1 Ed Schafer succeeded Mike Johanns as Secretary of the United States Department of Agriculture on January 28, 2008, and is automatically substituted as appellee under Federal Rule of Appellate Procedure 43(c)(2). 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________ No. 07-3824

________________ Devonna Culpepper, Appellant,

v. Ed Schafer, 1 Secretary, United States Department of Agriculture, Appellee. *
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* Appeal from the United States District Court for the Eastern District of Arkansas.

________________ Submitted: September 26, 2008 Filed: December 1, 2008

________________ Before WOLLMAN, SMITH and GRUENDER, Circuit Judges.

________________ GRUENDER, Circuit Judge. 1

Devonna Culpepper brought this action ag ainst the Secretary of the United States Department of Agriculture (“USDA” ), alleging that the USDA discriminated against her because she is disabled and re taliated against her fo r engaging in protected-2- conduct. The district court granted the USDA’s motion for summary judgment. Culpepper appeals, and for the following reasons, we reverse.

I. BACKGROUND

Culpepper’s hearing has been profoundl y impaired for her entire adult life. Culpepper is employed by the USDA’s Rural Development Offices for the State of Arkansas, where she has workedfor nearly thirty years. During that time, Culpepper has filed at least two other equal employment opportunity (“EEO”) complaints against the USDA, both of which were eventually settled.

On or about January 17, 2005, Culpepper sent a letter to th e Director of the USDA’s Office of Civil Rights in which she alleged that the USDA violated federal laws against disability discrimination and re taliation. One of Culpepper’s allegations related to the USDA’s treatment of her app lication for a merit-based promotion to the position of “Purchasing Agent.” An instru ction appearing at the top of the USDA’s job posting for that position stated: “To f ile a complaint of discrimination, write USDA, Director, Office of Civil Ri ghts . . . or call [listed voice and telecommunications device for the deaf (“ TDD”) number].” In her letter to the Director, Culpepper declar ed, among other things: “Due to the nature of my complaint and previous complaints, I would request that the informal phase be waived and the formal phase begins [sic] with this complaint and supporting documentation. If not, consider this my official contact to begin the process.” Although Culpepper produced a signed return receipt showing that the USDA received her letter on January 21, 2005, the USDA ne ver responded to the letter.

On February 6, 2006, Culpepper filed this suit in the United States District Court for the Eastern District of Arkans as. The proceedings were delayed because Culpepper failed to serve her complaint on the United States Attorney.-3- On June 1, 2006, Culpepper sent a sec ond letter to the Director of the USDA’s Office of Civil Rights in which she allege d that the USDA again violated federal disability discrimination and retaliation laws. Culpepper’s principal allegation related to the USDA’s treatment of her application for a merit-based promotion to the position of “Loan Specialist.” An in struction appearing at the top of the USDA’s job posting for that position stated: “To file a comp laint of discrimination, write to USDA, Director, Office of Civil Rights . . . or call [listed voice and TDD numbers].” Culpepper’s letter again stated: “Due to the nature of my complaint and previous complaints, I would request that the inform al phase be waived and the formal phase begins [sic] with this complaint and s upporting documentation. If not, consider this my official contact to begin the process. ” Culpepper produced a signed return receipt showing that the USDA received her second letter on June 2, 2006, but the USDA again failed to respond.

Culpepper sent two more letters to the Director of the USDA’s Office of Civil Rights. In her third letter, dated Oc tober 18, 2006, Culpe pper referred to the allegations made in her January 2005 “complaint,” notified the USDA that she had filed this “civil action,” and requested a “fin al agency decision.” In her fourth letter, dated November 29, 2006, Culp epper referred to the alle gations made in her June 2006 “complaint” and again requested a “final agency decision.”

The Director of the USDA’s Office of Civil Rights responded to Culpepper’s requests for final agency action in a le tter dated December 11, 2006. While the Director acknowledged that the Office of Civil Rights had received Culpepper’s October 18 and November 29 letters, she reported that her office had no record of Culpepper’s January 2005 and J une 2006 complaints. The Dir ector further stated that Culpepper’s filing of a lawsuit in federal court “divests th is office of jurisdiction over the issues raised in the civil action.” Fi nally, the Director advised Culpepper that if she wished to bring an EEO complaint, she must “initiate contact with an EEO Counselor within 45 days of the date of th e matter alleged to be discriminatory or, in-4- the case of personnel action, w ithin 45 days of the effectiv e date of the action.” The USDA did not issue a final agency decision.

