Pueschel v. Veneman

185 F.Supp.2d 566

Deborah Katz PUESCHEL, Successor Personal Representative of the Estate of Doris Katz, Plaintiff, v. Ann VENEMAN, Secretary, Department of Agriculture, Defendant.

No. CIV.AMD 01-2080.

United States District Court, D. Maryland.

February 11, 2002.

George Michael Chuzi, Kalijawi Chuzi and Newman, Washington, DC, for plaintiff.

Larry D. Adams, U.S. Attorneys Office, Baltimore, MD, Mark E. Nagle, Wilma Antoiinette Lewis, Office of the U.S. Attorney, Lisa Barsoomian, U.S. Attorney's Office, Washington, DC, Thomas M. DiBiagio, Office of the U.S. Attorney, Baltimore, MD, for defendant.

MEMORANDUM

DAVIS, District Judge.

Plaintiff, Deborah Katz Pueschel, is the successor personal representative of the estate of her mother, Doris Katz. Doris Katz was an employee of the United States Department of Agriculture for the 16 years immediately preceding her death in March 1996. Asserting that her mother was a victim of unlawful discrimination, plaintiff instituted this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(c) ("Title VII"), in the United States District Court for the District of Columbia. The case was transferred to this district on the motion of the defendant.

Now pending is the defendant's motion to dismiss. The motion is based on defendant's contentions that: (1) plaintiff lacks standing to seek redress for discrimination suffered by her mother, and (2) Doris Katz's failure to make timely informal contact with an EEO counselor as required of federal employees under Title VII deprives this court of the power to adjudicate her claim. I have held a hearing at which counsel were heard and I have carefully considered the parties' pre-hearing and post-hearing submissions; no further hearing is necessary. For the reasons stated below, I shall deny defendant's motion to dismiss without prejudice and I shall order that discovery go forward on the limited issue of whether equitable tolling applies in this case.

(In considering the motion to dismiss under Fed.R.Civ.P. 12(b)(6), I have converted the motion into one for summary judgment as to the issue of exhaustion. See Rohan v. Networks Presentation, LLC., 175 F.Supp.2d 806, 809 & n. 3 (D.Md.2001). As discussed more fully infra, plaintiff has plainly received notice that the motion would be converted, and she has submitted many documents in response to the motion filed by the government.)

I.

A brief recapitulation of the statutory and regulatory framework for federal employment discrimination claims will help place the present dispute in focus.

Prior to seeking relief for Title VII claims in court, a federal employee must timely exhaust all available administrative remedies. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.408. Among other things, a federal employee is required to contact informally an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory ...." 29 C.F.R. § 1614.105(a)(1). "In Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir.1985), the Fourth Circuit `held that a federal employee's failure to consult with an EEO counselor within the required time after an alleged act of discrimination, i.e., within 45 days, is grounds for dismissing the employee's Title VII claim in federal court.'" Dachman v. Shalala, 46 F.Supp.2d 419, 434 (D.Md.1999)(quoting Blount v. Shalala, 32 F.Supp.2d 339, 341 (D.Md.), aff'd, 199 F.3d 1326 (4th Cir.1999)(table)), aff'd, 2001 WL 533760 (4th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 551, 151 L.Ed.2d 427(2001).

The purpose of the informal contact requirement is to encourage early resolution of discrimination claims on a less contentious and less adversarial basis. Judge Korman recently provided a helpful summary of the background and intended operation of the "informal contact" requirement:

[W]hen Congress extended the coverage of Title VII to federal employees in 1972, it conferred on the Civil Service Commission the power to enforce the mandate that all personnel actions affecting federal employees, including those of the Postal Service, should "be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). The administrative enforcement powers included the issuance of "such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section." 42 U.S.C. § 2000e-16(b). The administrative regulations set out a carefully considered scheme to encourage employees to file discrimination complaints before positions on both sides have hardened. They provide that a person who believes that he or she has been discriminated against for impermissible reasons, including sex, must first seek counseling from the alleged discriminating agency before even filing a formal complaint with the agency, 29 C.F.R. § 1614.105(a). This informal counseling must be sought with an EEO 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." 29 C.F.R. § 1614.105(a)(1). The failure to comply with this rule precludes the filing of a formal complaint with the agency, 29 C.F.R. § 1614.107(a)(2), and precludes a discrimination claim in federal court ....

