                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           January 19, 2006
                                 TENTH CIRCUIT                            Elisabeth A. Shumaker
                            __________________________                       Clerk of Court

 AARON J. DOUGLAS,

          Plaintiff - Appellant,

 v.                                                       No. 03-1407
                                                         (D. Colorado)
 GALE A. NORTON, Secretary, United                   (D.Ct. No. 02-ES-1375)
 States Department of Interior,

          Defendant - Appellee.
                         ____________________________

                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and O’BRIEN, Circuit Judges.



      The district court dismissed Aaron Douglas’ Title VII race discrimination

complaint without prejudice for lack of subject matter jurisdiction based on his

failure to exhaust administrative remedies. Douglas appeals. Exercising

jurisdiction under 28 U.S.C. § 1291, 1 we have wended our way through the

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

      1
         Although the district court dismissed Douglas’ First Amended Complaint without
prejudice, we have jurisdiction over this appeal because the dismissal disposed of the
entire case. See Amazon, Inc. v. Dirt Camp, Inc., 273 F.3d 1271, 1275 (10th Cir. 2001)
procedural maze presented by the arguments. As will be evident, “arcane”

understates the administrative process bearing on the resolution of this matter.

We will discuss the myriad arguments presented, but at bottom Douglas elected

the wrong process. Even if his filing deadline is equitably tolled to accommodate

his error (it appears to have been a good faith error), he waited too long to file his

administrative complaint. 2 Because Douglas failed to timely exhaust

administrative remedies, we conclude dismissal was warranted but, for the

reasons given, remand to the district court for dismissal with prejudice.

                                   I. Factual Background

        Douglas, an African-American, holds a Master’s Degree in Forestry and a

Ph.D. in Economics. In December 1986, he began working as a GS-9 Economist

for the United States Fish and Wildlife Service at the Midcontinent Ecological

Science Center in Fort Collins, Colorado. Between 1987 and 1994, Douglas was

promoted to a GS-13. In 1996, his position was transferred to the Biological

Resources Division of the U.S. Geological Survey, a division of the Department

of Interior.



(“Although a dismissal without prejudice is usually not a final decision, where the
dismissal finally disposes of the case so that it is not subject to further proceedings in
federal court, the dismissal is final and appealable.”). Moreover, the district court should
have dismissed this case with prejudice.
        2
            The addendum to this Order and Judgment contains a concise administrative time
line.

                                              -2-
       Douglas is a member of the National Federation of Federal Employees and

is covered by a collective bargaining agreement. The collective bargaining

agreement sets forth a four-step grievance procedure. 3 The agreement states such

procedure is to be the exclusive method for resolving employee grievances except

“[a]n aggrieved employee affected by discrimination . . . may at his/her option

raise the matter under a statutory appellate procedure or the negotiated grievance

procedure, but not both.” (R. App. at 92.) The collective bargaining agreement

defines “grievance” to include any complaint by any employee “concerning any

matter relating to the employment of any employee” but expressly excludes a

complaint concerning “the classification of any position that does not result in the

reduction in pay or grade for the employee . . . .” (Id. at 91.)

       In June 1999, Douglas sought promotion to a higher classification.

Because Douglas’ position involved research, a Research Grade Evaluation Panel,

consisting of five white males, an African-American male scientist and an

African-American personnel specialist, rated Douglas’ credentials pursuant to the

Office of Personnel Management’s Research Grade Evaluation Guide. On or

about August 19, 1999, the panel issued its findings, recommending Douglas


       3
         The grievance procedure requires the employee to file a written grievance with
his immediate supervisor (Step 1), his second level supervisor (Step 2), and the Director
of the Midcontinent Ecological Science Center (Step 3). If the employee remains
unsatisfied at the conclusion of Step 3, the union has fifteen days to request arbitration on
the employee’s behalf (Step 4).

                                             -3-
remain at a GS-13. Douglas informally learned of the decision on August 31,

1999. 4

          Thereafter, on September 1, 1999, Douglas contacted Fred Gonzalez, a

counselor at the U.S. Geological Survey’s Equal Employment Opportunity (EEO)

office, stating he wished to file a discrimination claim concerning the Research

Grade Evaluation Panel’s decision. Douglas claims Gonzalez erroneously

informed him he could file such complaint with either the EEO office or through

the collective bargaining agreement’s grievance procedure. A week later, on

September 9, 1999, Douglas wrote a memo to the U.S. Geological Survey’s EEO

office alleging the Research Grade Evaluation Panel denied his request for re-

classification based on his race. Specifically, he challenged the panel awarding

him only twelve points (out of a possible twenty) for his “Qualifications and

Scientific Contributions” because he had not published extensively in “first tier”

economic journals. (Id. at 99-100.) Douglas claimed these “first tier” journals

predominately published the works of white authors. As a result, he suggested a

three member panel of university professors judge his publications based on the

quality of their content rather than the quality of the journal in which they

appeared. He also provided other suggestions for achieving a “color blind rating

process.” (Id. at 104.)


          4
              Douglas received official notice of the panel’s decision on September 26, 1999.

                                                 -4-
      Between September and November 1999, Douglas and the U.S. Geological

Survey attempted to settle the matter. On November 22, 1999, a mediation was

held. Settlement negotiations were unsuccessful. Therefore, on November 29,

1999, Douglas filed a formal complaint with Gonzalez alleging the denial of his

re-certification request constituted race discrimination. In this complaint,

Douglas stated:

      As you [] recall, you recently checked the [collective bargaining
      agreement] to make sure [it] covered the use of the negotiated
      grievance procedure for discrimination complaints. . . . Page 15 of
      the [agreement] allows for the use of the negotiated grievance
      procedure as a venue for filing discrimination complaints. . . . I have
      previously forwarded several written documents to your office
      indicating the nature of the complaint and its relation to the
      [Research Grade Evaluation Panel’s] finding that promotion was not
      warranted on the basis of my research achievements.

