Barbara Loe, Appellant, v. Margaret M. Heckler, Secretary of Health and Human Services, 768 F.2d 409 (D.C. Cir. 1985)

Barbara Loe is attempting through this action to achieve a complete adjudication of her claims that her federal employer violated Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 253 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (1982)), and the Age Discrimination in Employment Act of 1967, Pub. L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. §§ 621-634 (1982)). She has been exposed to bureaucratic routing Byzantine in design, and utterly lacking in the perspective Congress intended for agency implementation of equal employment opportunity legislation.

Loe's probationary employment as a research analyst for the Department of Health, Education, and Welfare (HEW or Department) ended through termination in May 1976. After investigation, the agency found Loe had experienced discrimination because of her race (Asian) and national origin (China). Absent that discrimination, HEW conceded, Loe would have successfully completed her probationary period. Loe's initially successful pursuit of administrative redress yielded reinstatement, back pay, and, critical to the current controversy, HEW's promise of priority consideration for promotions for a one year period commencing February 1, 1977. HEW reneged on its promise. Loe then obtained from the Civil Service Commission a determination of her entitlement to a second year of priority consideration, starting in August 1978. Believing that HEW had dishonored this renewed obligation, Loe sought further administrative redress. Ultimately, in January 1981, she turned to the district court. There, her plea that HEW had failed to perform as promised encountered dismissal on exhaustion and timeliness grounds.

The record of Loe's long journey from HEW's original remedial failure to her court complaint is crowded with administrative charges, agency rulings, appeals within the executive branch, requests for reopening, and entreaties to her employer and to equal employment opportunity personnel detailing her grievance. She amply satisfied every purpose and element of Title VII's threshold requirements. Because the government erected, and the district court approved, an obstacle course we find manifestly inapt, we reverse the judgment dismissing Loe's complaint. We hold that she has indeed exhausted with all due diligence her administrative remedies, and has timely proceeded to court.

* A. Discrimination and Promise of Amends

Barbara Loe, an Asian woman born in China, was hired on May 11, 1975, to work in HEW's Office of Human Development (OHD) as a GS-13 Social Science Research Analyst.¹  HEW terminated Loe's employment on May 6, 1976, four days before the close of her first-year probation period. Joint Appendix (J.A.) 91-92. On May 27, 1976, after meeting with an equal employment opportunity (EEO) counselor, Loe filed an administrative charge alleging that proscribed discrimination triggered her termination. J.A. 91.

The EEO staff within HEW found that Loe had been terminated because of her race and national origin (but not age or sex), and that but for the discrimination, Loe would have successfully completed her probationary period. J.A. 103.²  HEW adopted the proposed findings and remedial recommendations of its EEO staff on February 1, 1977, and ordered OHD to reinstate Loe, with back pay, in a different division. The Department also directed OHD to "give [Loe] priority consideration, limited to one year from the date of this decision, to compensate for all promotions she could not be considered for because of the discrimination she suffered, for any GS-14 in OHD for which she qualifies and indicates an interest in." J.A. 105. Loe accepted this disposition of her case. See Supplemental Appendix (S.A.) 2.

The promise of priority consideration³  proved hollow. Loe reported for her new assignment in HEW's Administration on Aging (AOA) on March 21, 1977. Affidavit of Barbara Loe at 3, J.A. 41. From April through December 1977, she sought information about GS-14 positions from OHD's personnel department "many times," but was told "each time" that "there were 'no openings.' " Id. Early in January 1978, Loe contacted OHD's Director of EEO about HEW's apparent failure to carry out the priority consideration remedy. Id. The EEO Director obtained from OHD a list of fifteen GS-14 vacancies that had occurred during the priority period. See id.; J.A. 48. HEW had advised Loe of none of them.

