Kraus v. Presidio Trust

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICKEY KRAUS, 
Plaintiff-Appellant,
No. 07-17177
v.
PRESIDIO TRUST FACILITIES  D.C. No.
CV-06-04667-CRB
DIVISION/RESIDENTIAL MANAGEMENT
OPINION
BRANCH,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Submitted July 16, 2009
San Francisco, California*

Filed July 23, 2009

Before: Dorothy W. Nelson, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.

Opinion by Judge Berzon

*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

9485
9488 KRAUS v. PRESIDIO TRUST FACILITIES

COUNSEL

John L. Taylor, Law Offices of John L. Taylor, San Fran-
cisco, California, for the plaintiff-appellant.

Katherine Burke Dowling, Joseph Russoniello, and Joann M.
Swanson, Office of the U.S. Attorney, San Francisco, Califor-
nia, for the defendant-appellee.

OPINION

BERZON, Circuit Judge:

Vickey Kraus, a federal employee, brought suit against her
employer, the Presidio Trust Facilities Division (“Presidio
Trust”), under Title VII of the Civil Rights Act of 1964 and
the Rehabilitation Act of 1973, accusing the Presidio Trust of
various acts of employment discrimination and retaliation.
The district court granted summary judgment for the Presidio
Trust, and Kraus appealed.

In this opinion, we review the district court’s holding that
Kraus failed to satisfy the administrative exhaustion require-
ment as to several of her claims, rendering those claims sub-
ject to dismissal. For the reasons explained below, we
 KRAUS v. PRESIDIO TRUST FACILITIES 9489
conclude that the district court failed to apply the correct legal
standard in its exhaustion analysis and so reverse and remand.1

I. Background

According to her complaint, Kraus is African American,
female, a lesbian, and an individual disabled due to dyslexia,
emotional distress, anxiety, depression, a back injury with sci-
atica, and brain damage caused by lead poisoning. Kraus was
employed by the Presidio Trust as a maintenance inspector
from 1998 until at least October 2007. She alleges that she
was discriminated against on various occasions because of her
race, gender, sexual orientation, and disabilities,2 and was
retaliated against on the basis of her participation in the dis-
crimination complaint process.

On May 19, 2003, Kraus filed her first equal employment
opportunity (EEO) complaint with the Presidio Trust, alleging
three distinct instances of employment discrimination and
retaliation in connection with her attempts to gain access to an
employee vanpool program, all the members of which were
male.3 An administrative judge heard Kraus’s case and
granted the Presidio Trust’s motion for summary judgment as
to all three claims. The Presidio Trust later adopted the
administrative judge’s decision as its own.

Kraus appealed the Presidio Trust’s final decision to the
Office of Federal Operations (OFO) of the Equal Employment
Opportunity Commission (EEOC) pursuant to 29 C.F.R.
1
In a separate memorandum disposition filed concurrently with this
opinion, we affirm the district court’s holdings as to Kraus’s other claims.
2
The district court did not consider any of Kraus’s sexual orientation
discrimination claims, focusing instead on race and gender. Kraus does not
raise sexual orientation discrimination on appeal.
3
This complaint was combined and treated as one with a previous com-
plaint Kraus had filed on March 21, 2003. Following the district court, we
refer to this consolidated complaint as Kraus’s “first EEO complaint.”
9490 KRAUS v. PRESIDIO TRUST FACILITIES
§ 1614.108(g). On May 31, 2005, while that appeal was still
pending, Kraus filed a second EEO complaint with the Presi-
dio Trust. This second complaint contained the following alle-
gations, some of which overlapped with those in her first
complaint:

(1) that the Presidio Trust’s EEO Officer, Deborah
Zipp, mishandled Kraus’s vanpool-related com-
plaints in April 2001;

(2) that Kraus was discriminatorily denied access to
the vanpool from December 2001 to December
2002;

(3) that in December 2002, supervisor Mark Feickert
made racist remarks about Mexicans being “better
laborers” than African Americans to James Beeson,
an African American friend of Kraus’s whom Kraus
had referred to Feickert for a job interview;

