                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 BERNADINE JOHNSON,

           Plaintiff,
                  v.                                      Civil Action No. 08-1103 (JDB)
 JAMES B. PEAKE, Secretary, U.S.
 Department of Veterans Affairs,

           Defendant


                                 MEMORANDUM OPINION

       Plaintiff Bernadine Johnson brings this action against the Secretary of the Department of

Veterans Affairs ("Secretary" or "agency") pursuant to Title VII of the Civil Rights Act of 1964

("Title VII"), 42 U.S.C. § 2000e-5(f)(3), based on alleged sexual harassment by a fellow

employee at the agency. Currently before the Court is the Secretary's motion to dismiss or, in the

alternative, for summary judgment, on the ground that Johnson failed to exhaust her

administrative remedies.1 For the reasons discussed below, the motion will be treated as a

motion for summary judgment, and the motion will be denied.

                                        BACKGROUND

       Since about 1997, Johnson has been employed as a resource manager at the Substance

Abuse Rehabilitation Program ("SARP") in the agency's Veterans Affairs Medical Center. Def.'s

Mot., Ex. A, Tab B-1 ¶¶ 2, 31. Johnson alleges that as recently as July 18, 2005, Isaiah Pearson,

a Chief Counselor/Chief Rehabilitation Technician in SARP, engaged in sexual misconduct

towards her including sexual banter, physical contacts with private parts of her body, and


       1
         For ease of reference, the Court will refer to the Secretary's memorandum in support of
his motion for summary judgment as "Def.'s Mem.," and to Johnson's opposition as "Pl.'s Opp'n."
accusations that she was having sex with a former co-worker. Id. ¶¶ 4-6, 8, 14, 26, 31. Johnson

contends that although she complained several times to her supervisor, Karen Clark-Stone,

regarding Pearson's sexual misconduct, nothing was done in response to these complaints.

Johnson Decl. ¶ 2.

       On the morning of August 9, 2005, Johnson visited the Agency Equal Employment

Opportunity ("EEO") office and spoke with EEO office employee Mary George and Agency EEO

Manager David King regarding Pearson's sexual misconduct. Def.'s Mot., Ex. A, Tab B-4 at 9,

Tab B-5 at 2. The parties' accounts of this meeting differ markedly. According to George and

King, George provided Johnson with pamphlets and brochures detailing the EEO complaint

process, including the contact information for the Office of Resolution Management ("ORM").

Def.'s Mot., Ex. C at 207, 258. These pamphlets stated that the EEO complaint process should

be initiated through the ORM. See id. at 258, Exs. A-1, A-2. King recalls that Johnson made

only a vague complaint about sexual harassment. Def.'s Mot., Ex. A, Tab B-5 at 2. In response,

he explained to Johnson the process for filing an EEO complaint, and gave her a brochure that

included the ORM's contact information. Def.'s Mot., Ex. A, Tab B-5 at 4. George recalls that

Johnson stated several times during this meeting that she did not want to file a complaint. Def.'s

Mot., Ex. A, Tab B-4 at 4.

       According to Johnson, however, she provided King with a detailed account of the sexual

harassment by Pearson and was explicit in her desire to pursue a sexual harassment complaint: "I

just told him [King] I wanted it to stop and I came here to file a complaint, and I talked to Ms.

George and she sent me to talk to him." Def.'s Mot., Ex. C at 306. In response, King told her he

would conduct an investigation and get back to her. Id.; see also Johnson Decl. ¶¶ 5-6. Johnson

denies that she received any documents from either George or King that referenced the ORM.

                                                -2-
Johnson Decl. ¶ 7. She asserts that she believed George was an EEO counselor, and that when

she asked George if she was in the right place to file a complaint, George responded that she was.

See Def.'s Mot., Ex. C, at 303-04. Johnson denies making any statement to George or King

indicating that she did not wish to pursue a complaint, noting that at all times during that meeting

and thereafter, she intended to pursue any remedies available to her regarding Pearson's sexual

misconduct. Johnson Decl. ¶¶ 12-13.

       Indeed, Johnson returned to the EEO office the next day and spoke with George again.