At this point Loe did not know whether she had in fact been entitled to priority consideration for any of the fifteen vacancies, or whether the agency, perhaps, had properly determined that she was unqualified or otherwise not eligible for consideration. Nonetheless, the one year priority period would soon end, and Loe believed some action was necessary to avoid forfeiting her rights. Thus, while she continued to seek more information, she also wrote to HEW's EEO Director on January 31, 1978, to notify him of the Department's apparent default, to request an investigation--including a determination whether there had been further discrimination--and to ask that her "discrimination complaint be reopened at the point of implementation of remedy." J.A. 110.⁴  Simultaneously, Loe "appeal [ed]" to the Civil Service Commission's (CSC) Appeal Review Board (ARB) asserting that HEW had not complied with the priority consideration component of the Department's February 1, 1977, decision. J.A. 111.

From February through April 1978, Loe tried to resolve the matter informally through discussions and correspondence with officials in OHD's EEO and personnel divisions and in AOA. Affidavit of Barbara Loe at 3-4, J.A. 41-42. Her efforts yielded an April 10, 1978, memorandum from the EEO Director enclosing an OHD-prepared chart of GS-14 vacancies and, for the first time, remarks purporting to excuse the failure to refer Loe for five of the positions. J.A. 52-54.⁵  Shortly thereafter, on April 18, 1978, Loe requested EEO counseling. J.A. 57.⁶  After more than twenty-one days passed without achieving informal settlement, see 29 C.F.R. Sec. 1613.213(a),⁷  Loe requested a notice permitting her to file a formal charge with the Department. See J.A. 61.

On June 14, 1978, HEW denied Loe's January "reopening" request. See supra p. 413. The Department's decision declared "that [Loe had been] given priority consideration." J.A. 113. It advised Loe that she could appeal to the CSC-ARB within fifteen days. Id. She did so on June 30, 1978. J.A. 62. Loe also proceeded along the administrative charge route; she filed a formal charge against OHD on June 29, 1978, J.A. 65-71, alleging, in addition to matters no longer in contention,⁸  that failure to refer her for three positions and cancellation of a fourth, contrary to the "remedy pertaining to my earlier [charge] of discrimination," demonstrated that "the discriminatory acts continue." J.A. 70.⁹ 

Meanwhile, the cautionary "appeal" Loe had filed with the CSC-ARB in January 1978 acquired a life of its own. The ARB recognized that Loe was entirely satisfied with the original decision, including the proffered remedies, and that she intended to challenge only HEW's default in implementing one of those remedies--a matter outside ARB's bailiwick. S.A. 18. ARB referred Loe's appeal to CSC's Office of Federal Equal Employment Opportunity (OFEEO), id., which concluded, on July 21, 1978, that HEW had not implemented the priority consideration provision. J.A. 114-16. As Loe had maintained in an April 16, 1978, memorandum to HEW's EEO Director immediately prior to seeking EEO counseling, J.A. 55-56,¹⁰  and consonant with her June 29, 1978, formal administrative charge, see J.A. 70, OFEEO concluded that HEW's excuses were not valid. J.A. 115.

By way of recompense, OFEEO instructed that HEW should grant Loe priority consideration for a second year, beginning August 1, 1978. J.A. 116.¹¹  HEW agreed. It characterized this undertaking as an "exten [sion of] Dr. Loe's period of priority consideration." S.A. 22-23.

D. Alleged Dishonor of Renewed Obligation and Pursuit of Redress

HEW's promise again bore no fruit. Loe was considered, but not selected, for three GS-14 positions created as a result of an August 1978 agency-wide reorganization of OHD. Brief for the Appellee at 12-14. Having learned in late August 1978 that she had been passed by, Loe wrote OHD's Personnel Director on August 30, 1978, and requested information on whether she had been given priority consideration. S.A. 36. The response cited lack of supervisory experience as the reason Loe was not chosen for one position, located in the Administration for Children, Youth and Families, S.A. 37-39, but gave no explanation regarding the other two posts, located in AOA. Seeking "timely resolution to the complaint," Loe brought to OFEEO's attention the facts she knew on October 22, 1978, that led her to believe her nonselection for the AOA positions entailed continuing discrimination and default on HEW's remedial obligation. J.A. 117-19.

