Wilkinson v. Rumsfeld , 100 F. App'x 155 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DESIREE WILKINSON, 
Plaintiff-Appellant,
v.
DONALD H. RUMSFELD, Secretary,  No. 03-1808
Department of Defense (Defense
Finance & Accounting Service),
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CA-02-359-2)
Argued: February 24, 2004
Decided: June 7, 2004
Before WILLIAMS and MICHAEL, Circuit Judges, and
William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Reversed and remanded by unpublished opinion. Judge Quarles wrote
the opinion, in which Judge Williams and Judge Michael joined.
COUNSEL
ARGUED: Michael Patrick Deeds, KESTELL & ASSOCIATES,
Washington, D.C., for Appellant. Michael Anson Rhine, Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
2 WILKINSON v. RUMSFELD
Paul J. McNulty, United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
QUARLES, District Judge:
In this appeal, we consider whether Plaintiff Desiree Wilkinson
failed to timely seek EEO counseling regarding her hostile environ-
ment claim under the Rehabilitation Act of 1973, Title 29 U.S.C.
§ 791, et seq., as amended.
I.
Desiree Wilkinson began to work for the Defense Finance and
Accounting Service ("DFAS"), a federal employer, in 1982. (J.A. at
231, ¶ 2.) In 1984, a tractor trailer ran over her car at the DFAS facil-
ity; the event caused her severe depression, panic attacks, and post-
traumatic stress. (J.A. at 231, ¶ 3.)
In 1987, Wilkinson asked to be approved for advanced sick leave
to undergo psychological treatment. (J.A. at 231, ¶ 5.) Ms. Frankie
Brinkley, who was then the Deputy Director of DFAS, became aware
of Wilkinson’s condition because of this leave request. (J.A. at 231,
¶ 5.) Brinkley became Director of DFAS in January 1995; Joseph
Saunders replaced her as Deputy Director shortly afterwards. (J.A. at
231, ¶ 5, 104-05.) About a month after Saunders took over the deputy
position, Brinkley advised him to stay away from Wilkinson because
"she can be troublesome and has some mental problems." (J.A. at
284-85.) Brinkley also told John Turner that he would not be consid-
ered for promotion if he continued to associate with Wilkinson. (J.A.
at 262-63.)
WILKINSON v. RUMSFELD 3
Wilkinson’s co-workers and supervisors began to avoid her, did not
greet her in the hallway, and were less cooperative and helpful to her
during the work day. (J.A. at 231-32, ¶ 6.) These experiences left Wil-
kinson feeling depressed, shunned, and isolated. Id. One of Wilkin-
son’s supervisors, Clare Britcher, would rush Wilkinson out of her
office when she came in to discuss work; this made it difficult for
Wilkinson to perform some of her assignments. (J.A. at 233, ¶ 10.)
Wilkinson experienced disabling anxiety and panic feelings as a
result. Id.During September and October 1996, Wilkinson’s co-workers and
supervisors continued to shun her because of Brinkley’s order not to
associate with her. (J.A. at 233, ¶ 12.) In one incident, 15 to 20 co-
workers left an area just outside the building as soon as Wilkinson
joined them. Id. On September 30, 1996, Britcher told Wilkinson that
she had avoided her because shortly after she began working at
DFAS, Brinkley told her to keep her distance from Wilkinson and to
watch her. (J.A. at 201-02) (Britcher Depo.). Wilkinson sought EEO
counseling on October 3, 1996 and filed her formal EEO complaint
on January 17, 1997. (J.A. at 125-26.)
On November 10, 1999, the EEOC found that Wilkinson had not
proven discrimination by a preponderance of the evidence. (J.A. at
316, 318.) The EEOC found that Brinkley was "abusive to virtually
everyone with whom she works" and had not treated Wilkinson dif-
ferently because of her disability. (J.A. at 331-32.)
Wilkinson filed an action in the United States District Court for the
Eastern District of Virginia, at Norfolk, on May 17, 2002. On January
16, 2003, defendant filed a motion to dismiss for lack of subject mat-
ter jurisdiction on the basis that Wilkinson had failed to seek EEO
counseling within 45 days of a discriminatory event. (J.A. at 18, 28.)
After that motion was denied, the government filed a motion for sum-
mary judgment on the same basis. (J.A. at 158.) On June 10, 2003,
the District Court granted summary judgment for the defendant after
finding that only the September 30, 1996 conversation had occurred
within the 45-day period. (J.A. at 358, 364-66.) The District Court
determined that the September 30 conversation was not part of the
alleged hostile environment and that EEO counseling had not been
timely sought. Id. This appeal followed.
4 WILKINSON v. RUMSFELD
II.
The District Court’s grant of summary judgment is reviewed de
novo and the nonmovant is entitled to all reasonable inferences in her
favor. Edelman v. Lynchburg College, 300 F.3d 400, 404 (4th Cir.
2002). Summary judgment may be granted when the moving party
shows that there is no genuine issue of material fact, and it is legally
entitled to judgment. Kitchen v. Upshaw, 286 F.3d 179, 182 (4th Cir.
2002), citing Fed.R.Civ.P. 56(c). If the moving party would not bear
the burden of proof at trial, its initial burden is met by "pointing out"
that the nonmoving party has not made a sufficient showing on an
essential element of its case. See Celotex Corp. v. Catrett, 477 U.S.