Id. ¶ 8. According to George, Johnson once again did not indicate that she wanted to file an EEO

complaint. Def.'s Mot., Ex. C at 258. In contrast, however, Johnson says that it was George who

did not want her to file a complaint, as indicated by George's alleged statement to her that "the

Agency did not want her complaint to go further because there were already too many complaints

pending in the Agency." Johnson Decl. ¶ 9. To that end, George arranged for Johnson to meet

with Dr. Richard Rosse, the Chief of Psychiatry in the Mental Health Service, and Nathaniel

Banks, a program analyst. See id.; Def.'s Mot., Ex. A, Tab B-2 at 11. As a result of the meeting,

Johnson was offered some accommodation -- the exact terms of which are in dispute -- but which

were, in any event, considered inadequate by Johnson. See Def.'s Mot., Ex. A, Tab B-2, at 7-8;2

Pl.'s Resp. to Def.'s Statement of Material Facts at 8-9.

       On or about August 30, 2005, Johnson retained counsel, Michael Hoare, to represent her

in connection with her sexual harassment claim. Pl.'s Opp'n, Ex. 5. Correspondence between

Hoare and the agency followed, which resulted in Hoare eventually being informed by the agency



       2
           The Secretary contends that Johnson was offered positions in other areas of the Mental
Health Service where there would be little to no contact with Pearson and an indeterminate
amount of medical and administrative leave. Def.'s Mot., Ex. A, Tab B-2 at 7, 11-12. The relief,
if any, offered at the August 10th meeting, however, is not material to the Secretary's motion.

                                                 -3-
that EEO complaints must be filed through the ORM.3 Id. Ex. 3, 4, and 5.

       On September 26, 2005, Johnson contacted the ORM to report Pearson's sexual

misconduct. Def.'s Mot., Ex. A, Tab A-1 at 1. She was advised that she was over the 45-day

period to contact a counselor, and was asked why she waited to do so. Id. Tab A-3 at 2. Johnson

responded that she had reported the incident to King, and had never been informed that she

should contact the ORM. Id. She said that she became aware of the ORM after she retained an

attorney. Id. On August 8, 2006, Johnson submitted a hearing request form to the Equal

Employment Opportunity Commission ("EEOC"). Def.'s Mot., Ex. A at 3. On November 14,

2007, the EEOC held an administrative hearing on the agency's motion to dismiss Johnson's

claims as untimely. Based on this hearing, the administrative judge dismissed Johnson's EEO

complaint. Def.'s Mot., Ex. D at 5. Johnson now seeks de novo review of her sexual harassment

claim before this Court, as she is entitled to do under Title VII. See Scott v. Johanns, 409 F.3d

466, 469 (D.C. Cir. 2005).

                                      LEGAL STANDARD

       This motion will be treated as a motion for summary judgment. The Secretary asserts that

his motion is a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1). See Def.'s Mot. at 1. However, "strictly speaking . . . the requirement that a charge

be timely filed with the EEOC is not jurisdictional . . .," and thus the Court will treat the motion


       3
          On September 1, 2005, Hoare wrote a letter to George requesting that she direct
correspondence regarding Johnson's "EEO complaint" to him. Pl.'s Opp'n, Ex. 5. On September
26, following a telephone conversation that took place on September 15, Hoare requested
documentation from George regarding Johnson's visits to the EEO office on August 9 and 10. Id.
Ex. 4. Johnson alleges, and the agency denies, that George never faxed this information to
Hoare. Id. at 5 n. 2, Ex. 4. Then, in a letter dated September 30, 2005, George stated that she
had informed Hoare over the telephone on September 15 that all EEO complaints are filed
through the ORM. Id. Ex. 3.

                                                 -4-
as seeking dismissal pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can

be granted. Simpkins v. Wash. Metro. Area Transit Auth., No. 96-7188, 1997 WL 702349, at *2

(D.C. Cir. 1997). When, as here, on a Rule 12(b)(6) motion "matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56." Fed. R. Civ. P. 12(d).

       Summary judgment is appropriate when the pleadings and the evidence demonstrate that

"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial

responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its

motion by identifying those portions of "the pleadings, the discovery and disclosure materials on

file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material

fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

       In determining whether there exists a genuine issue of material fact sufficient to preclude

summary judgment, the court must regard the non-movant's statements as true and accept all

evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the

"mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to

the absence of evidence proffered by the non-moving party, a moving party may succeed on

summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50

(citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence

on which the jury could reasonably find for the [non-movant]." Id. at 252.

                                                -5-
                                            ANALYSIS

I.     Exhaustion of Administrative Remedies

       Before filing a lawsuit under Title VII, a plaintiff must exhaust her administrative

remedies. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The first step in the

exhaustion process is timely initiation of contact with an EEO counselor. See 29 C.F.R. §

1614.105(a)(1). EEOC regulations state that "an aggrieved person must initiate contact with a

Counselor within 45 days of the date of the matter alleged to be discriminatory . . . ." Id.; Steele

v. Schafer, 535 F.3d 689, 693 (D.C. Cir. 2008).