On December 11, 1978, the Assistant Secretary for OHD announced her decision that Loe had been afforded bona fide priority consideration for the two AOA positions. J.A. 122.¹²  In response to Loe's inquiry about appeal rights, HEW's EEO Director, on January 24, 1979, issued the Department's decision, which similarly found good faith compliance, and advised that Loe could appeal within fifteen days to EEOC's Office of Review and Appeals (ORA). J.A. 124-25.¹³ 

Loe appealed to ORA on January 31, 1979. J.A. 83-85. She also continued to press her cause before OFEEO; her January 22, 1979, letter to OFEEO recounts HEW's latest adverse decision, details evidence that, Loe believed, pointed to discrimination as the basis for not selecting her, and "present [s] the whole matter to you [ ] for a fair review." S.A. 51-56. Eventually, on December 8, 1980, EEOC's Technical Guidance Division (TGD), the successor to OFEEO, rejected the merits of her contentions. J.A. 142-45.¹⁴ 

Loe filed a complaint in district court on January 9, 1981. J.A. 150. The district judge dismissed the claim of HEW's default on the initial year of priority consideration; he reasoned that Loe had not seasonably appealed or pursued judicial relief from HEW's decision to grant a second year of priority. Loe v. Schweiker, No. 81-0057, mem. op. at 11-12 (D.D.C. Aug. 10, 1983), J.A. 20-21. On reconsideration, the district judge dismissed, as well, allegations relating to the extended period for priority consideration because Loe had neither reapproached an EEO counselor nor filed a discrete formal administrative charge pinpointing her August 1978 nonselection. For the same reasons, the court dismissed Loe's related age discrimination allegations. Loe v. Heckler, No. 81-0057 (D.D.C. Feb. 13, 1984), J.A. 24-30.

We conclude that the record manifests timely and complete satisfaction of Title VII's prerequisites to suit.¹⁵  We emphasize at the outset the principles informing those requirements; our opinion in this case, in keeping with the congressional design, is intended to forestall future agency argument or district court decision incongruent--as the handling of Loe's pleas was--with Title VII's remedial purposes.

II

Since 1972, Title VII's panoply has sheltered federal government employees from discrimination based on race, color, religion, sex, or national origin.¹⁶  Congress charged employing agencies with the primary obligation to assure nondiscrimination in federal personnel actions. See Civil Rights Act of 1964 (as amended by Equal Employment Opportunity Act of 1972), Sec. 717(a), (e), 42 U.S.C. § 2000e-16(a), (e) (1982). Correspondingly, Congress ordered first resort to agency processes before Title VII complainants repair to court. Section 717(c) renders filing an "initial charge" with the employing agency a prerequisite to court action, and it prescribes waiting periods and time limits for suit.¹⁷  EEOC regulations detail steps and time limits for the administrative process.¹⁸ 

In construing and applying these procedural specifications and limits, courts should be mindful of the judiciary's crucial role in the statutory enforcement design. See Brown v. General Services Administration, 425 U.S. 820, 825-29, 96 S. Ct. 1961, 1964-66, 48 L. Ed. 2d 402 (1976) (discussing congressional concern that, before the addition of Sec. 717 to Title VII, the administrative process for handling discrimination claims was unsatisfactory and judicial review, clogged by sovereign immunity and exhaustion arguments, was ineffective or unavailable). Suit thresholds warrant interpretation with sensitivity to Title VII's remedial aims. An overly technical approach would improperly impede the goal of making federal employment free from proscribed discrimination. See H.R.Rep. No. 328, 92d Cong., 1st Sess. 23-25 (1971). We stress, in particular, that judges slight the legislature's central command if they fail to recall that Title VII was devised as a measure that would be kept accessible to individuals untrained in negotiating procedural labyrinths. See, e.g., Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S. Ct. 1127, 1134, 71 L. Ed. 2d 234 (1982); Bethel v. Jefferson, 589 F.2d 631, 642-44 (D.C. Cir. 1978); Coles v. Penny, 531 F.2d 609, 614-16 (D.C. Cir. 1976).

We now discuss in turn Title VII's exhaustion and timeliness requirements, and detail how Loe abundantly fulfilled their aims.