      However, I had not formally stated that I wish to go forward with the
      EEO compl[ai]nt. This signed letter indicates that I do wish to go
      forward with a formal EEO complaint in accordance with the
      [collective bargaining agreement’s] grievance procedure.

(Id. at 107 (emphasis added).)

      Thereafter, Douglas and the U.S. Geological Survey again attempted to

settle the matter. On February 23, 2000, the Regional Director of the U.S.

Geological Survey’s Biological Resources Division sent Douglas a proposed

settlement agreement. The agreement suggested, inter alia, that Douglas’

classification be re-reviewed by a new Research Grade Evaluation Panel charged

with concentrating on the scientific merits of Douglas’ publications and that

                                         -5-
Douglas be permitted to nominate at least one member of the new panel. Finding

the proposed agreement unsatisfactory, Douglas filed a second grievance on

March 3, 2000. In this grievance, he alleged the date of the incident as “February

23, 2000,” and asserted he was withdrawing his first grievance and filing the new

grievance based on additional information he received, namely that a white

economist in California had a higher grade level than he did despite having

significantly lower qualifications. (Id. at 110.) He also proposed a new

classification procedure, in which his performance would be compared to other

GS-13 or higher economists who had been given a Research Grade Evaluation

Panel rating in the past five years.

      On March 13, 2000, Douglas’ supervisor, Berton Lamb, responded to

Douglas’ second grievance. Lamb stated he did not consider Douglas’ March 3,

2000 grievance “new” because, like the first grievance, it alleged the U.S.

Geological Survey’s rating-promotion process was racially prejudicial. Lamb also

informed Douglas that complaints concerning the classification of one’s position

not resulting in a reduction in pay or grade were expressly excluded from the

scope of the negotiated grievance procedure. He further advised Douglas that

classification decisions could be appealed by filing an appeal directly with the

Office of Personnel Management or by filing an appeal first with the U.S.

Geological Survey and then with the Office of Personnel Management. Attached


                                         -6-
to Lamb’s response was information providing guidance on filing a classification

appeal.

      On March 14, 2000, Douglas submitted a third grievance essentially

reiterating the March 3, 2000 grievance. In this grievance, Douglas claimed “all

white economists who have a doctorate degree in economics and have been full-

time federal employees of the U.S. Geological Survey for more than 5-years are

rated as GS-15 employees.” (Id. at 134-35.) On April 3, 2000, Douglas Posson,

Director of the Midcontinent Ecological Science Center, issued a memorandum to

Douglas interpreting Douglas’ March 14, 2000 grievance as an appeal of Lamb’s

denial of his grievance. Posson affirmed the denial, stating:

      I do not dispute your right to file a complaint involving
      discrimination using the negotiated grievance procedure. I am
      rejecting your grievance on the basis that your new grievance is
      based on the same matter(s) as your original grievance, which was
      filed in an untimely manner and subsequently withdrawn. . . .
      Secondly, even if your grievance had been filed in a timely manner
      the remedy you are seeking involves a classification process other
      than those allowed by [the Office of Personnel Management] and . . .
      the classification of a position is not a grievable issue.

(Id. at 141.) Posson also addressed Douglas’ concern that he was receiving

different information about the time frames for filing an EEO complaint. Posson

informed Douglas there was a clear distinction between the filing of a

discrimination complaint with the EEO office and the filing of a similar complaint

under the collective bargaining agreement’s grievance procedure. Because

Douglas had elected to proceed under the latter, Posson advised Douglas that the

                                         -7-
time frames outlined in the negotiated grievance procedure must be followed.

Posson further advised Douglas that if he was not satisfied with Posson’s

decision, the union could request arbitration on his behalf.

      The next day, April 4, 2000, Douglas notified Posson and Lamb that he

wished to proceed to arbitration. In this notification, Douglas expressed his

disagreement with Posson and Lamb’s interpretation of the collective bargaining

agreement. Specifically, he contended that although complaints concerning one’s

classification were excluded from the grievance process, this exclusion did not

apply to classification complaints alleging discrimination. On August 17, 2000,

the parties proceeded to arbitration. 5

      In the meantime, Douglas pursued another avenue of attack. On June 21,

2000, Douglas requested the Office of Personnel Management to determine

whether his position was appropriately classified. He alleged his position was

under-classified and his position should be evaluated using the GS-110 Economist

standard rather than the Research Grade Evaluation Guide. On October 30, 2000,

the Office of Personnel Management issued its decision, agreeing with Douglas

that his position should be evaluated under the GS-110 Economist standard.

Nevertheless, applying the GS-110 standard, the Office of Personnel Management

decided Douglas’ position was properly classified as a GS-13.

      On November 23, 2000, the arbitrator issued his decision, denying Douglas’


      5
         Pursuant to the collective bargaining agreement’s grievance procedure,
arbitration may only be invoked by the union or the employer. Therefore, only the union,
the U.S. Geological Survey and the Department of Interior were parties to the arbitration
proceeding. Of course, the union advocated Douglas’ position.

                                           -8-
grievance. The arbitrator concluded:

      Based on the provisions of the contract, the testimony given at the
      hearing, and the arguments . . . of the parties, the Arbitrator has
      concluded that the grievance involves matters that are outside of his
      authority.