317, 323-25 (1986). If the moving party would bear the burden of
proof at trial, it discharges its initial burden by offering evidence that,
if undisputed, would entitle it to judgment. Brinkley v. Harbour Rec-
reation Club, 180 F.3d 598, 614 (4th Cir. 1999).
After the initial showing, summary judgment will be granted unless
the opponent produces evidence upon which a reasonable jury could
return a verdict in its favor. Celotex, 477 U.S. at 323-25, citing Mat-
sushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002).
Rehabilitation Act claims against the federal government must
comply with the same administrative procedures that govern federal
employee Title VII claims. Doe v. Garrett, 903 F.2d 1455, 1460-61
(11th Cir. 1990)(internal citations omitted); 29 C.F.R. 1614.105 (45-
day period). Accordingly, administrative exhaustion "is a condition
precedent to suit that functions like a statute of limitations . . ." Mos-
ley v. Pena, 100 F.3d 1515, 1518 (10th Cir. 1996); see also Holley
v. Dep’t of Veterans Affairs, 165 F.3d 244, 246 (3d Cir. 1999). In
determining the timeliness of Wilkinson’s counseling request, the
District Court excluded from consideration evidence that it deter-
mined was either not fairly raised by Wilkinson’s formal complaint
or happened earlier than 45 days before that request. (J.A. at 364-66
& n. 4.)
Under 29 C.F.R. § 1614.106(c), a complaint need only "sufficiently
. . . identify [the plaintiff] and the agency and . . . describe generally
WILKINSON v. RUMSFELD 5
the action(s) or practice(s) that form the basis of the complaint." Id.The January 17, 1997 complaint describes the September 30 conver-
sation with Britcher and an undated allegation that:
"Top Management [Frankie Brinkley] has informed her
directors and other supervisors that they are not to asso-
ciate[ ] or communicate with me. This is with the threat of
denied promotions. The known fear of retribution from
Frankie Brinkley, unfortunately continues to perpetuate this
behavior throughout OPLOC Norfolk. This pattern of con-
duct by Frankie Brinkley has continued to cause emotional
distress to me, having to work in a hostile environment, iso-
lated with fear of retaliation."
(J.A. at 127.)
This complaint adequately puts the agency on notice to investigate
more than the September 30 conversation; it references a "pattern of
conduct" that has created an isolating, hostile work environment. See
Stocke v. Marsh, 912 F.2d 381, 383 (9th Cir. 1990)(complaint suffi-
ciently stated discriminatory actions when it noted "complaints of
repeated unwanted verbal and physical sexual advances by" three
employees). The EEO investigator and the EEOC understood that
employee shunning was part of Wilkinson’s complaint. The report
regarding the EEO investigation states:
"The issue accepted for investigation is whether the Com-
plainant was discriminated against, by reason of her handi-
cap and as an act of reprisal, in that Ms. Frankie Brinkley
. . . advised her managers, supervisors and co-workers not
to associate with [Wilkinson], thus creating a hostile work
environment."
(J.A. at 237.)
The EEOC decision addressed both the shunning and the Septem-
ber 30 conversation. (J.A. at 328)(finding shunning incidents "trivial"
and unrelated to Wilkinson’s disability); (J.A. at 325)(September 30
meeting in which Brinkley told supervisors to avoid Wilkinson "could
6 WILKINSON v. RUMSFELD
not be substantiated"). Thus, the agency itself investigated the type of
activities that the District Court refused to consider. Id.Wilkinson stated that during the 45-day period before she sought
counseling "co-workers and supervisors continued to shun me on a
daily or near daily basis." (J.A. at 234, ¶ 12.) Further, Wilkinson indi-
cated that the incident in which 15 to 20 people left an area when she
arrived occurred within the 45-day period before she sought counsel-
ing. Id.National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115
(2002), noted that unlike other discriminatory practices, a hostile
environment claim involves one unlawful employment practice that
can be comprised of a series of separate incidents. Id. As long as one
component incident occurred within the applicable limitations period,
every component incident of the hostile environment may be consid-
ered for purposes of liability regardless of when those events
occurred. Id. at 117-18.1
There is evidence that the break-time, and other, shunning inci-
dents were components of one hostile environment that occurred
within the 45-day period prior to when Wilkinson sought EEO coun-
seling. (J.A. at 234, ¶ 12)(shunning incidents within 45-day period);
(J.A. at 284-85)(Saunders’ testimony that Brinkley told him, around
when he first started working for her, something to the effect of "Be
careful, watch out, [Wilkinson] can be troublesome and has some
mental problems"); (J.A. at 201-02) (Britcher’s testimony that when
she first started working for Brinkley, Brinkley told her to "keep an
eye on" Wilkinson who could be "negative"); (J.A. at 206) (Britcher
testifying that as a result of the warning, she "kind of stayed away
from" Wilkinson). Accordingly, the District Court erred when it
determined that Wilkinson had not sought EEO counseling within 45
days of an unlawful employment practice. (J.A. at 365-66.)
1
Employers are protected from unreasonably delayed hostile environ-
ment actions by equitable defenses such as waiver, estoppel, and laches.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002).
WILKINSON v. RUMSFELD 7
III.
In conclusion, we reverse the District Court’s grant of summary
judgment for the defendant because there is evidence that components
of a single hostile environment occurred within 45 days of the date
on which Wilkinson sought EEO counseling.
REVERSED AND REMANDED