Anderson v. Block, 86-5109

• Decision Date: 17 December 1986
• Docket Number: No. 86-5109,86-5109
• Parties: 42 Fair Empl.Prac.Cas. 982, 42 Empl. Prac. Dec. P 36,720 Marilyn J. ANDERSON, Appellant, v. John BLOCK, Secretary for the United States Department of Agriculture, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 145

807 F.2d 145

42 Fair Empl.Prac.Cas. 982,

42 Empl. Prac. Dec. P 36,720

Marilyn J. ANDERSON, Appellant, v. John BLOCK, Secretary for the United States Department of

Agriculture, Appellee.

No. 86-5109.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 17, 1986.

Decided Dec. 17, 1986.

Gerald R. Keating, Minneapolis, Minn., for appellant.

Carol Swanson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, and FAGG and BOWMAN, Circuit Judges.

FAGG, Circuit Judge.

Marilyn J. Anderson appeals the order of the district court dismissing her employment discrimination action for failure to pursue administrative remedies in the manner prescribed by statute. See 29 U.S.C. Sec. 794a; 42 U.S.C. Sec. 2000e-16. The district court held that Anderson, despite the pendency of administrative charges arising out of two suspensions, was required to file a new administrative charge following her termination; that Anderson's attempted filing was untimely; and that there was no basis for excusing the untimeliness. We reverse.

Anderson initially went to work at the U.S. Department of Agriculture (USDA) in the early 1970's. She left in 1976 when she failed to obtain a promotion, but returned in 1979 after prevailing on a sex discrimination charge arising out of the incident. In the next two-and-one-half years, however, Anderson's superiors suspended her three times, each time citing absenteeism and failure to properly request sick or annual leave. On April 25, 1981, and July 14, 1981, Anderson filed timely administrative charges in which she asserted that her second and third suspensions resulted from discrimination.

These administrative charges were still pending when, in February 1982, the USDA forced Anderson to resign in preference to being fired. Anderson filed an administrative charge in regard to this termination on March 23, 1982, thirty-three days after leaving work. The USDA notified her on June 7, 1982, that the filing was untimely, but the agency did not formally dismiss the charge until October 27, 1983. After exhausting further administrative appeals, Anderson in August 1984 filed suit in federal court challenging her termination.

On April 23, 1985, the USDA equal employment opportunity officer finally issued a decision on Anderson's first two administrative charges, finding that Anderson had been subjected to discrimination on the basis of her handicap--alcoholism--in the application of regulations regarding leaves and absences. Anderson's challenge to her termination rests in part on her contentions that the USDA continued to misapply leave regulations and based its termination decision not just on new conduct but also on the same absences which had been addressed through the suspensions. Anderson thus characterizes the discrimination asserted in the third, untimely administrative charge as being "like or reasonably related" to the discrimination asserted in her prior administrative charges. The district court did not address this issue because it rejected Anderson's view of the law.

The USDA concedes that either of Anderson's first two administrative charges would have provided a proper basis for a court action filed when Anderson filed this suit. Thus, Anderson argues, the untimeliness of her third, related, administrative charge should not bar her action. Anderson's position is supported by the rule that "[w]hen an employee seeks judicial relief for incidents not listed in [her] original [administrative] charge * * *, the judicial complaint nevertheless may encompass any discrimination like or reasonably related to the allegations of the [administrative] charge, including new acts occurring during the pendency of the charge." Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973); see Satz v. ITT Fin. Corp., 619 F.2d 738, 741 (8th Cir.1980).

This rule suggests that the viability of Anderson's court action does not hinge on the timeliness of her third administrative charge but rather should be considered in reference to her first and second charges. To force a plaintiff to file a new administrative charge with each continuing incident of discrimination would create needless procedural barriers. Oubichon, 482 F.2d at 571 (citing Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)). When suit may be brought on an administrative charge challenging related employer actions, the purposes of the statutory exhaustion requirement are not furthered through additional administrative filings because "once the [agency] has tried to achieve a consensual resolution of the complaint, and the discrimination continues, there is minimal likelihood that further conciliation will succeed." Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.1984) (per curiam). A plaintiff will be deemed to have exhausted administrative...