                                         ....

      It is clear that the Arbitrator does not have authority to decide a
      grievance involving “the classification of any position that does not
      result in the reduction in pay or grade for the employee”. In this
      case [Douglas] seeks to have the Arbitrator reclassify him to a higher
      rated job and to order that the employer give him backpay to 1991.
      [The negotiated grievance procedure] expressly prohibits me from
      doing that. There is no exception for discrimination cases. . . .
      Finally the fact that [Douglas] telephoned the Arbitrator on
      November 17 and informed him that [the Office of Personnel
      Management] had denied his appeal on the classification matters is
      dispositive of this issue. It would be irresponsible for me to order
      [Douglas] to be reclassified on this record based on the dismissal of
      the appeal by [the Office of Personnel Management].

(Id. at 172-74.) The arbitrator’s decision did not contain any notice of a right to

appeal.

      Several months later, in March or April of 2001, Douglas asked three

resource economics professors to rate his position; they rated it as that of a GS-15

economist for the 1991-2002 period. Armed with this new information, in April

2001, Douglas visited Carlos Villescas, Deputy Regional Director of the Equal

Employment Opportunity Commission (EEOC), to determine how to proceed.

Douglas states Villescas informed him it did not matter how he proceeded and the

new information could be introduced as an EEO complaint. On May 23, 2001,

Douglas contacted Ida Wilson, an EEO counselor. On June 25, 2001, Douglas


                                          -9-
followed-up this contact with a formal EEO complaint. It stated his claim was

ongoing, with no date of origin. He further asserted he was being treated

differently than his white counterparts. In particular, he claimed that while he

was at least as well-qualified as any of the eight white male economists who were

classified as a GS-15. He claimed this violated his rights under Title VII and

sought back pay from January 1, 1992, alleging he had been performing at a GS-

15 level since that date.

       On November 8, 2001, the Department of Interior’s EEO office denied

Douglas’ formal complaint. It concluded Douglas had elected to proceed under

the negotiated grievance procedure and therefore he was precluded from filing an

EEO complaint alleging the same matter. It also determined his complaint was

untimely, as he had waited six months to contact an EEO counselor after

receiving the Office of Personnel Management and arbitrator’s decisions.

Douglas appealed this decision to the EEOC. On June 3, 2002, the EEOC

affirmed the EEO decision. The EEOC informed Douglas he had the right to file

a civil action within ninety days of his receipt of the decision (i.e., a right to sue

letter).

                             II. Procedural Background

       On July 18, 2002, Douglas filed a pro se Title VII complaint against

Defendant Gale Norton (Norton), Secretary of the Department of the Interior, in

the United States District Court for the District of Colorado. On September 6,

2002, Douglas, then represented by counsel, filed his First Amended Complaint,

alleging Norton denied him a promotion to a GS-15 based on his race in violation


                                          -10-
of Title VII. On November 22, 2002, in lieu of an answer, Norton filed a Motion

to Dismiss pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil

Procedure. Norton argued Douglas elected the negotiated grievance procedure

but failed to exhaust his remedies under that procedure because he did not appeal

the arbitrator’s decision to the EEOC pursuant to 29 C.F.R. § 1614.401(d) (“A

grievant may appeal the final decision of the agency [or] the arbitrator [to the

EEOC] . . . when an issue of employment discrimination was raised in a

negotiated grievance procedure that permits such issues to be raised.”).

Additionally, Norton asserted Douglas could not rely on his June 26, 2001 EEO

complaint because it was barred based on his election of the negotiated grievance

procedure. On December 26, 2002, Douglas filed a response, claiming he made a

good-faith effort to exhaust his administrative remedies in light of the faulty

advice he received from the various agencies concerning his rights. He also

asserted he was not precluded from proceeding with his EEO complaint by his

election of the negotiated grievance procedure because that election was not a

“true election” as his claim was not covered by that procedure. (Id. at 256.)

       On July 11, 2003, the district court granted Norton’s motion to dismiss and

dismissed Douglas’ First Amended Complaint with prejudice. 6 The district court

concluded Douglas had opted to pursue his discrimination claim under the

negotiated grievance procedure and this election barred him from filing an EEO

complaint concerning that same discrimination. Because it was undisputed that


       6
         Pursuant to 28 U.S.C. § 636(c), both parties consented to the exercise of
jurisdiction by a magistrate judge.

                                            -11-
Douglas had failed to exhaust his remedies under the negotiated grievance

procedure, the court determined it lacked jurisdiction over Douglas’ Title VII

complaint and dismissal was appropriate. In doing so, it declined to consider

Douglas’ equitable arguments, finding waiver and estoppel were inapplicable

because the exhaustion of administrative remedies requirement is jurisdictional.

The district court’s order was filed on July 14, 2003.

       On September 12, 2003, Douglas filed a notice of appeal. 7 On October 21,

2003, Douglas filed a motion for reconsideration with the district court pursuant

to Rule 60(b)(6) of the Federal Rules of Civil Procedure. 8 In this motion,

Douglas argued (1) his “election” of the grievance procedure was a nullity as his



       7
        While normally a party in a civil case has thirty days from the date the judgment
or order appealed from is entered, see FED. R. APP. P. 4(a)(1)(A), because an officer of
the United States is a party to this case, Douglas had sixty days in which to file his notice
of appeal. FED. R. APP. P. 4(a)(1)(B).
       8
           FED. R. CIV. P. 60(b) provides:

       On motion and upon such terms as are just, the court may relieve a party . . .
       from a final judgment . . . for the following reasons: (1) mistake,
       inadvertence, surprise, or excusable neglect; (2) newly discovered evidence
       which by due diligence could not have been discovered in time to move for
       a new trial under Rule 59(b); (3) fraud . . . , misrepresentation, or other
       misconduct of an adverse party; (4) the judgment is void; (5) the judgment
       has been satisfied, released, or discharged, or a prior judgment upon which
       it is based has been reversed or otherwise vacated, or it is no longer
       equitable that the judgment should have prospective application; or (6) any
       other reason justifying relief from the operation of the judgment. The
       motion shall be made within a reasonable time, and for reasons (1), (2), and
       (3) not more than one year after the judgment, order, or proceeding was
       entered or taken. A motion under this subdivision (b) does not affect the
       finality of a judgment or suspend its operation.