(4) that on Kraus’s performance evaluation for the
year 2002, supervisor Stephen Potts unfairly rated
her “communication and teamwork” skills as a “3”
(“fully successful”) instead of a “4” (between “fully
successful” and “outstanding”);

(5) that Zipp falsely accused Kraus of sexually
harassing a female co-employee in February 2003;

(6) that in March 2003, Zipp assigned Kraus’s case
to a contract EEO counselor rather than to the Presi-
dio Trust’s permanent counselor Carolyn Provost;

(7) that in April 2003, Rosa Medina, Kraus’s co-
worker, made unspecified “rude, misleading, and
insensitive comments” to her;

(8) that in February 2004, maintenance supervisor
Tom Blean relocated Kraus’s male coworkers to a
 KRAUS v. PRESIDIO TRUST FACILITIES 9491
new workspace in a different building, but left Kraus
behind;

(9) that in February 2004, Blean refused to allow
Kraus to act as maintenance supervisor in his
absence, even though he had previously promised
that she and her two co-employees would take turns
filling his position;

(10) that in June 2004, Blean criticized Kraus for
submitting too many work orders;

(11) that in August 2004, during a mid-year review,
Blean criticized Kraus for bringing down the depart-
ment’s morale;

(12) that in August 2004 and January 2005, Blean
and manager Steve Bueno failed to appraise Kraus’s
performance as required by the department’s policy;

(13) that Blean rated Kraus’s quality of work as a
“2” on her 2004 yearly performance appraisal, which
she was later told would prevent her from receiving
a cost of living allowance pay increase; and

(14) that in September 2004, Feickert falsely accused
Kraus of sexual harassment.

On November 30, 2005, the Presidio Trust accepted for
investigation four of the claims in Kraus’s second EEO com-
plaint, requested additional information regarding one claim
before deciding whether to investigate, and dismissed the rest
of the claims. Then, on May 2, 2006, Kraus received notice
of the OFO’s final decision as to her first EEO complaint,
affirming the Presidio Trust in full.

Kraus next filed a timely civil action in federal court, pur-
suant to 42 U.S.C. § 2000e-16(c). Her complaint made all the
9492 KRAUS v. PRESIDIO TRUST FACILITIES
same allegations that appeared in her first and second EEO
complaints, as well as several new allegations. On the Presi-
dio Trust’s motion, the district court entered summary judg-
ment for the Presidio Trust.

In the memorandum disposition filed simultaneously with
this opinion, we affirm the district court’s grant of summary
judgment as to several of Kraus’s claims, holding that Kraus
failed to make a prima facie showing of discrimination or
retaliation as to some claims, that she failed to show the exis-
tence of any issue of material fact regarding the Presidio
Trust’s proffered non-discriminatory reasons for Kraus’s poor
ratings in her 2004 performance appraisal, and that she
waived other claims before the agency or impermissibly
raised them for the first time in her federal complaint. In this
opinion, we consider the district court’s holding as to the
remainder of Kraus’s claims: claims (3), (5), (7), (8), (9), (10),
(11), (12), and (14).4

With respect to these claims, the district court held that
Kraus had failed to contact an EEO counselor within 45 days
of the alleged discrimination as required by 29 C.F.R.
§ 1614.105(a)(1), and so the claims were unexhausted and
had to be dismissed. The district court’s exhaustion holding
turns on a question of law previously undecided in this circuit,
namely, whether a federal employee seeking to proceed under
Title VII must contact a person with the job title “Counselor”
to exhaust her claims of employment discrimination, or
whether contacting certain other government employees can
suffice.
4
In other words, the district court’s exhaustion ruling — which is the
subject of this opinion — applies to the claims raised in Kraus’s second
EEO complaint except for claims (1), (4), and (6) (which were redundant
with the claims from the first EEO complaint), claim (2) (the vanpool
claim), and claim (13) (the 2004 performance appraisal claim). Those
claims are covered in the separate memorandum disposition.
 KRAUS v. PRESIDIO TRUST FACILITIES 9493
We have jurisdiction over Kraus’s appeal under 28 U.S.C.
§ 1291. We review the district court’s grant of summary judg-
ment de novo, determining “whether, viewing all evidence in
the light most favorable to the nonmoving party, there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Whitman v.
Mineta, 541 F.3d 929, 931 (9th Cir. 2008). The question
whether a claim was properly exhausted is also reviewed de
novo. Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir.
2006).

