Loe v. Heckler, 84-5369

Decision Date26 July 1985
Docket NumberNo. 84-5369,84-5369
Citation768 F.2d 409
Parties38 Fair Empl.Prac.Cas. 835, 37 Empl. Prac. Dec. P 35,465, 247 U.S.App.D.C. 292 Barbara LOE, Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-00057).

June D. Kalijarvi, Washington, D.C., with whom George M. Chuzi, Washington, D.C., was on brief, for appellant.

Patricia J. Kenney, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., R. Craig Lawrence, and Royce C. Lamberth, Asst. U.S. Atty., Washington, D.C., were on brief, for appellee.

Before ROBINSON, Chief Judge, GINSBURG, Circuit Judge, and WEIGEL, * Senior District Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge.

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. Secs. 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. Secs. 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.

B. Dishonor and Pursuit of Redress

The promise of priority consideration 3 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 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.

                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

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
C. Renewed Obligation

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...

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