III

Loe's assiduous effort to gain administrative redress after HEW defaulted on its February 1977 promise of priority consideration establishes exhaustion adequate to satisfy any reasonable view of that requirement. Information Loe obtained from HEW's EEO Director on April 10, 1978, indicated that the proffered promotion preference remedy had not been administered, and that Loe had been kept in the dark concerning the unfulfilled promise. J.A. 52-54. In accordance with applicable regulations, see 29 C.F.R. Sec. 1613.214(a) (1) (i) (1984), she initiated EEO counseling on April 18, 1978, well within the specified thirty days. J.A. 57. When counseling proved unavailing, Loe filed the statutorily required "initial charge" with the employing agency on June 29, 1978. J.A. 65-71.

These steps ensured that the agency had notice of Loe's grievance, and a fair opportunity to provide full redress or to attempt an informal accommodation. Title VII requires no more. See Bethel v. Jefferson, 589 F.2d at 644 (" [T]he basic demand ... is that the agency be given sufficient, even if technically flawed, notice of the grievance."); cf. Zipes, 455 U.S. at 398, 102 S. Ct. at 1135 (" [T]he particular purpose of the filing requirement [is] to give prompt notice to the employer."). Loe went beyond the legal requirement. Her outpouring of correspondence, charges, and appeals protested the nonperformance to the agency and EEO officials at virtually every turn. Notice overflows the record. Both the employer and CSC (later, EEOC) knew Loe's claims, participated extensively in her pre-suit struggle to achieve relief, and ultimately ruled on the merits. The agency has had its full day out of court.

Appellee faults Loe for initiating EEO counseling on April 18, 1978, rather than within thirty days of January 31, 1978, when HEW's initial breach was perfected. In January, however, Loe's sense that the agency had dishonored its obligation was based on surmise; she knew only that she had not been advised of fifteen GS-14 vacancies. To avoid forfeiting any rights through a technical lapse, she filed an appeal and a request to reopen "at the point of implementation" on January 31, 1978. J.A. 110-11. From February through April, J.A. 41-42, she pressed the agency and its EEO Director for more information, but the agency played close to the vest; it maintained that no vacancies at all fell within the ambit of its obligation. On April 18, 1978, eight days after Loe obtained from the EEO Director a list of vacancies and the agency's first explanatory words, see J.A. 52-54, she requested counseling. J.A. 57. In short, as promptly and precisely as the circumstances allowed, Loe provided her agency and, notably, its EEO officials, with notice of, and an opportunity to address, her concerns that a promised remedy to redress discrimination had been evaded.¹⁹ 

Loe's request for EEO counseling, made shortly after uncovering facts pointing to her agency's failure to perform its undertaking, satisfied more than the spirit of Title VII's procedural regime. Her request, it appears to us, went by the book. "Under Title VII, if an employee did not at the time know or have reason to know that an employment decision was discriminatory in nature, the time limits for filing an administrative complaint may be tolled." Stoller v. Marsh, 682 F.2d 971, 974 (D.C. Cir. 1982), cert. denied, 460 U.S. 1037, 103 S. Ct. 1427, 75 L. Ed. 2d 787 (1983); cf., e.g., Tucker v. United Parcel Service, 657 F.2d 724 (5th Cir. 1981) (180 days for filing EEOC complaint tolled for black seasonal employees, who had received notice that they were not being recalled, until they learned white employees were being recalled).²⁰  The time within which EEO counseling must be sought is likewise tolled until the claimant knows or has reason to know the facts that would support a charge of discrimination. See, e.g., Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981); Snead v. Harris, 22 Fair Empl.Prac.Cas. (BNA) 1434 (D.D.C. 1980) (EEOC counseling initiated within thirty days after plaintiff learned of discriminatory basis was timely, although five months after promotion was denied). Agency assertion of a tardy counseling request as a dispositive response is particularly disturbing where, as in Loe's case, the asserted delay is attributable to the agency's resisting an employee's diligent efforts to ferret out the facts.²¹ 

The district judge found Loe's administrative charge, filed June 29, 1978, wanting due to its silence about HEW's subsequently bypassing Loe for three GS-14 vacancies in August 1978. Loe v. Heckler, No. 81-0057, mem. op. at 2 (D.D.C. Feb. 13, 1984), J.A. 25. We perceive no such infirmity.