II. Discussion

[1] In 1972, Congress amended Title VII of the Civil
Rights Act of 1964 to extend its coverage to federal employ-
ees. As amended, § 717 of the Civil Rights Act, codified at 42
U.S.C. § 2000e-16, “provides that all personnel actions affect-
ing federal employees and applicants for federal employment
shall be made free from any discrimination based on race,
color, religion, sex, or national origin,” and “establishes an
administrative and judicial enforcement system.” Brown v.
Gen. Servs. Admin., 425 U.S. 820, 829-30 (1976) (internal
quotation marks omitted). As Brown explained, Title VII
“permits an aggrieved [federal] employee to file a civil action
in a federal district court,” but first, as a “precondition[ ]” to
filing, “the complainant must seek relief in the agency that
has allegedly discriminated against him.” Id. at 832; see also
42 U.S.C. § 2000e-16(c).

Kraus did seek administrative relief as to the claims rele-
vant here, by filing a formal EEO complaint with the Presidio
Trust. The question before us is whether, before filing her
EEO complaint, she contacted an EEO counselor within 45
days of each alleged discriminatory event.

[2] This pre-filing exhaustion requirement does not appear
in the statute. Rather the statute authorizes the EEOC to
“issue such rules, regulations, orders and instructions as it
9494 KRAUS v. PRESIDIO TRUST FACILITIES
deems necessary and appropriate to carry out its responsibili-
ties under this section.” 42 U.S.C. § 2000e-16(b). Pursuant to
this authority, the EEOC issued a regulation providing that
“[a]ggrieved persons . . . must consult a Counselor prior to fil-
ing a complaint in order to try to informally resolve the mat-
ter[,]” 29 C.F.R. § 1614.105(a), and that “[a]n aggrieved
person must initiate contact with a Counselor within 45 days
of the date of the matter alleged to be discriminatory . . . .”
Id. § 1614.105(a)(1).

[3] The regulations further provide that an employee’s fail-
ure to initiate contact with an EEO Counselor within 45 days
is grounds for the dismissal of her EEO complaint, see id.
§ 1614.107(a)(2), although “[t]he time limits in this part are
subject to waiver, estoppel and equitable tolling.” Id.
§ 1614.604(c). Similarly, although the regulatory pre-filing
exhaustion requirement at § 1614.105 “does not carry the full
weight of statutory authority” and is not a jurisdictional pre-
requisite for suit in federal court, we have consistently held
that, absent waiver, estoppel, or equitable tolling, “failure to
comply with this regulation [is] . . . fatal to a federal employ-
ee’s discrimination claim” in federal court. Lyons v. England,
307 F.3d 1092, 1105 (9th Cir. 2002); see also Johnson v. U.S.
Treasury Dep’t, 27 F.3d 415, 416 (9th Cir. 1994) (per
curiam); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th
Cir. 1985).5

Kraus has not argued that waiver, estoppel, or equitable
tolling applies to excuse her from compliance with
§ 1614.105. The question whether claims (3), (5), (7), (8), (9),
(10), (11), (12), and (14) are exhausted therefore depends
solely upon whether she “initiate[d] contact with a Counselor
5
At the time Johnson and Boyd were decided, the regulation required an
employee to seek EEO counseling within 30 days of the discriminatory
event. See former 29 C.F.R. § 1613.214 (1991); 52 Fed. Reg. 41920-01,
41922 (1987). The limitations period was extended to 45 days in 1992. See
57 Fed. Reg. 12634-01, 12648 (1992).
 KRAUS v. PRESIDIO TRUST FACILITIES 9495
within 45 days of the date of [each] matter alleged to be dis-
criminatory.” 29 C.F.R. § 1614.105(a)(1).