                                             -12-
complaint was not grievable and therefore, the only inquiry is whether he

exhausted his remedies under the EEO procedure; (2) he exhausted his

administrative remedies under the EEO procedure and this exhaustion was timely

as his complaint alleged an ongoing violation, with a new act of discrimination

occurring with the receipt of every paycheck; (3) he was not required to appeal

the arbitrator’s decision because such arbitration was permissive and such an

appeal would have been futile as it was clear at that time that Douglas could not

proceed under the negotiated grievance procedure; (4) the doctrine of equitable

tolling applied as he was hampered by Norton’s erroneous advice; (5) his good-

faith efforts to exhaust his administrative remedies were sufficient to confer

jurisdiction on the court; and (6) the court’s dismissal should be without

prejudice. On December 9, 2003, the district court granted Douglas’ motion in

part, agreeing with Douglas that the dismissal of the First Amended Complaint

should be without prejudice; the court denied the remainder of the motion.

                              III. Standard of Review

      The district court dismissed this action under Rule 12(b)(1) of the Federal

Rules of Civil Procedure for lack of subject matter jurisdiction based on Douglas’

failure to exhaust his administrative remedies under the negotiated grievance

procedure. Normally, we review de novo dismissals for lack of subject matter

jurisdiction under Rule 12(b)(1). Davis ex rel. Davis v. United States, 343 F.3d

1282, 1294 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004). However, in

Zipes v. Trans World Airlines, Inc., the Supreme Court held that “filing a timely

charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit


                                        -13-
in federal court, but a requirement that, like a statute of limitations, is subject to

waiver, estoppel, and equitable tolling.” 455 U.S. 385, 393 (1982). 9 Here,

because Douglas filed a complaint with the EEOC, albeit allegedly untimely, the

district court erred in dismissing this case for lack of jurisdiction under Rule

12(b)(1). It should have analyzed this case under 12(b)(6) of the Federal Rules of

Civil Procedure. And, because the district court considered evidentiary materials

outside of Douglas’ complaint, it should have treated Norton’s motion as a motion

for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 10


       9
         Although some of our sister circuits have interpreted Zipes to mean exhaustion of
administrative remedies under Title VII is not jurisdictional at all but rather a condition
precedent or an affirmative defense subject to waiver, we have distinguished between the
timely filing of a charge with the EEOC, which is not jurisdictional, and the failure to file
such charge at all, which is jurisdictional. Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th
Cir. 1996). However, in Jones, we recognized that even after Zipes, some of our cases
failed to make this distinction and continued to refer to the requirement of an EEOC filing
as a jurisdictional requirement. Id. (citing Knopp v. Magaw, 9 F.3d 1478, 1479 (10th Cir.
1993); Khader v. Aspin, 1 F.3d 968, 970 (10th Cir. 1993); Hill v. Ibarra, 954 F.2d 1516,
1522 (10th Cir. 1992); Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir. 1984); Harbison v.
Goldschmidt, 693 F.2d 115, 118 (10th Cir. 1982)). Nonetheless, a review of those cases
demonstrates that none of them cited or acknowledged Zipes. Indeed, our cases citing
Zipes have recognized that the failure to timely exhaust administrative remedies is not a
jurisdictional deficiency but rather is similar in nature to a statute of limitations defense,
which is subject to waiver and tolling. See Harms v. IRS, 321 F.3d 1001, 1009 (10th Cir.
2003); Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th Cir. 2002);
Biester v. Midwest Health Servs., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996).
       10
         A motion to dismiss pursuant to Rule 12(b)(1), as opposed to Rule 12(b)(6),
allows the district court to rely on evidence outside the pleadings without converting the
motion to a motion for summary judgment. See Davis ex rel. Davis, 343 F.3d at 1296
(“When a party challenges the allegations supporting subject-matter jurisdiction, the court
has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing
to resolve disputed jurisdictional facts. In such instances, a court’s reference to evidence
outside the pleadings does not convert the [Rule 12(b)(1)] motion . . . to a Rule 56 motion

                                             -14-
See F ED . R. C IV . P. 12(b). Nevertheless, our review remains de novo. 11

Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir. 1995).

      Because exhaustion of administrative remedies is not jurisdictional in this

case, the district court also erred in refusing to consider Douglas’ equitable

tolling arguments and in dismissing this case without prejudice. However, as we

explain below, dismissal was appropriate as Douglas failed to timely exhaust his

administrative remedies and his arguments in favor of tolling are unavailing.

                                    IV. Discussion

      Douglas argues the district court erred in dismissing his case for lack of

subject matter jurisdiction based on his failure to exhaust administrative remedies.

Before addressing this argument, we turn to Norton’s argument, raised for the

first time on appeal, that the district court lacked jurisdiction over Douglas’

complaint based on his failure to appeal the Office of Personnel Management’s

October 30, 2000 decision to the Office of Special Counsel.