Loe's June 29, 1978, charge, as supplemented by her October 22, 1978, letter to OFEEO, sets out her contentions that HEW reneged on its original and extended undertakings to provide priority consideration. The October 22, 1978, letter details the circumstances of Loe's nonselection in August and asks for "timely resolution to the complaint," J.A. 117-19; the letter put OFEEO on sufficient notice that, indeed, Loe charged "the discriminatory acts continue." The Department's January 24, 1979, determination, J.A. 124-25, that Loe had been given bona fide priority consideration in August, belies any notion that HEW lacked notice or fair opportunity to address that matter.

All parties understood HEW's failure to provide priority consideration in August 1978 to be within the scope of the administrative charge. While appealing actions taken on portions of the administrative charge not now in dispute,²²  Loe reminded EEOC that "a priority consideration case ... is currently being reviewed," and pointed out that it was "initially filed with this [charge]." J.A. 133; see also J.A. 136. In HEW's eventual decision on those other facets of the charge, rendered on October 22, 1979, the agency declined to address the priority consideration matter because, it explained, it had previously done so and Loe had appealed to EEOC. J.A. 129. HEW's October 1979 decision, however, clearly acknowledged that nonselection in August 1978 came within Loe's charge.²³ 

Even absent such explicit indications of the linkage between Loe's initial charge and her supplementary correspondence, we would find Loe's administrative filings sufficient. An administrative charge specifying a pattern of ongoing discrimination will be interpreted as incorporating instances of subsequent, essentially similar conduct. See Almendral v. New York State Office of Mental Health, 743 F.2d 963, 967 (2d Cir. 1984). So long as the employer 1) was on notice that its actions allegedly violated Title VII, and 2) has been afforded an adequate opportunity to pursue a mutually satisfactory resolution with the employee, no purpose would be served by demanding a stream of further administrative pleadings denoted "charge" or "complaint." We underscore again that the strictures of common law pleading have no place in a scheme largely dependent upon self-service in drawing up administrative charges. Even if Loe did file the wrong writ or declaration, we would deny the special demurrer.

In President v. Vance, 627 F.2d 353 (D.C. Cir. 1980), we insisted on liberal construction of Title VII charges and related documents. President's administrative charge focused on race discrimination motivating an adverse performance evaluation. The district court dismissed his claim of bias regarding promotion, citing exhaustion, and we reversed. President had mentioned an agency policy of hindering minority promotion in his initial request for remedies, in a discussion with an EEO counselor, and in a letter rejecting his employer's proposal for relief. See id. at 358-59, 361. We observed: "The [charge] and other documents in the administrative record were more than adequate to put the [agency] on notice that President believed that he had been subjected to racial discrimination adversely affecting his promotional opportunities, and that he considered promotion to GS-13 an appropriate form of relief." Id. at 361 (emphasis added).

No different approach is warranted merely because post-charge conduct is asserted. See Almendral v. New York State Office of Mental Health, 743 F.2d at 965-68 (court may consider subsequent instances of nonpromotion reasonably related to charges filed with EEOC); Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984) (per curiam) (prior administrative charge and investigation of continuing discrimination and retaliation satisfy exhaustion threshold for suit challenging later discharge). An employee may not, of course, enlist the court's aid on claims never presented for agency consideration. See DeMedina v. Reinhardt, 444 F. Supp. 573, 578 (D.D.C. 1978) ("at no time prior to the institution of this suit was the [agency] notified of plaintiff's contention that it had violated Title VII" through post-charge conduct). Nor may the initial charge be dispensed with entirely. See Kizas v. Webster, 707 F.2d at 544-45. When, however, the initial charge and other documents achieve the ends of the exhaustion requirement, no more may be asked if the "wholesome objective" of antidiscrimination legislation is to be served. President v. Vance, 627 F.2d at 363.

IV

A suit contesting an agency's final action on the employee's charge, or the EEOC's decision on appeal, must be brought within thirty days of notice of the adverse determination. Section 717(c), 42 U.S.C. § 2000e-16(c) (1982). Loe filed her court complaint within the prescribed time.