       The Secretary contends that Johnson did not contact an EEO counselor within 45 days of

Pearson's alleged sexual misconduct -- that is, by September 1, 2005 -- and thus did not exhaust

her administrative remedies before filing a complaint in this Court. Def.'s Mem. at 11-13. He

argues that George and King, whom Johnson did contact within the 45-day window, are EEO

staff members, not EEO counselors. Id. The Secretary contends that only contact with formally

designated "EEO counselors" in the ORM within the 45-day window will suffice. See id.

Moreover, the Secretary argues that Johnson did not demonstrate an intent to begin the EEO

process when she reported Pearson's alleged sexual misconduct to George and King. See id. at

13-15. He asserts that although they informed Johnson about the EEO process, Johnson stated

several times that she did not intend to file a complaint. Id. Johnson disputes these allegations,

and argues that the evidence shows she demonstrated an intent to begin the EEO process. Pl.'s

Opp'n at 13-17.

       The resolution of the exhaustion issue turns primarily on whether either George or King

was a "Counselor" within the meaning of the regulation, 29 C.F.R. § 1614.105(a)(1), and, if so,

whether Johnson's meetings with them on August 9 and 10, 2005 satisfied the requirement to

                                                 -6-
"initiate contact." The EEOC regulations do not set forth a definition of the term "Counselor."

However, under the longstanding EEOC interpretation of § 1614.105(a)(1), the requirement of

"initiat[ing] contact with a Counselor" is satisfied when an employee initiates contact with an

agency official logically connected with the EEO process and exhibits an intent to begin the EEO

process. E.g., Allen v. Runyon, App. No. 01952557, 1996 WL 391224, *3 (E.E.O.C. July 8,

1996). All of the courts that have considered this interpretation have found it to be reasonable,

and some have even gone further and suggested in dicta that the "Counselor" requirement may be

dispensed with in its entirety. See Johnson v. Cohen, 6 Fed. Appx. 308, 311 (6th Cir. 2001) (To

"initiate contact" "an employee must (1) contact an agency official logically connected with the

EEO process, even if that official is not an EEO counselor . . . ."); Klugel v. Small, 519 F. Supp.

2d 66, 71 (D.D.C. 2007) ("An employee who believes that she has been the subject of

discrimination must timely (1) contact an agency official 'logically connected' with the EEO

process (not necessarily a Counselor) . . . ."); Cox v. Cuomo, App. No. 01972354, 1998 WL

455064, at *2 (E.E.O.C. July 30, 1998) ("The [EEOC] has long held that a complainant may

satisfy the criterion of counselor contact by initiating contact with an agency official logically

connected to the EEO process, even if the official is not an EEO Counselor."). This Court agrees

that a federal employee satisfies the requirement to "initiate contact with a Counselor" by

initiating contact with "an agency official logically connected with the EEO process," but

declines to embrace the suggestion that under that interpretation, a "Counselor" can be someone

who is "not a Counselor" without regard to whether they even offer any counseling. Such an

interpretation would be contrary to the plain language of the regulation, and would ignore the

remainder of the provisions describing all of the "counseling" services a "Counselor" must offer.

See 29 C.F.R. § 1614.105(b) (setting forth mandatory Counselor activities at "initial counseling

                                                 -7-
session" and the manner of "conduct[ing] counseling activities").

       Johnson has produced evidence to support her claim that George and King may be

considered "Counselor[s]" within the meaning of § 1614.105 (a)(1). The term "Counselor" is,

standing alone, ambiguous, and does not readily identify the personnel within any given agency

who are considered "Counselor[s]." The Secretary's evidence indicates that the Department has

formally designated only ORM staff as EEO "Counselor[s]," and has provided both constructive

and actual notice to employees that they must initiate the EEO process through an EEO counselor

at ORM. Def.'s Mot., Ex. A, Tab B-5 at 2, Ex. B ¶ 3. But Johnson denies having received any

notice, and the posters that ostensibly provided constructive notice are, according to one witness,

obscured, if visible at all. Johnson Decl. ¶¶ 7, 14; Settle Decl. ¶¶ 8-10. More significantly,

Johnson has produced memoranda distributed to all agency employees stating that incidents of

discrimination should be reported to the local EEO office or the ORM, thus supporting the view

that employees in either office are "Counselor[s]." Pl.'s Opp'n, Exs. 6-7. Furthermore, Johnson's

declaration indicates that George and King held themselves out as EEO counselors. See Johnson