Kraus maintains that she satisfied the regulation because,
“[f]or each claim identified by Defendants regarding failure of
me to exhaust my administrative remedies, I complained the
same day or the following day . . . to the EEO officer.” The
“EEO officer” to whom Kraus refers is Deborah Zipp, the
Presidio Trust’s designated EEO Officer. The district court
found that Zipp is not a “Counselor,” and the record supports
that characterization. According to Kraus’s declaration, “the
only [permanent] EEO counselor at the [Presidio Trust]” is
Carolyn Provost; additionally, Linda Semi, to whom Kraus
was assigned for the preparation of her second EEO com-
plaint, is a contract counselor.

The district court concluded that Kraus’s contacts with
Zipp were not sufficient to exhaust her administrative reme-
dies. The court explained that Kraus had cited no case law
supporting her claim that contacting an “officer” is equivalent
to contacting a “counselor” for purposes of 29 C.F.R.
§ 1614.105. Because Kraus did not contact Semi or Provost,
the EEO counselors, regarding the incidents included in her
second EEO complaint until February 24, 2005, which was
more than 45 days after the incidents had occurred, the district
court held those claims were unexhausted and granted sum-
mary judgment for the Presidio Trust. In so ruling, the district
court overlooked — albeit understandably, as the parties were
not helpful in this regard — a considerable body of relevant
agency interpretation.

[4] The EEOC has long and consistently adhered to an
interpretation of 29 C.F.R. § 1614.105 that “a complainant
may satisfy the criterion of EEO Counselor contact by initiat-
ing contact with any agency official logically connected with
the EEO process, even if that official is not an EEO Coun-
selor, and by exhibiting an intent to begin the EEO process.”
EEOC Management Directive 110, at ch. 2, § I.A n.1, 1999
9496 KRAUS v. PRESIDIO TRUST FACILITIES
WL 33318588 (Nov. 9, 1999) (emphasis added); see also
Osuagwu v. Peake, EEOC Dec. 0120081307, 2008 WL
2264405, at *1 (EEOC May 20, 2008) (same); Kinan v.
Cohen, EEOC Dec. 01981121, 1999 WL 320546, at *2
(EEOC May 6, 1999) (same); Floyd v. Temple, EEOC Dec.
01882317, 1989 WL 1006770, at *3 (EEOC June 22, 1989)
(same). Agency decisions implementing EEOC Management
Directive 110 demonstrate that the EEOC understands the cat-
egory of “agency official[s] logically connected with the EEO
process” to encompass EEO personnel in positions with a
variety of titles other than “Counselors,” including EEO “offi-
cers” like Zipp.6 In fact, even contact with certain agency offi-
cials who are not EEO personnel has been held sufficient to
satisfy the regulation’s “contact with a Counselor” require-
ment, provided they are found to be “logically connected to
the EEO process” within the agency. See, e.g., Duke v. Slater,
EEOC Dec. 01A02129, 2000 WL 732027, at *1 (EEOC May
22, 2000) (holding that a letter sent to the Regional Director
of the Department of Transportation’s Office of Civil Rights
qualified as initiating contact).
6
In fact, the EEOC’s decisions interpreting the regulatory exhaustion
requirement frequently make no distinction between EEO “officers” and
EEO “counselors.” See, e.g., Stanley v. Ashcroft, EEOC Dec. 01A31053,
2004 WL 321206, at *3 (EEOC Feb. 12, 2004) (assuming that contact
with an “EEO Officer” would satisfy the exhaustion requirement, but
holding that the employee had not produced sufficient evidence that he
made such contact in a timely manner); Hardy v. Danzig, EEOC Dec.
01981978, 1999 WL 91396, at *1 (EEOC Feb. 12, 1999) (holding that if
the employee’s initial contact with a “Deputy EEO Officer” occurred, as
alleged, “on March 24, 1997, then [his] allegations . . . were timely raised
with an EEO Counselor[,]” and remanding for factual development). See
also Waldrup v. Brownlee, EEOC Dec. 01A43725, 2005 WL 123294, at
*3 (EEOC Jan. 14, 2005) (holding that contact with an “EEO Specialist”
satisfied the exhaustion requirement); Clevenger v. Danzig, EEOC Dec.
01985794, 2000 WL 270449, at *2 (EEOC Feb. 29, 2000) (holding that
“the former Deputy EEO Director[ ] [was] a person who can be considered
logically connected to the EEO process” for purposes of the exhaustion
requirement).
 KRAUS v. PRESIDIO TRUST FACILITIES 9497
Relying on EEOC Management Directive 110 and the
EEOC’s case law, the Eighth Circuit recently deferred to the
agency’s interpretation of 29 C.F.R. § 1614.105 in Culpepper
v. Schafer, 548 F.3d 1119 (8th Cir. 2008). Culpepper held that
an employee of the U.S. Department of Agriculture who sent
letters to the Director of the USDA’s Office of Civil Rights
satisfied the regulation, because the Director is “logically con-
nected with the EEO process”: “Indeed, we cannot think of an
official in the USDA — except for an EEO counselor — who
is more closely connected with the EEO process than the
Director of the USDA’s Office of Civil Rights.” Id. at 1122-
23.

