Johnson v. Cohen
Opinion of the Court
Norman R. Johnson, a pro se plaintiff, appeals a district court order and judgment granting summary judgment for the defendant in his employment discrimination action filed under Title VII, 42 U.S.C. § 2000e — 5(f)(1). This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Johnson, an African-American, is a civilian employee of the Department of Defense in the Defense Finance and Accounting Service (DFAS), at Wright-Patterson
On November 3, 1995, after receiving the additional information, Johnson contacted a different EEO counselor in Denver to express his desire to file an employment discrimination complaint. He filed an informal complaint on November 18, 1995, and, on January 16, 1996, filed a formal complaint alleging that he was not selected for the position because of his race (African-American) and his gender.. The DFAS issued a final agency decision on May 6, 1996, dismissing his complaint pursuant to 29 C.F.R. § 1614.107(b) as untimely in that he initiated contact with an EEO counselor outside of the 45-day time limit. Johnson appealed to the Equal Employment Opportunity Commission (EEOC), which affirmed the agency’s decision and notified him of his right to sue.
In his Title VII complaint, Johnson claimed that he was illegally denied promotion because of his race and gender. He asked the court to overturn the 45-day time constraint, award him $375,000 in damages, and reinstate him to the appropriate grade level. Both parties expressly consented to have this matter decided by a magistrate judge.
The magistrate judge granted the defendant’s motion for summary judgment and dismissed the complaint in a decision and order entered on June 13, 2000. A separate judgment was entered the same day. The magistrate judge found that Johnson knew or should have known of the possible discrimination at least by May 9, 1994, and that the EEOC had reasonably interpreted its own regulations to determine that Johnson had failed to initiate contact with an EEO counselor within 45 days as required. The magistrate judge, therefore, found that Johnson had failed to timely exhaust his administrative remedies and was not entitled to a trial on the merits of his claim.
On appeal, Johnson argues that the district court erred by: (1) deferring to the agency’s interpretation of the 45-day limitations period for initial contact; and (2) finding the defendant entitled to summary judgment, in part through alleged factual misrepresentations.
This court reviews a grant of summary judgment de novo, using the same test as that used by the district court. Gaines v. Runyon, 107 F.3d 1171, 1174 (6th Cir. 1997). Thus, summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c).
shall extend the 45-day time limit ... when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been [sic] known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
29 C.F.R. § 1614.105(a)(2).
Upon review, we conclude that no genuine issue of material fact exists as to whether Johnson initiated contact within the meaning of the regulation within 45 days of the adverse personnel action, but that one does exist as to whether he was notified of the 45-day limitations period for “initiating contact.” The EEOC has set out what it requires to “initiate contact” with an EEO counselor:
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.
Pauling v. Secretary of the Dep’t of Interior, 960 F.Supp. 793, 803 (S.D.N.Y. 1997) (citations omitted).
The EEOC found that Johnson initiated contact in November 1995, far beyond the 45-day period following Johnson’s May 9, 1994, official notification of the personnel decision, and the district court accepted the agency’s interpretation and application of its regulation as reasonable. In order to be timely, Johnson would have had to initiate contact with the EEO counselor by late June 1994. The only contact that could arguably be timely under the regulation is the telephone conversation with EEO counselor Steve Amelia, which Johnson alleges took place in May 1994 following a letter written to Amelia. The defendant does not dispute that such contact occurred, but contends, as do the EEOC and the district court, that this contact — at which time Johnson expressly declined to file a charge — was not the contact contemplated by the regulation. Under the EEOC interpretation cited above, this contention appears to be correct. Johnson’s conversation with Amelia meets only the first of the three criteria listed. “An agency’s interpretation of its own regulations is ‘of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Id. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). The EEOC’s interpretation of this regulation is not plainly erroneous or inconsistent with the regulation.
The district court did not address the question of whether Johnson had notice of either the 45-day limitations period or that his conversation with EEO counselor Amelia would not adequately preserve his rights. Johnson clearly indicated an intent to pursue the matter during that conversation in that he informed the counselor that he was gathering information for a possible discrimination action. We therefore find that a genuine issue of material fact exists relevant to whether the 45-day period for initial contact should be tolled in Johnson’s case.
Accordingly, the district court’s judgment is vacated and the case is remanded for further proceedings consistent with this order. Rule 34(j)(2)(C), Rules of the Sixth Circuit.
Reference
- Full Case Name
- Norman R. JOHNSON v. William S. COHEN, Secretary of Defense
- Cited By
- 10 cases
- Status
- Published