      A.     Failure to Appeal Office of Personnel Management’s Decision to the
             Office of Special Counsel

      Norton argues the district court lacked jurisdiction over Douglas’ complaint



[for summary judgment].”) (citations and quotations omitted). Were this case one that
could have been decided under Rule 12(b)(1), consideration of evidence outside the
pleadings would have been proper without converting Norton’s motion to dismiss to a
motion for summary judgment.
      11
         In the district court, both parties were provided the opportunity to and did
present evidence on the exhaustion of administrative remedies issue. Indeed, the record
appears complete on this issue. Hence, we need not remand this case or provide the
parties any further opportunity to present evidence on the issue.

                                          -15-
based on his failure to appeal the Office of Personnel Management’s October 30,

2000 decision to the Office of Special Counsel. She asserts that although

Douglas has always insisted his claim is a discrimination claim, the remedy he

seeks—back pay from 1992 to 2000—requires re-classification. Therefore,

Norton contends Douglas was required to exhaust his classification remedies,

which included appealing the Office of Personnel Management’s decision to the

Office of Special Counsel. While we normally decline to address arguments

raised for the first time on appeal, we address this argument because it challenges

the court’s jurisdiction. Baca v. King, 92 F.3d 1031, 1034 (10th Cir. 1996).

       Under the Classification Act, 5 U.S.C. §§ 5101-15, each federal agency

must classify every position under its jurisdiction in conformity with standards

published by the Office of Personnel Management. 5 U.S.C. § 5107. An

employee wishing to challenge his classification may request the Office of

Personnel Management to decide whether a position is appropriately classified

and if not, to re-classify it. 5 U.S.C. § 5112(a)(3), (4), (b); 5 C.F.R. §

511.603(a)(1). The “decision made by the Office [of Personnel Management] is

final unless reconsidered by the Office. There is no further right of appeal.” 5

C.F.R. § 511.612. 12 Despite the clear import of this regulation, cases from other

circuits have concluded that a federal employee may seek investigatory review of



       12
         Consistent with this regulation, the Office of Personnel Management’s October
30, 2000 decision notified Douglas that “[t]here is no right of further appeal.” (R. App. at
176.) Moreover, the materials Lamb provided to Douglas concerning classification
appeals expressly stated: “[The Office of Personnel Management] appeal decision is
binding. Employee has no further appeal options.” (Id. at 129.)

                                            -16-
an Office of Personnel Management’s classification decision with the Office of

Special Counsel and if the Office of Special Counsel decides the employee’s

complaint has merit, the Office of Special Counsel may petition the Merit

Systems Protection Board for corrective action. See, e.g., Hinkel v. England, 349

F.3d 162, 164-65 (3d Cir. 2003); Towers v. Horner, 791 F.2d 1244, 1247 (5th Cir.

1986).

         We need not resolve the tension between these cases and 5 C.F.R. §

511.612. Douglas is not challenging the Office of Personnel Management’s

October 30, 2000 classification decision. Rather, he is claiming that the Research

Grade Evaluation Panel’s denial of his request for re-classification in August

1999, which the U.S. Geological Survey implemented, was based on his race. As

Norton concedes, Douglas has always maintained that his claim is a race

discrimination claim. So, the mere fact that the remedy he seeks, back pay from

1992 to 2000, requires him to be re-classified at a GS-15 is irrelevant. 13

Consequently, Douglas’ failure to appeal the Office of Personnel Management’s

decision to the Office of Special Counsel did not deprive the district court of


          Indeed, if Douglas were to succeed on his Title VII claim, the court could order
         13

his promotion to a GS-15 with or without back pay, assuming Douglas would have been
promoted but for the unlawful discrimination. See 42 U.S.C. § 2000e-5(g)(1), (2)(A);
Franks v. Bowman Trans. Co., 424 U.S. 747, 763 (1976) (holding that one of the central
purposes of Title VII is to make a person whole for injuries suffered as a result of
unlawful employment discrimination and district courts have broad equitable discretion,
including ordering affirmative action, to effectuate this “make whole” objective)
(quotations omitted); Harbison v. Goldschmidt, 693 F.2d 115, 116-17 (10th Cir. 1982)
(reversing and remanding district court’s order requiring employer to promote the
plaintiff due to court’s failure to determine that plaintiff would have been promoted but
for the discrimination).

                                           -17-
jurisdiction.

      B.        Failure to Exhaust Administrative Remedies

      Douglas argues the district court erred in dismissing his case for failure to

exhaust his administrative remedies. In support of this argument, he asserts: (1)

his election of the negotiated grievance procedure was a nullity and therefore it is

irrelevant whether he exhausted his administrative remedies under that procedure;

(2) he exhausted his administrative remedies under the EEO statutory procedure

by contacting an EEO counselor in September 1999, submitting an EEO complaint

on June 25, 2001, and receiving a right to sue letter on June 3, 2003; (3) equitable

tolling of the time limits for filing an EEO complaint applies because he was

actively misled regarding his rights; and (4) his good faith effort to exhaust his

administrative remedies was sufficient to confer jurisdiction on the district court.

      Norton argues Douglas elected the grievance procedure and failed to

exhaust his administrative remedies under that procedure by not appealing the

arbitrator’s decision to the EEOC. She claims this election was not a nullity and

Douglas cannot rely on equitable tolling because he insisted on using the

grievance procedure despite being warned in March and April 2000 that his

complaint was not cognizable under it.