[5] Like the Eighth Circuit, we conclude that the EEOC’s
interpretation merits deference. An agency’s interpretation of
its own regulation is “controlling unless plainly erroneous or
inconsistent with the regulation.” Auer v. Robbins, 519 U.S.
452, 461 (1997) (internal quotation marks and citation omit-
ted). The EEOC’s interpretation of 29 C.F.R. § 1614.105 is
neither.

[6] Indeed, it makes good sense to interpret “contact with
a Counselor” pragmatically, to include contact with agency
officials with EEO counseling responsibilities or a connection
to the counseling process, without attributing dispositive sig-
nificance to the officials’ job titles. We have previously rec-
ognized that in the federal employee context, as for private
employees, “the purpose of Title VII’s exhaustion require-
ments . . . is to provide [agencies with] an opportunity to
reach a voluntary settlement of . . . employment discrimina-
tion dispute[s]” through informal processes before resorting to
the formal EEO complaint process. Jasch v. Potter, 302 F.3d
1092, 1094 (9th Cir. 2002) (internal quotation marks and cita-
tion omitted). Generally speaking, administrative exhaustion

is a practical and pragmatic doctrine that must be tai-
lored to fit the peculiarities of the administrative sys-
tem Congress has created. Exhaustion under Title
9498 KRAUS v. PRESIDIO TRUST FACILITIES
VII . . . is required in order to give federal agencies
an opportunity to handle matters internally whenever
possible and to ensure that the federal courts are bur-
dened only when reasonably necessary . . . . Con-
gress never, however, wanted the exhaustion
doctrine to become a massive procedural roadblock
to access to the courts.

Brown v. Marsh, 777 F.2d 8, 14 (D.C. Cir. 1985) (internal
quotation marks and citations omitted). Title VII’s goal of
facilitating the informal resolution of complaints where possi-
ble requires that its “procedural requirements are neither inter-
preted too technically nor applied too mechanically” by the
courts. Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981)
(internal quotation marks and citation omitted). The EEOC’s
pragmatic interpretation of 29 C.F.R. § 1614.105 comports
with this goal of encouraging informal settlement without
imposing an unduly rigid or formalistic procedural hurdle on
injured employees seeking redress. See also Klugel v. Small,
519 F. Supp. 2d 66, 72 (D.D.C. 2007) (deferring to the
EEOC’s interpretation of 29 C.F.R. § 1614.105, and reason-
ing that a narrower reading “would inappropriately turn the
informal counseling requirement into an unwarranted proce-
dural hurdle”).