On March 2, 2007, Culpepper filed an amended complaint in this action. The USDA moved to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment. The USDA argued that Culpepper failed to exhaust her administrative remedies because she did not comply with 29 C.F.R. § 1614.105(a), a regulation that establishes mandatory “p re-complaint processing” for federal employees who seek to bring employment discrimination claims. The USDA asserted that Culpepper did not “initiate contact” withan EEO counselor within 45 days of the alleged acts of discriminati on as § 1614.105(a) requires.

The district court decided that exhaustion of administrative remedies was not a jurisdictional requirement and that the parties had relied on matters beyond the face of the pleadings in litigating the USDA’s mo tion. Accordingly, the court considered the exhaustion issue under the standard governing a motion for summary judgment. The court found that Culpepper’s previous EEO complaints, along with her written requests to waive the “informal phase,” demonstrated that Culpepper was aware of the EEO counseling process. Holding that Cu lpepper’s “administrative complaints” to the Director of the USDA’s Office of Civ il Rights did not satisfy the EEO counselor contact requirement under § 1614.105(a), the court granted the USDA’s motion for summary judgment. Culpepper appeals, ar guing that she exhausted her administrative remedies by contacting the Director of the USDA’s Office of Civil Rights.

II. DISCUSSION

Summary judgment is appropriate where the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to judgm ent as a matter of law. Fed. R. Civ. P.-5- 56(c); Burkett v. Glickman , 327 F.3d 658, 660 (8th Cir. 2003). We review de novo a district court’s decision to grant summary judgment. Bailey v. USPS , 208 F.3d 652, 654 (8th Cir. 2000).

The district court accepted the USDA’ s argument that Culpepper failed to exhaust her administrative remedies becauseshe did not comply with 29 C.F.R. § 1614.105(a). That regulation provides, in pertinent part, that “[a]ggrieved persons who believe they have been discriminated against on the basis of . . . handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. § 1614.1 05(a). Moreover, “[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel ac tion, within 45 days of the effective date of the action.” Id. § 1614.105(a)(1). Although the regul ation does not define the term “initiate contact,” the Equal Employmen t Opportunity Commission has consistently held that “a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhib iting an intent to begin the EEO process.” E.E.O.C. Management Directive 110, at ch. 2, § I.A, n.1 (Nov. 9, 1999) (citing Kinan v. Cohen , E.E.O.C. Dec. 05990249, 1999 WL 320546 (May 6, 1999); Floyd v. Temple , E.E.O.C. Dec. 05890086, 1989 WL 1006770 (June 22, 1989)); see also, e.g. , Osuagwu v. Peake , E.E.O.C. Dec. 0120081307, 2008 WL 2264405 (May 20, 2008) (same); Thompson v. Chertoff , E.E.O.C. Dec. 0120080545, 2008 WL 382208 (Feb. 4, 2008) (same).

The EEOC’s interpretation of § 1614.105(a) is relevant because an agency’s interpretation of its own regulation is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’” Auer v. Robbins , 519 U.S. 452, 461 (1997) (quoting Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 359 (1989)). Thus, we held in Nygren v. Ashcroft , 109 Fed. Appx. 816 (8th Cir. 2004) (unpublished per curiam), that the EEOC’s interpretation of § 1614.105(a) is entitled to deference under-6- Auer

. Id. at 819. Other courts consideri ng § 1614.105(a) have likewise deferred to the EEOC’s interpretation. See, e.g. , Johnson v. Cohen , 6 Fed. Appx. 308, 311 (6th Cir. 2001) (unpublished per curiam) (holdi ng that the EEOC’s interpretation “is not plainly erroneous or inconsis tent with the regulation”); Klugel v. Small , 519 F. Supp. 2d 66, 71–72 (D.D.C. 2007) (adopting the EEOC’ s interpretation and collecting cases in which federal courts reached the same result). While the US DA correctly notes that we are free to reject an agency’s inte rpretation of its own regulation if that interpretation is “plainly erroneous” or “inconsistent w ith the regulation,” it does not affirmatively argue that we should reject the EEOC’s interpretation of § 1614.105(a). Because we do not independently discern any reason to depart from our holding in Nygren or the consensus opinion of the other courts that have considered this issue, we conclude that the EEOC’s interpretati on of § 1614.105(a) controls our analysis in this case.

The district court cited our decision in Nygren for the proposition that an employee “initiates contact” within the meaning of § 1614.105(a) by “contact[ing] an agency official logically connected to the EEO process and exhib it[ing] an intent to begin the EEO process.” However, the court granted the USDA’s motion for summary judgment based on its determinati on that Culpepper did not contact an EEO counselor. The USDA asks us to affirm the district court’s grant of summary judgment, contending that Culpepper cannot prevail because she never contacted an EEO counselor to begin “the informal [EEO] process.”

