* This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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) 

## F I L E D United States Court of Appeals Tenth Circuit 

### January 19, 2006

Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ AARON J. DOUGLAS, Plaintiff - Appellant,

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

____________________________ ORDER AND JUDGMENT *

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

The district court dismissed Aaron Douglas’ Title V II race discrimination complaint without prejudice for lack of subject mat ter jurisdiction based on his failure to exhaust administrative remedies. Dougla s appeals. Exercising jurisdiction under 28 U.S.C. § 1291, 1 we have wended our way through the(“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- procedural maze presented by the arguments. As wil l be evident, “arcane” understates the administrative process bearing on t he resolution of this matter. We will discuss the myriad arguments presented, butat 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 err or), 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 dis missal with prejudice. I. Factual Background Douglas, an African-American, holds a Master’s Degr ee in Forestry and a Ph.D. in Economics. In December 1986, he began wor king 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 tra nsferred to the Biological Resources Division of the U.S. Geological Survey, adivision of the Department
of Interior.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- Douglas is a member of the National Federation of F ederal Employees and is covered by a collective bargaining agreement. T he collective bargaining agreement sets forth a four-step grievance procedur e. 3 The agreement states such procedure is to be the exclusive method for resolvi ng employee grievances except “[a]n aggrieved employee affected by discrimination . . . may at his/her option raise the matter under a statutory appellate proced ure or the negotiated grievance procedure, but not both.” (R. App. at 92.) The co llective 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 pos ition 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 Rese arch Grade Evaluation Panel, consisting of five white males, an African-American male scientist and an African-American personnel specialist, rated Dougla s’ credentials pursuant to the Office of Personnel Management’s Research Grade Eva luation Guide. On or about August 19, 1999, the panel issued its finding s, recommending Douglas4 Douglas received official notice of the panel’s decision on September 26, 1999.
-4- remain at a GS-13. Douglas informally learned of t he 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 Emp loyment 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 eith er the EEO office or through the collective bargaining agreement’s grievance pro cedure. 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 reclassification based on his race. Specifically, he challenged the panel awarding him only twelve points (out of a possible twenty) f or his “Qualifications and Scientific Contributions” because he had not publis hed extensively in “first tier” economic journals. (Id. at 99-100.) Douglas claimed these “first tier” jo urnals predominately published the works of white authors. As a result, he suggested a three member panel of university professors judge h is 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 a chieving a “color blind rating process.” (Id. at 104.)-5-

Between September and November 1999, Douglas and th e 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 Gonzale z alleging the denial of his re-certification request constituted race discrimin ation. In this complaint, Douglas stated: As you [] recall, you recently checked the [collect ive 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 negotiate d grievance procedure as a venue for filing discrimination comp laints. . . . I have previously forwarded several written documents to y our office indicating the nature of the complaint and its rela tion to the [Research Grade Evaluation Panel’s] finding that pr omotion was not warranted on the basis of my research achievements. However, I had not formally stated that I wish to g o 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 w ith the [collective bargaining agreement’s] grievance proce dure. (Id. at 107 (emphasis added).) Thereafter, Douglas and the U.S. Geological Survey again attempted to settle the matter. On February 23, 2000, the Regio nal Director of the U.S. Geological Survey’s Biological Resources Division s ent Douglas a proposed settlement agreement. The agreement suggested, inter alia , that Douglas’ classification be re-reviewed by a new Research Gra de Evaluation Panel charged with concentrating on the scientific merits of Doug las’ publications and that-6-

Douglas be permitted to nominate at least one membe r of the new panel. Finding the proposed agreement unsatisfactory, Douglas file d a second grievance on March 3, 2000. In this grievance, he alleged the d ate of the incident as “February 23, 2000,” and asserted he was withdrawing his firs t grievance and filing the new grievance based on additional information he receiv ed, namely that a white economist in California had a higher grade level th an 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 Res earch 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 grieva nce, it alleged the U.S. Geological Survey’s rating-promotion process was ra cially prejudicial. Lamb also informed Douglas that complaints concerning the cla ssification of one’s position not resulting in a reduction in pay or grade were e xpressly excluded from the scope of the negotiated grievance procedure. He fu rther advised Douglas that classification decisions could be appealed by filin g an appeal directly with the Office of Personnel Management or by filing an appe al first with the U.S. Geological Survey and then with the Office of Perso nnel Management. Attached-7-

