Alaska Employment Law

The 9th Circuit this morning resolved “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.”  The federal employee had contacted the site’s designated “EEO Officer” rather than its EEO Counselor.  The trial court held that the employee had failed to exhaust her administrative remedies.  The 9th Circuit reversed, extending deference to the EEOC’s interpretation of the application regulation.

The EEOC’s long-established interpretation of 29 C.F.R. § 1614.105 has been 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.”

The 9th Circuit panel held:

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). Following the EEOC’s interpretation of the regulation, we hold that EEO officer Zipp is an “agency official logically connected 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. 

Kraus v. Presidio Trust Facilities Division, 2009 WL _______ (9th Cir. July 23, 2009)