Decl. ¶¶ 7, 10-13 (stating that "based on what Ms. George told me, I understood that I was in the

right place to pursue my complaint . . ." and "[a]t no time on August 9, 2005 did David King

refer me to the [ORM] . . . ."); see also Def.'s Mot., Ex. C at 306 (Johnson's hearing testimony

that "he [King] told me he would do an investigation and he would get back to me"); see also

Settle Decl. ¶¶ 5-6 (stating that based on his communications with Johnson and King on August

9, 2005, Settle understood that Johnson had pursued an EEO complaint with King). Indeed, at

least one of the agency's own documents refers to George as an "EEO counselor." See Def.'s

Mot., Ex. A, Tab B-2 at 6 & Attachment (Dr. Rosse's Report of Contact, stating that "Ms. Mary

George, EEO Counselor" and others were present for the August 10, 2005 meeting with

                                                -8-
Johnson). Hence, precisely who the agency designated as an EEO "Counselor" is a matter in

genuine factual dispute. Regarding Johnson's evidence to be true, as the Court must on summary

judgment, see Anderson, 477 U.S. at 255, Johnson initiated contact with a "Counselor" when she

met with George and King on August 9, 2005, well within the 45-day time period set forth by the

EEOC. Based on Johnson's declaration and exhibits, then, George and King were logically

connected to the EEO process and held themselves out as EEO counselors, which is sufficient to

consider them counselors within the meaning of the EEOC regulation, 29 C.F.R. §

1614.105(a)(1).

       There is also a genuine issue of material fact as to whether Johnson demonstrated the

requisite "intent to begin the EEO process" during her meetings at the EEO office on August 9

and 10, 2005. Whether Johnson told George and King that she intended to file a complaint is

vigorously disputed. Johnson testified at the administrative hearing that she "told him [King] I

wanted it [the harassment] to stop and I came here to file a complaint." Def.'s Mot., Ex. C, at

306; see also Johnson Decl. ¶ 12. But George recalls the opposite -- according to her, Johnson

stated several times during the meeting that she did not want to file a complaint. Def.'s Mot., Ex.

A, Tab B-4 at 4. In addition, the parties dispute whether EEO office staff members informed

Johnson that any complaint must be filed with the ORM. Johnson Decl. ¶¶ 7, 9-11; Def.'s Mot.,

Ex. A, Tab B-4 at 4; Def.'s Mot., Ex. C at 258, Exs. A-1, A-2. These material factual issues

cannot be resolved by the Court now. Therefore, the Secretary's motion for summary judgment

will be denied.

II.    Equitable Tolling

       Johnson argues that the Court should equitably toll the 45-day period for initiating contact

with a counselor because she reasonably relied on agency statements that an EEO complaint can

                                                -9-
be initiated in the EEO office. Pl.'s Opp'n at 14, Exs. 6-7. Moreover, Johnson asserts that

George told her that "the Agency did not want her complaint to go further because there were

already too many complaints pending in the Agency." Johnson Decl. ¶ 9. EEOC regulations

require that the agency extend the 45-day time limit if "the individual shows that he or she was

not notified of the time limits and was not otherwise aware of them . . . [or] that despite due

diligence he or she was prevented by circumstances beyond his or her control from contacting the

counselor within the time limits . . . ." 29 C.F.R. § 1614.105(a)(2).4 However, because the

Secretary's motion for summary judgment will be denied on other grounds, and because of the

many factual disputes in this case, the Court will not reach the issue of equitable tolling at this

time.

                                          CONCLUSION

        For the foregoing reasons, the Secretary's motion for summary judgment will be denied.

A separate Order accompanies this Memorandum Opinion.



                                                                           /s/
                                                                     John D. Bates
                                                               United States District Judge
Date: July 13, 2009




        4
          Equitable tolling based on EEOC regulations is independent from the more demanding
common law standard, which allows equitable tolling only in "extraordinary and carefully
circumscribed circumstances." Harris v. Gonzales, 488 F.3d 442, 444 (D.C. Cir. 2007). Under
the common law standard, equitable tolling has been held applicable to "parties who were misled
about the running of a limitations period, whether by an adversary's actions, . . . by a government
official's advice upon which they reasonably relied, . . . or by inaccurate or ineffective notice
from a government agency required to provide notice of the limitations period . . . ." Bowden,
106 F.3d at 438.
                                               -10-
