters (1) initiated contact with an agency official who is logically
2For present purposes, we assume that Culpeppers letters were actually sent to
and received by the Director. See, e.g., Gretillat v. Care Initiatives, 481 F.3d 649, 652
(8th Cir. 2007) ([W]e view the facts in the light most favorable to the . . . party
[opposing a motion for summary judgment] . . . .).
-7-
connected with the EEO process and (2) demonstrated Culpeppers intent to begin the
EEO process.2
First, as the EEOC has held, the director of an agencys office of civil rights is
logically connected with the EEO process. Duke v. Slater, E.E.O.C. Dec. 01A02129,
2000 WL 732027, at *1 (May 22, 2000) (Clearly, the Director of the agencys Office
of Civil Rights is logically connected to the EEO process.). Indeed, we cannot think
of an official in the USDAexcept for an EEO counselorwho is more closely
connected with the EEO process than the Director of the USDAs Office of Civil
Rights.
Second, Culpeppers letters announced in unequivocal terms her intent to begin
the EEO process. Both of Culpeppers letters included the statement: Due to the
nature of my complaint and previous complaints, I would request that the informal
phase be waived and the formal phase begins [sic] with this complaint and supporting
documentation. If not, consider this my official contact to begin the process.
(Emphasis added.) Culpeppers statement was sufficient to put the USDA on notice
that she intended to begin the EEO process. See Hunnicutt v. Dalton, E.E.O.C. Dec.
01966613, 1997 WL 420011, at *2 (July 23, 1997).
The USDA argues that Culpeppers previous EEO complaints and her written
requests to waive the informal phase prove that she was aware of the EEO counselor
contact requirement but chose not to comply with it. The EEOC has made it clear,
however, that an aggrieved persons contact with an agency official who [is] not an
EEO Counselor, but who [is] logically connected with the EEO process, [can be]
sufficient to constitute EEO contact, notwithstanding the fact that [the] complainant
3As a result, we need not consider whether the instructions appearing at the top
of the USDAs job postings might excuse an employees noncompliance with
1614.105(a) under the doctrines of equitable estoppel or equitable tolling.
-8-
apparently [is] aware of the EEO process. Hernandez v. Runyon, E.E.O.C. Dec.
01972231, 1998 WL 156079, at *2 (Mar. 31, 1998). Thus, under the EEOCs
interpretation of 1614.105(a), Culpeppers knowledge of the EEO process and her
misguided request to waive the informal phase are irrelevant so long as she
contacted a USDA official who is logically connected with the EEO process and
exhibited an intent to begin that process. We are convinced that Culpeppers letters
to the Director of the USDAs Office of Civil Rights satisfied that requirement.3
Our decision in Bailey v. USPS, 208 F.3d 652 (8th Cir. 2000), is not to the
contrary. In Bailey, we held that an aggrieved employee failed to exhaust her
administrative remedies even though she communicated with EEO counselors within
the 45-day limitations period. Id. at 654. Unlike Culpepper, the aggrieved employee
in Bailey waived the argument that her initial communications with . . . EEO
counselors complied with section 1614.105(a). Id. at 655 (referring to evidence in
the record that the aggrieved employee explicitly disavowed any intent to request
EEO counseling during her preliminary conversations with EEO counselors).
Culpepper has not only preserved the argument, she has supplied documentary
evidence proving that she contacted the Director of the USDAs Office of Civil Rights
and announced her intent to begin the EEO process.
In summary, we hold that Culpeppers letters to the Director of the USDAs
Office of Civil Rights satisfied the EEO counselor contact requirement under
1614.105(a) because they initiated contact with a USDA official who is logically
4The parties have not meaningfully addressed the question whether Culpeppers
letters were submitted within the 45-day limitations period, and we do not decide that
issue.
-9-
connected with the EEO process and exhibited the requisite intent to begin the
process.4
III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the district court and
remand the case for further proceedings consistent with this opinion.
______________________________
 

 
 
 

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