The agency took action on Loe's June 29, 1978, initial charge when it agreed to extend the period for priority consideration from August 1, 1978, through July 31, 1979. S.A. 22-23. But that action, on its face, was favorable, and prolonged the period for performance. The priority period extension could not logically constitute the agency's final action regarding episodes of continuing noncompliance occurring during the extension period, primarily in August 1978--episodes that were, as we have seen, fairly encompassed by Loe's administrative pleadings.²⁴  Not until January 24, 1979, when HEW's EEO Director ruled that Loe had been given bona fide priority consideration in August 1978, J.A. 124-25, did "final action" trigger Title VII's time provisions.²⁵  Loe responded to HEW's final action with a timely appeal to EEOC-ORA on January 31, 1979. J.A. 83-85. The clock then returned to an off position. It started again December 8, 1980, when EEOC-TGD (successor to CSC-OFEEO) held against Loe on the merits. J.A. 142-45. Loe filed suit on January 9, 1981, within thirty days of notice of EEOC-TGD's decision. J.A. 150.

The government maintained before the district court, and again on appeal, that the thirty day period for filing suit began February 1, 1977, when HEW rendered its wholly favorable decision. This is irresponsible argument. Loe was satisfied with the February 1977 outcome and the stated remedy. She had no grievance until HEW reneged. To insist that Loe have anticipated her employer's dishonoring its Title VII commitment would require that we attribute either the vision of Cassandra to employees or universal bad faith to employers. Title VII does not mandate preemptive strikes as a precondition to judicial oversight of subsequent misconduct. Appellee's contention to the contrary "is hardly worthy of our great government." Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir. 1970).

Appellee strives to characterize the December 8, 1980, and February 2, 1981, EEOC decisions, upon which the timeliness of Loe's court complaint rests, as denials of requests to reopen HEW's original finding of discrimination, and urges that such rulings may not serve as the predicate for timely suit. Reopening was the subject of neither decision, however. Each clearly recognizes that Loe objected solely to HEW's noncompliance with the February 1, 1977, disposition, and made no attempt to disturb that root disposition.

In contrast, the plaintiff in Hofer v. Campbell, 581 F.2d 975 (D.C. Cir. 1978), cert. denied, 440 U.S. 909, 99 S. Ct. 1218, 59 L. Ed. 2d 457 (1979), sought to resurrect his discrimination claim, which HEW and CSC-ARB had rejected, by petitioning to reopen that decision nine months late and subsequently appealing the denial of reopening. Hofer accepted a reassignment in his original department, although CSC-ARB had recommended assignment elsewhere, and elected to "postpone" his judicial remedy while he saw "how this works out for me." Id. at 977. Section 717(c) does not afford room for such a postponement. This court said, " [an] aggrieved employee cannot provisionally accept the Board's decision, await the outcome of mandated Agency corrective measures, and, if dissatisfied, request the Civil Service Commission to reopen and reconsider the decision and thereby revive his claim." Id. at 978. Loe did not seek to "revive" her claim, nor was her acceptance of HEW's decision at all provisional. Unlike Hofer, Loe sought effectuation of precisely the terms she accepted, an aim that harmonizes with the policy of finality.²⁶ 

We conclude that Loe filed suit punctually; she circumvented neither the aims nor the literal terms of Title VII's time limitations.²⁷ 

CONCLUSION

HEW conceded that it wrongfully discharged Loe in 1976. To mend that wrong, it held out the promise of priority consideration--a promise that proved false. Called to task, the agency renewed its vow. Loe charges that the government never made good its word. In response, the agency offers argument made of tripwire; it has appropriated doctrines designed to ensure fair opportunity for voluntary compliance or informal settlement and deployed them to check, not forward, Title VII enforcement. Loe showered the agency with notice, as she invited it, repeatedly, to deal with her openly and honestly in a manner that an intelligent lay person could comprehend. Exhaustion and timeliness prerequisites cannot sensibly be applied to block judicial review of Loe's discrimination charges. After a nine year administrative quest, Loe is entitled to air her complaint in court.

Reversed and remanded.