      Normally, a Title VII plaintiff satisfies the exhaustion requirement by filing

a charge with the EEOC and receiving a right to sue letter. Simms v. Okla. ex rel.

Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.

1999). However, because Douglas is a member of a union covered under the

Federal Labor-Management Relations Act (FLMRA), 5 U.S.C. §§ 7101-35,


                                         -18-
special rules apply. The FLMRA requires collective bargaining agreements

between a union and federal agency employer to provide procedures for the

settlement of employee grievances. 5 U.S.C. § 7121(a)(1). It further mandates

that these procedures, with limited exceptions, “be the exclusive administrative

procedures for resolving grievances which fall within its coverage.” Id. One

exception to this general rule is contained in § 7121(d), which states:

      An aggrieved employee affected by a prohibited personnel practice
      under [5 U.S.C. § 2302(b)(1)—prohibited discrimination] which also
      falls under the coverage of the negotiated grievance procedure may
      raise the matter under a statutory procedure or the negotiated
      procedure, but not both.

      Section 2302(b)(1) of Title 5 prohibits discrimination based on race, color,

religion, sex or national origin in certain personnel actions, including

appointments, promotions, decisions concerning pay or benefits and “any other

significant change[s] in duties, responsibilities, or working conditions.” 5 U.S.C.

§ 2302(a)(2)(A)(I), (ii), (ix), (xi), (b)(1). Therefore, an employee who alleges he

is the victim of race discrimination may elect to proceed under either the

negotiated grievance procedure or the statutory procedure, but not both. Once an

employee elects a certain procedure, it is irrevocable and the employee must

exhaust the remedies provided by that procedure. Johnson v. Peterson, 996 F.2d

397, 399 (D.C. Cir. 1993); Vinieratos v. United States, 939 F.2d 762, 768-69, 772

(9th Cir. 1991); Smith v. Kaldor, 869 F.2d 999, 1005 (6th Cir. 1989).

      However, this election only applies if the employee’s complaint “falls

under the coverage of the negotiated grievance procedure . . . .” 5 U.S.C. §

7121(d). Here, § 7121(c)(5) and the collective bargaining agreement expressly

                                         -19-
exclude from the scope of the grievance procedure any complaint concerning the

classification of a position which does not result in the reduction in grade or pay

of the employee. Consequently, because Douglas’ discrimination complaint

involved the classification of his position which did not result in a reduction in

his grade or pay, it was not grievable and § 7121’s election provision did not

apply. Douglas’ only recourse was to proceed under the EEO statutory procedure.

       However, it is undisputed that Douglas elected the negotiated grievance

procedure. 14 Hence, our dilemma—what effect does Douglas’ election to proceed

under the negotiated grievance procedure have on the exhaustion of

administrative remedies requirement where such election was unavailable to him?

We have unearthed no federal case law directly on point. However, in Chai v.



       14
          Under 5 U.S.C. § 7121(d), “[a]n employee shall be deemed to have exercised his
option under this subsection . . . at such time as the employee timely initiates an action
under the applicable statutory procedure or timely files a grievance in writing, . . .
whichever event occurs first.” Under the EEO statutory procedure, an aggrieved
employee is required to initiate contact with an EEO counselor within forty-five days of
the alleged discriminatory action in order to attempt to informally resolve the matter. 29
C.F.R. § 1614.105(a)(1). In general, the counselor has thirty days to resolve the matter
with the employee; if the matter is not resolved, then the counselor must inform the
employee in writing of his right to file a formal discrimination complaint. 29 C.F.R. §
1614.105(d). Within fifteen days of receiving the counselor’s notice, the employee must
file a written formal complaint with the agency that allegedly discriminated against him.
29 C.F.R. § 1614.106(a), (b). Under the regulations, the employee is not deemed to have
elected the statutory procedure until such formal complaint is filed. 29 C.F.R. §
1614.301(a). Here, although Douglas contacted an EEO counselor on September 1, 1999,
and wrote a memo to the EEO office on September 9, 1999, alleging discrimination, such
use of the pre-complaint process did not constitute an election of the statutory procedure.
Id. (“An election to proceed under this part is indicated only by the filing of a written
complaint; use of the pre-complaint process . . . does not constitute an election for
purposes of this section.”).

                                           -20-
Goldin, the EEOC encountered a similar factual scenario. No. 05970016, 1998

WL 422036 (E.E.O.C. July 10, 1998). There, the employee initially filed a

complaint under the applicable grievance procedure alleging he was denied a

position based on his race and national origin. His grievance was ultimately

denied by the arbitrator as nongrievable. A month later, the employee contacted

an EEO counselor concerning the same alleged discrimination. He subsequently

filed a formal EEO complaint with the EEOC. The EEOC denied the complaint

based on the employee’s untimely contact with the counselor and his previous

election to proceed via the grievance procedure. The employee sought

reconsideration, which the EEOC granted. The EEOC concluded that because the

subject matter of the employee’s grievance was not grievable, he did not make a

true election to proceed through the grievance process. Id. at *2. In response to

the employer’s argument that the employee should have known his complaint was

nongrievable because the employer informed him so during arbitration, the EEOC

stated:

       If we were to deny [the employee’s] right to proceed through the
       EEO process based solely on the argument that [the employee]
       should have known his [complaint] was ungrievable merely because
       the agency told him so, we would effectively be limiting [the
       employee’s] right to elect between the grievance and EEO procedures
       based upon the agency’s positions concerning the grievability of
       particular issues. Such a limitation would clearly produce untenable
       results and thus we decline to impose it in this case.

Id. at *3.