to Lamb’s response was information providing guidan ce on filing a classification appeal. On March 14, 2000, Douglas submitted a third grieva nce essentially reiterating the March 3, 2000 grievance. In this g rievance, Douglas claimed “all white economists who have a doctorate degree in eco nomics and have been fulltime federal employees of the U.S. Geological Surve y 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 Cen ter, issued a memorandum to Douglas interpreting Douglas’ March 14, 2000 grieva nce as an appeal of Lamb’s denial of his grievance. Posson affirmed the denia l, stating: I do not dispute your right to file a complaint inv olving discrimination using the negotiated grievance proce dure. I am rejecting your grievance on the basis that your new grievance is based on the same matter(s) as your original grieva nce, which was filed in an untimely manner and subsequently withdr awn. . . . Secondly, even if your grievance had been filed in a timely manner the remedy you are seeking involves a classificatio n process other than those allowed by [the Office of Personnel Mana gement] and . . . the classification of a position is not a grievable issue. (Id. at 141.) Posson also addressed Douglas’ concern t hat he was receiving different information about the time frames for fil ing an EEO complaint. Posson informed Douglas there was a clear distinction betw een the filing of a discrimination complaint with the EEO office and th e filing of a similar complaint under the collective bargaining agreement’s grievan ce procedure. Because Douglas had elected to proceed under the latter, Po sson advised Douglas that the5 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- time frames outlined in the negotiated grievance pr ocedure must be followed. Posson further advised Douglas that if he was not s atisfied with Posson’s decision, the union could request arbitration on hi s behalf. The next day, April 4, 2000, Douglas notified Posso n and Lamb that he wished to proceed to arbitration. In this notifica tion, Douglas expressed his disagreement with Posson and Lamb’s interpretation of the collective bargaining agreement. Specifically, he contended that althoug h complaints concerning one’s classification were excluded from the grievance pro cess, this exclusion did not apply to classification complaints alleging discrim ination. 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 Man agement to determine whether his position was appropriately classified. He alleged his position was under-classified and his position should be evaluat ed using the GS-110 Economist standard rather than the Research Grade Evaluation Guide. On October 30, 2000, the Office of Personnel Management issued its decis ion, agreeing with Douglas that his position should be evaluated under the GS- 110 Economist standard. Nevertheless, applying the GS-110 standard, the Off ice of Personnel Management decided Douglas’ position was properly classified a s a GS-13. On November 23, 2000, the arbitrator issued his dec ision, denying Douglas’-9-

grievance. The arbitrator concluded: Based on the provisions of the contract, the testim ony given at the hearing, and the arguments . . . of the parties, th e Arbitrator has concluded that the grievance involves matters that are outside of his authority.

. . . . It is clear that the Arbitrator does not have autho rity to decide a grievance involving “ the classification of any position that does not result in the reduction in pay or grade for the emp loyee ”. In this case [Douglas] seeks to have the Arbitrator reclass ify him to a higher rated job and to order that the employer give him b ackpay to 1991. [The negotiated grievance procedure] expressly proh ibits me from doing that. There is no exception for discriminati on cases. . . . Finally the fact that [Douglas] telephoned the Arbi trator on November 17 and informed him that [the Office of Pe rsonnel Management] had denied his appeal on the classifica tion matters is dispositive of this issue. It would be irresponsib le for me to order [Douglas] to be reclassified on this record based o n the dismissal of the appeal by [the Office of Personnel Management]. (Id. at 172-74.) The arbitrator’s decision did not con tain any notice of a right to appeal. Several months later, in March or April of 2001, Do uglas 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 thi s new information, in April 2001, Douglas visited Carlos Villescas, Deputy Regi onal Director of the Equal Employment Opportunity Commission (EEOC), to determ ine 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 compl aint. On May 23, 2001, Douglas contacted Ida Wilson, an EEO counselor. On June 25, 2001, Douglas-10-

followed-up this contact with a formal EEO complain t. It stated his claim was ongoing, with no date of origin. He further assert ed he was being treated differently than his white counterparts. In partic ular, 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 hi s rights under Title VII and sought back pay from January 1, 1992, alleging he h ad been performing at a GS15 level since that date. On November 8, 2001, the Department of Interior’s E EO office denied Douglas’ formal complaint. It concluded Douglas ha d elected to proceed under the negotiated grievance procedure and therefore he was precluded from filing an EEO complaint alleging the same matter. It also de termined his complaint was untimely, as he had waited six months to contact an EEO counselor after receiving the Office of Personnel Management and ar bitrator’s decisions. Douglas appealed this decision to the EEOC. On Jun e 3, 2002, the EEOC affirmed the EEO decision. The EEOC informed Dougl as 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 De partment of the Interior, in the United States District Court for the District o f Colorado. On September 6, 2002, Douglas, then represented by counsel, filed h is First Amended Complaint, alleging Norton denied him a promotion to a GS-15 b ased on his race in violation6 Pursuant to 28 U.S.C. § 636(c), both parties consented to the exercise of