Deferring to the EEOC’s interpretation, and taking as true
Kraus’s assertion that she contacted Officer Zipp about each
instance of discrimination within one day of its occurrence,7
7
Because the district court reached its conclusion on a motion for sum-
mary judgment, it was required — as are we — to construe the facts in
the record in the light most favorable to Kraus. See Whitman, 541 F.3d at
931. It does not matter at this stage that Kraus offered the district court
only a “bald[ ] state[ment]” about her contacts with Zipp without any evi-
dence to corroborate her statement. Whether a plaintiff in a Title VII
action has timely exhausted her administrative remedies “is an affirmative
defense, [so] the defendant bears the burden of pleading and proving it.”
Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The Presidio
Trust offered no evidence to suggest that Kraus did not contact Zipp as she
says she did.
 KRAUS v. PRESIDIO TRUST FACILITIES 9499
we reverse the district court’s grant of summary judgment.
Despite the fact that her job title is not “Counselor,” the
record shows that Officer Zipp facilitates contact between the
Presidio Trust’s employees and EEO counselors and advises
employees about the EEO complaint process. She is thus
clearly connected to the EEO process, and, indeed, is a “coun-
selor” within any ordinary meaning of the term, whatever the
job title.8

We do not decide whether, in contacting Zipp, Kraus “exhi-
bit[ed] an intent to begin the EEO process.” Management
Directive 110, at ch.2, § I.A n.1; see also Osuagwu, 2008 WL
2264405, at *1. On remand, the district court should decide
this question in the first instance. If Kraus did exhibit such an
intent — again, assuming her assertions are true — she will
have satisfied 29 C.F.R. § 1614.105’s requirement that she
“initiate contact with a Counselor within 45 days.” 29 C.F.R.
§ 1614.105(a)(1).

III. Conclusion

[7] In sum, we hold that the district court used an incorrect
legal standard in deciding that Kraus failed to satisfy 29
C.F.R. § 1614.105’s administrative exhaustion requirement as
to claims (3), (5), (7), (8), (9), (10), (11), (12), and (14). Fol-
8
Our decision in Johnson v. Henderson, 314 F.3d 409 (9th Cir. 2002),
is not to the contrary. Johnson held that a plaintiff ’s averment that “she
complained regularly to her supervisors about the harassing conduct, thus
complying with [the Postal Service]’s ‘Zero-Tolerance Policy’ for sexual
harassment,” was not by itself sufficient to show she had “initiate[d] con-
tact” as the regulation requires. 314 F.3d at 415. Johnson‘s holding is con-
sistent with the EEOC’s position that “neither internal appeals, nor
informal efforts to challenge an agency’s adverse action” satisfies the
requirement of “exhibiting an intent to begin the EEO process” as required
by EEOC Management Directive 110, at ch. 2, § I.A n.1. See Penn v.
Geren, EEOC Dec. 0120082927, 2008 WL 5479277, at *2 (EEOC Dec.
10, 2008). To satisfy the regulation, the employee must contact an official
who is logically connected with the EEO process, and the employee’s
complaints must exhibit an intent to start the EEO process.
9500 KRAUS v. PRESIDIO TRUST FACILITIES
lowing the EEOC’s interpretation of the regulation, we hold
that EEO officer Zipp is an “agency official logically con-
nected with the EEO process.” Management Directive 110, at
ch.2, § I.A n.1. The question remains whether, in contacting
her, Kraus “exhibit[ed] an intent to begin the EEO process.”
Id. We remand to the district court to answer this question in
the first instance, after such briefing, argument, and discovery
it considers necessary.9

For the foregoing reasons, we REVERSE and REMAND
to the district court for proceedings consistent with this opin-
ion.

9
The district court may determine on remand that it need not reach that
question. Summary judgment on many or all of the claims addressed here
may be merited on other bases — if, for example, the district court deter-
mines that Kraus has failed to make a prima facie showing of discrimina-
tion or retaliation. See Aragon v. Republic Silver State Disposal Inc., 292
F.3d 654, 658 (9th Cir. 2002); Ray v. Henderson, 217 F.3d 1234, 1240
(9th Cir. 2000).