       The EEOC further determined that the invalidity of the employee’s election

of the grievance procedure presented a sufficient basis for tolling the time period

                                        -21-
for initiating the EEO procedure from the date of the arbitrator’s ruling. Id.

Because the employee had contacted an EEO counselor within forty-five days of

the arbitrator’s ruling, the EEOC concluded he had timely initiated the EEO

process. Id. See also Goddard v. Rubin, No. 01974986, 1998 WL 1846229, at

*1-2 (E.E.O.C. Nov. 6, 1998).

       We need not decide whether Douglas’ election of the grievance procedure

was a nullity. Nor need we decide what effect the U.S. Geological Survey’s

informing Douglas that his grievance was nongrievable prior to arbitration had on

Douglas’ decision to continue with the grievance procedure. 15 Even assuming we

disregard Douglas’ “election” of the grievance procedure, and toll the time limits

for Douglas to have initiated contact with an EEO counselor until the date of the

arbitrator’s decision on November 23, 2000, we still conclude Douglas failed to

timely exhaust his administrative remedies.

       The EEO procedure required Douglas to initiate contact with an EEO

counselor within forty-five days of the date of the alleged discriminatory action.

29 C.F.R. § 1614.105(a)(1). Here, counting from the date of the arbitrator’s

decision, Douglas had until January 8, 2001, in which to contact an EEO

counselor. He did not do so until May 23, 2001. While the forty-five day time

limit for initiating contact with a counselor may be extended in certain




       15
         We note that it was not until after Douglas had irrevocably elected the negotiated
grievance procedure that the U.S. Geological Survey informed him that his grievance was
not covered by the collective bargaining agreement.

                                           -22-
circumstances, 16 none of these circumstances are present here. Nor do we discern

anything in the record excusing Douglas from initiating such contact within forty-

five days. Therefore, Chai, even if applicable, is distinguishable. There, the

employee initiated the EEO process within forty-five days of learning his

complaint was not grievable. Compare Chai, 1998 WL 422036 at *3, with

Hoffman v. Tanoue, No. 01982239, 1999 WL 146642, at *2 (E.E.O.C. Mar. 3,

1999) (barring employee’s claim because she did not initiate contact with EEO

counselor within forty-five days of learning her claim was nongrievable).

      Douglas attempts to avoid this result by relying on his initial contact with

an EEO counselor in September 1999. He claims that because that contact

occurred within forty-five days of the date of the Research Grade Evaluation

Panel’s denial of his re-classification request, this contact, combined with his

June 25, 2001 complaint, satisfies the exhaustion requirement. This argument is

unavailing. Although Douglas engaged in the pre-complaint EEO process in

September 1999, he abandoned that process in favor of the grievance procedure.

Even assuming the September 1999 contact constituted the requisite pre-


      16
           29 C.F.R. § 1614.105(a)(2) provides:

      agency or the Commission shall extend the 45-day time limit . . . when the
      individual shows that he or she was not notified of the time limits and was
      not otherwise aware of them, that he or she did not know and reasonably
      should not have been known that the discriminatory matter or personnel
      action occurred, that despite due diligence he or she was prevented by
      circumstances beyond his or her control from contacting the counselor
      within the time limits, or for other reasons considered sufficient by the
      agency or the Commission.


                                            -23-
complaint process for the June 25, 2001 complaint, Douglas still fails to explain

why it took him seven months from the arbitrator’s decision to file his formal

complaint. See supra note 14 (setting forth time limits for filing formal complaint

after initiating contact with EEO counselor).

       Douglas also claims his June 25, 2001 complaint was timely under the

continuing violation doctrine. Specifically, he argues that because discrimination

in pay due to failure to promote is an ongoing violation, with a new act of

discrimination occurring with the receipt of every paycheck, each paycheck he

receives is a violation his civil rights and starts the clock for the filing of an EEO

complaint. This argument is foreclosed by National Rail Road Passenger

Corporation v. Morgan, 536 U.S. 101 (2002). There, the Supreme Court held that

when an employee is the victim of a discrete act of discrimination—such as

discharge, failure to promote, denial of transfer or refusal to hire—the employee

must file an EEO charge within either 180 or 300 days of the date of the act or

lose the ability to recover for it, even if such act is related to acts alleged in a

timely filed charge. Id. at 113-14. Under Morgan, “plaintiffs are now expressly

precluded from establishing a continuing violation exception for alleged discrete

acts of discrimination occurring prior to the limitations period, even if sufficiently

related to those acts occurring within the limitations period.” Davidson v. Am.

Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003). Here, Douglas’ complaint

alleged a discrete act of discrimination, the denial of his request for re-




                                           -24-
classification. 17 Therefore, the date the Research Grade Evaluation Panel denied

his re-classification request (or considering equitable tolling, the date Douglas

received the arbitrator’s decision) started the clock for filing a complaint with the