When it was originally promulgated by the Civil Service Commission, the period within which EEO counseling had to be sought was 30 days. In 1992, the EEOC, to which the rule-making power was later delegated, explained why it had rejected suggestions that it adopt the 180-day period applicable to private sector administrative complaints:

We do not believe that the analogy between the private sector filing period and the federal sector counseling time limit is apt. Private employees must actually file a complaint within 180 days, not just contact an EEOC office about doing so. Private employees may have to travel many miles or use the mail to file a charge with EEOC while federal employees only have to contact a counselor by telephone or often merely visit a counselor who is located in the same work place in order to comply with the time limit. Moreover, a comparison of private sector charge filings and federal sector complaint filings indicates that federal employees file complaints at a rate three time greater than private sector employees file charges. Further, the earliest possible contact with a counselor aids resolution of disputes because positions on both sides have not yet hardened. Therefore, we believe a significant lengthening of the pre-complaint period is not justified. 57 Fed.Reg. 12634, 12634-35 (April 10, 1992) (hereinafter "EEOC Explanation of Final Rule").

Nevertheless, the EEOC expanded the time limits for seeking counseling from 30 to 45 days. In so doing, it observed that "Part 1614 ... also requires an agency to extend the time limit for contacting a counselor where warranted by the circumstances." Id. at 12635. The circumstances are extremely generous and are "uncommon to statutes of limitations." .... They expressly provide for extending the 45 day period (1) if the aggrieved employee was not notified of the time limits and was not otherwise aware of them, (2) if the aggrieved employee did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, (3) if the aggrieved employee was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or (4) "for other reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a)(2).

Fitzgerald v. Henderson, 251 F.3d 345, 368-69 (2d Cir.2001)(Korman, D.J., dissenting) (citations omitted).

The principal issue in the case at bar is whether the federal employee on behalf of whom the case has been brought initiated contact as required by the EEOC regulations. The relevant test is appropriately that which the EEOC has seen fit to prescribe, which has been set forth as follows:

The EEOC has held that in order to "initiate contact" an employee must (1) contact an agency official logically connected with the EEO process, even if that official is not an EEO counselor; (2) exhibit an intent to begin the EEO process; and (3) allege that an incident in question is based on discrimination .... [Plaintiff] argues that the EEOC's reading of "initiate contact" requires too much of employees insofar as it mandates that the employee communicate an affirmative decision to pursue the EEO counseling process. The agency's reading, however, is reasonable, not plainly erroneous, and entitled to deference.

Pauling v. Secretary of Dept. of Interior, 960 F.Supp. 793, 803 (S.D.N.Y.1997) (citations omitted), rev'd in part on other grounds, 160 F.3d 133 (2nd Cir.1998).

As mentioned supra in Fitzgerald v. Henderson, and as discussed infra, equitable considerations may, under appropriate circumstances, relieve a party of the requirement of timely exhaustion under Title VII, including the requirement of informal contact imposed by law on federal employees.

II.

Doris Katz worked at the Department of Agriculture, Animal and Plant Health Inspection Service from 1980 until her death on March 29, 1996. According to the complaint in this case, she began employment as a GS-4 clerk stenographer; was promoted two years later to a GS-5 travel clerk; and was later reclassified to a GS-5, and then a GS-7, travel assistant. In 1990, she was promoted to a GS-9 travel specialist. Evidently, her duties involved responsibility for the travel documents of more than 1200 employees.

Apparently, over the years, Mrs. Katz had felt that she was not treated fairly by her employer. That is, she apparently believed she was performing duties that justified a higher pay level and/or ranking within the civil service. In the complaint filed in this case, however, plaintiff (the successor personal representative of Doris Katz's estate)...