Given the EEOC’s interpretation of § 1614.105(a), the dispositive question is not whether Culpepper contacted an EEO counselor—she did not. Instead, the question is whether Culpepper’s letters to the Director of the USDA’s Office of Civil Rights in January 2005 and June 2006 satisfied the EEO counselor contact requirement even though she did not contact an EEO counselor. Applying the EEOC’s interpretation of § 1614.105(a) to the facts of this case, we hold that Culpepper’s letters (1) initiated contact w ith an agency official who is logically2 For present purposes, we assume that Cu lpepper’s letters we re actually sent to and received by the Director. See, e.g. , Gretillat v. Care Initiatives , 481 F.3d 649, 652 (8th Cir. 2007) (“[W]e view the facts in th e light most favorable to the . . . party [opposing a motion for summary judgment] . . . .).
-7- connected with the EEO process and (2) dem onstrated Culpepper’s intent to begin the EEO process. 2

First, as the EEOC has held, the director of an agency’s office of civil rights is logically connected withthe EEO process. Duke v. Slater , E.E.O.C. Dec. 01A02129, 2000 WL 732027, at *1 (May 22, 2000) (“Clearly, the Director of the agency’s Office of Civil Rights is logically connected to th e EEO process.”). I ndeed, we cannot think of an official in the USDA—except for an EEO counselor—who is more closely connected with the EEO process than the Director of the USDA’s Office of Civil Rights.

Second, Culpepper’s letters announced in unequivocal terms her intent to begin the EEO process. Both of Culpepper’s le tters included the statement: “Due to the nature of my complaint and previous comp laints, I would request that the informal phase be waived and the formal phase begi ns [sic] with this complaint and supporting documentation. If not, consider this my official contact to begin the process .” (Emphasis added.) Culpepper’s statemen t was sufficient to put the USDA on notice that she intended to begin the EEO process. See Hunnicutt v. Dalton , E.E.O.C. Dec. 01966613, 1997 WL 420011, at *2 (July 23, 1997).

The USDA argues that Culpepper’s prev ious EEO complaints and her written requests to waive the “informal phase” prove that she was aware of the EEO counselor contact requirement but chose not to comp ly with it. The EEOC has made it clear, however, that an aggrieved person’s “contact with an agency offi cial who [is] not an EEO Counselor, but who [is] ‘logically conn ected with the EEO process,’ [can be] sufficient to constitute EEO contact, notwith standing the fact that [the] complainant3 As a result, we need not consider whether the instructions appearing at the top of the USDA’s job postings might excusean employee’s noncompliance with § 1614.105(a) under the doctrines of equ itable estoppel or equitable tolling.
-8- apparently [is] aware of the EEO process.” Hernandez v. Runyon , E.E.O.C. Dec. 01972231, 1998 WL 156079, at *2 (Mar. 31, 1998). Thus, under the EEOC’s interpretation of § 1614.105(a), Culpepper’s knowledge of the EEO process and her misguided request to waive the “informal phase” are irrelevant so long as she contacted a USDA official who is logically connected with the EEO process and exhibited an intent to begin that process. We are convinced that Culpepper’s letters to the Director of the USDA’s Office of Civil Rights satisfied that requirement. 3

Our decision in Bailey v. USPS , 208 F.3d 652 (8th Cir. 2000), is not to the contrary. In Bailey , we held that an aggrieved employee failed to exhaust her administrative remedies even though she communicated with EEO counselors within the 45-day limitations period. Id. at 654. Unlike Culpepper, the aggrieved employee in Bailey “waived the argument that her initial communications with . . . EEO counselors complied with section 1614.105(a).” Id. at 655 (referring to evidence in the record that the aggrieved employee “e xplicitly disavowed any intent to request EEO counseling” during her preliminary conversations with EEO counselors). Culpepper has not only preserved the argument, she has supplied documentary evidence proving that she cont acted the Director of the USDA’s Office of Civil Rights and announced her intent to begin the EEO process.

In summary, we hold that Culpepper’s letters to the Director of the USDA’s Office of Civil Rights satisfied the EEO counselor contact requirement under § 1614.105(a) because they initiated contact with a USDA official who is logically4 The parties have not meaningfully addressed the question whether Culpepper’s letters were submitted withinthe 45-day limitations period, and we do not decide that issue.
-9- connected with the EEO process and exhib ited the requisite intent to begin the process. 4

III. CONCLUSION

For the foregoing reasons, we reverse th e judgment of the district court and remand the case for further proceedings consistent with this opinion.

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