       17
          Douglas’ reliance on Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam), is
misplaced. There, in a pattern-or-practice case considering a discriminatory salary
structure which paid African-American employees less than their white counterparts, the
Supreme Court held that “[e]ach week’s paycheck that delivers less to a black than to a
similarly situated white is a wrong actionable under Title VII, regardless of the fact that
this pattern was begun prior to the effective date of Title VII.” Id. at 395-96 (Brennan, J.,
concurring); see also Goodwin v. Gen. Motors Corp., 275 F.3d 1005, 1010 (10th Cir.
2002) (decided prior to Morgan and holding that in pay discrimination cases, “each . . .
discriminatory salary payment constitutes a fresh violation of Title VII”). Since Morgan,
several circuits have attempted to reconcile it with Bazemore, recognizing that Morgan
relied on Bazemore and therefore did not overrule it. See, e.g., Shea v. Rice, 409 F.3d
448, 451-56 (D.C. Cir. 2005); Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007, 1009-
14 (7th Cir. 2003). These cases have drawn a distinction between pay discrimination
claims, where each paycheck received is itself discriminatory, and claims involving
discrete acts of discrimination which merely affect the employee’s pay. Compare Shea,
409 F.3d at 452, 454-55 (concluding employee’s claim that employer assigned him a
lower pay grade pursuant to a racially discriminatory diversity-promoting program was
timely because each paycheck received was discriminatory), and Reese, 347 F.3d at 1013-
14 (holding African-American employee’s claim that he did not receive a raise that his
white counterparts received was timely because each paycheck he received during the
statutory period was a “fresh act of discrimination”), with Law v. Continental Airlines
Corp., 399 F.3d 330, 333-34 (D.C. Cir. 2005) (concluding employer’s alleged
discriminatory denial of promotions to employees was actionable at time of denial, and
therefore each subsequent paycheck did not re-start statutory clock because each
paycheck itself was not discriminatory). Cf. Elmenayer v. ABF Freight Sys., Inc., 318
F.3d 130, 134-35 (2nd Cir. 2003) (holding an employer’s rejection of an employee’s
proposed accommodation of his religious observance requirements is “a single completed
action when taken,” even though “the effect of the employer’s rejection continues to be
felt by the employee for as long as he remains employed . . . .”). The latter scenario
applies here. Douglas has not contended that the GS pay system is discriminatory. His
claim is that the denial of his request for re-classification was discriminatory. This denial
is a discrete act of discrimination. That this denial may presently affect his pay does not
render the continuing violation theory applicable.

                                            -25-
EEOC, not each new paycheck.

        Lastly, Douglas asserts that even if he did not timely exhaust his

administrative remedies under the EEO procedure, his good faith efforts to

exhaust and to cooperate with the U.S. Geological Survey, the Department of

Interior and the EEOC satisfy the exhaustion requirement. “The twofold purpose

of the exhaustion requirement is to give notice of an alleged violation to the

charged party and to give the administrative agency an opportunity to conciliate

the claim in furtherance of Title VII’s goal of securing voluntary compliance.”

Woodman v. Runyon, 132 F.3d 1330, 1342 (10th Cir. 1997). Consistent with

these purposes, a “[g]ood faith effort by the employee to cooperate with the

agency and the EEOC and to provide all relevant, available information is all that

exhaustion requires.” Khader, 1 F.3d at 971(quotations omitted). Conversely,

when an employee refuses or fails to provide the agency information it needs to

evaluate the merits of the employee’s claim or the employee abandons his claim

before an agency has reached a determination, he cannot be deemed to have

exhausted his administrative remedies. Id. While Douglas’ actions from

September 1999 through the arbitrator’s decision may have constituted a good-

faith effort to exhaust, especially considering the morass of statutes and

regulations involved, such efforts do not excuse the six-month delay between the

arbitrator’s ruling and Douglas’ consultation with an EEO counselor on May 23,

2001.

        Based on the above, we conclude dismissal of Douglas’ First Amended

Complaint was proper due to his failure to timely exhaust his administrative


                                          -26-
remedies.

                              V. Conclusion

      REMANDED for dismissal with prejudice.

                            Entered by the Court:

                            Terrence L. O’Brien
                            United States Circuit Judge




                                   -27-
                    Addendum A - Administrative Time Line




June 1999            Douglas requests re-classification of his position.
August 1999          Research Grade Evaluation Panel denies Douglas’
                     request.
September 1, 1999    Douglas contacts USGS EEO office.
September 9, 1999    Douglas writes memo to USGS EEO office claiming the
                     failure to reclassify his position was race based.
Sept. - Nov. 1999    Settlement negotiations (unsuccessful).
November 22, 1999    Mediation (unsuccessful).
November 29, 1999    Douglas files formal complaint with USGS EEO office
                     electing CBA grievance procedure.
Nov. 1999 -          More settlement negotiations (unsuccessful).
Mar. 2000
March 3, 2000        Douglas files 2nd grievance (stating 1st grievance was
                     withdrawn and supplanted by 2nd grievance, which
                     contained new information).
March 13, 2000       Lamb, Douglas’ supervisor, denies grievance and advises
                     Douglas: 1) the March 3, 2000 grievance is not new
                     because it only alleged additional facts in support of his
                     claim, not a different claim, and 2) his complaint was not
                     a proper subject for a CBA grievance.
March 14, 2000       Douglas files 3rd grievance with additional information.
April 3, 2000        Posson, office director, treats 3rd grievance as an appeal
                     from Lamb’s Mar. 13, 2000 decision, affirms Lamb’s
                     decision and again advises Douglas the matter is not a
                     proper subject of a CBA grievance.
April 4, 2000        Douglas requests arbitration (under the CBA grievance
                     procedure).


                                      -28-
                    Addendum A - Administrative Time Line

June 21, 2000        Douglas seeks review of his classification with the OPM.
August 17, 2000      Arbitration hearing.
October 30, 2000     OPM decides Douglas’ position was properly classified.
November 23, 2000    Arbitrator decides Douglas’ claim is not subject to
                     arbitration.
May 23, 2001         Douglas contacts EEO counselor.
June 25, 2001        Douglas files formal EEO complaint.
November 8, 2001     DOI EEO office denies Douglas’ formal complaint.
June 3, 2002         EEOC affirms decision of DOI EEO office and issues
                     “right to sue” letter.




                                      -29-
