UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DESIREE WILKINSON, 

Plaintiff-Appellant,

v.  No. 03-1808 DONALD H. RUMSFELD, Secretary,

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Reversed and remanded by unpublished opinion.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:
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Unpublished opinions are not binding precedent in this circuit.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 environment 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 facility; the event caused her severe depression, panic attacks, and posttraumatic 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 considered for promotion if he continued to associate with Wilkinson. (J.A.

at 262-63.) 

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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 Wilkinson feeling depressed, shunned, and isolated. Id. One of Wilkinson’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 coworkers 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 differently 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 matter 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 summary 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.

WILKINSON v. RUMSFELD 3
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 Recreation 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 Matsushita 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 . . ." Mosley 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 determined 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

4 WILKINSON v. RUMSFELD
the action(s) or practice(s) that form the basis of the complaint." Id.

The January 17, 1997 complaint describes the September 30 conversation with Britcher and an undated allegation that:

"Top Management [Frankie Brinkley] has informed her

directors and other supervisors that they are not to associate[ ] 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 conduct by Frankie Brinkley has continued to cause emotional

distress to me, having to work in a hostile environment, isolated 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 sufficiently 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 Complainant was discriminated against, by reason of her handicap 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 September 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

WILKINSON v. RUMSFELD 5
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 indicated that the incident in which 15 to 20 people left an area when she

arrived occurred within the 45-day period before she sought counseling. 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 considered 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 incidents were components of one hostile environment that occurred

within the 45-day period prior to when Wilkinson sought EEO counseling. (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.) 

1Employers are protected from unreasonably delayed hostile environment actions by equitable defenses such as waiver, estoppel, and laches.

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22 (2002).

6 WILKINSON v. RUMSFELD
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

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