On July 23, 2009, the U.S. Court of Appeals for the 9th Circuit issued its decision in Kraus v. Presidio Trust Facilities Division/Residential Management Branch (No. 07-17177). Reversing summary judgment by the district court, the 9th Circuit found that Kraus had timely initiated her EEO complaint within the 45-day deadline, even though the person she contacted did not have formal title of EEO "Counselor". In doing so, the 9th Circuit joined the 8th Circuit in endorsing the EEOC’s position that any agency official logically connected with the EEO process—EEO Counselor or not—can be contacted to timely initiate a federal employee’s EEO complaint.

Kraus was a maintenance inspector at the Presidio Trust, a federal agency. At the time, the Presidio Trust’s EEO staff included one federal employee and one contract employee with the formal title of EEO "Counselor", as well as Deborah Zapp, a federal employee with the formal title of "EEO Officer". In May 2005, Kraus filed a formal EEO complaint with the Presidio Trust alleging numerous claims of discrimination and reprisal. Kraus asserted that she had contacted Zapp within one or two days of each alleged incident. Kraus later contacted one of the two EEO "Counselors" as well, after the 45-day deadline of 29 C.F.R. § 1614.105 had passed. Kraus eventually filed a lawsuit in federal district court incorporating among other issues the claims identified in the May 2005 formal complaint. The district court granted the Presidio Trust’s summary judgment motion, reading the federal sector filing deadline of 29 C.F.R. § 1614.105 to require timely contact with someone with the formal title of EEO "Counselor". Since Zapp was an EEO Officer and not an EEO "Counselor", the district court did not consider Kraus’ contacts with Zapp to constitute timely initiation of Kraus’ EEO complaint.

On appeal, the 9th Circuit reversed and remanded the case for further adjudication. The 9th Circuit, deferring to the EEOC’s consistent interpretation of its regulations in Management Directive 110 and numerous decisions by the EEOC’s Office of Federal Operations, held that the 29 C.F.R. § 1614.105 did not require federal employees to solely initiate EEO counseling with someone bearing the formal job title of EEO "Counselor". Instead, concurring with the 8th Circuit and the EEOC, the 9th Circuit held that contact with any agency official suffices, so long as that official is logically connected with the EEO process and the contact exhibits the employee’s intent to start the EEO process.

In a separate decision filed the same day, the 9th Circuit dismissed several of Kraus’ particular allegations for failure to state a claim. Of note, Kraus’ complaint had included claims regarding her receipt of "3" ratings on specific performance elements of her overall performance evaluation instead of "4" ratings, and regarding Zapp having accused Kraus of sexually harassing another employee. The 9th Circuit held that while an undeserved performance rating can constitute an "adverse employment action" sufficient to support an EEO complaint, Kraus’ performance ratings claim here did not amount to an "adverse employment action" since even changing all of the specific elements would not mathematically change Kraus’ overall score. The 9th Circuit further held that Zapp’s comments could not constitute an "adverse employment action" since Zipp had not made the allegations of sexual harassment in public and had taken no action to discipline Kraus based on these sexual harassment allegations.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.fedweek.com/pubs/index.php This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.