jurisdiction by a magistrate judge.
-11- 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 negot iated grievance procedure but failed to exhaust his remedies under that proce dure because he did not appeal the arbitrator’s decision to the EEOC pursuant to 2 9 C.F.R. § 1614.401(d) (“A grievant may appeal the final decision of the agenc y [or] the arbitrator [to the EEOC] . . . when an issue of employment discriminat ion was raised in a negotiated grievance procedure that permits such is sues to be raised.”). Additionally, Norton asserted Douglas could not rel y on his June 26, 2001 EEO complaint because it was barred based on his electi on of the negotiated grievance procedure. On December 26, 2002, Douglas filed a r esponse, claiming he made a good-faith effort to exhaust his administrative rem edies in light of the faulty advice he received from the various agencies concer ning his rights. He also asserted he was not precluded from proceeding with his EEO complaint by his election of the negotiated grievance procedure beca use that election was not a “true election” as his claim was not covered by tha t procedure. (Id. at 256.) On July 11, 2003, the district court granted Norton ’s motion to dismiss and dismissed Douglas’ First Amended Complaint with pre judice. 6 The district court concluded Douglas had opted to pursue his discrimin ation claim under the negotiated grievance procedure and this election ba rred him from filing an EEO complaint concerning that same discrimination. Bec ause it was undisputed that7 While normally a party in a civil case has thirty days from the date the judgment

or order appealed from is entered, seeF ED . 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. F ED . R. APP . P. 4(a)(1)(B).

8 F ED . R. C IV . 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- Douglas had failed to exhaust his remedies under th e negotiated grievance procedure, the court determined it lacked jurisdict ion over Douglas’ Title VII complaint and dismissal was appropriate. In doing so, it declined to consider Douglas’ equitable arguments, finding waiver and es toppel were inapplicable because the exhaustion of administrative remedies r equirement is jurisdictional. The district court’s order was filed on July 14, 20 03. On September 12, 2003, Douglas filed a notice of ap peal. 7 On October 21, 2003, Douglas filed a motion for reconsideration wi th the district court pursuant to Rule 60(b)(6) of the Federal Rules of Civil Proc edure. 8 In this motion, Douglas argued (1) his “election” of the grievance procedure was a nullity as his-13-

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) h e 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 th at 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 erro neous advice; (5) his goodfaith efforts to exhaust his administrative remedie s were sufficient to confer jurisdiction on the court; and (6) the court’s dism issal should be without prejudice. On December 9, 2003, the district court granted Douglas’ motion in part, agreeing with Douglas that the dismissal of t he First Amended Complaint should be without prejudice; the court denied the r emainder 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 unde r 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 jur isdictional prerequisite to suit9 Although some of our sister circuits have interpreted Zipesto 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 Zipeshave recognized that the failure to timelyexhaust 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- in federal court, but a requirement that, like a st atute 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, al beit allegedly untimely, the district court erred in dismissing this case for la ck 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 c onsidered evidentiary materials outside of Douglas’ complaint, it should have treat ed Norton’s motion as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. 10[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- See F ED . R. C IV . P. 12(b). Nevertheless, our review remains de no vo. 11 Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1182 (10th Cir. 1995). Because exhaustion of administrative remedies is no t jurisdictional in this case, the district court also erred in refusing to consider Douglas’ equitable tolling arguments and in dismissing this case witho ut 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 dismissi ng 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 lacke d 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 jurisdictio n over Douglas’ complaint12 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- based on his failure to appeal the Office of Person nel Management’s October 30, 2000 decision to the Office of Special Counsel. Sh e asserts that although Douglas has always insisted his claim is a discrimi nation claim, the remedy he seeks—back pay from 1992 to 2000—requires re-classi fication. Therefore, Norton contends Douglas was required to exhaust his classification remedies, which included appealing the Office of Personnel Ma nagement’s decision to the Office of Special Counsel. While we normally decli ne to address arguments raised for the first time on appeal, we address thi s 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 i s 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 [o f 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, case s from other circuits have concluded that a federal employee may seek investigatory review of13 Indeed, if Douglas were to succeed on his Title VII claim, the court could order

his promotion to a GS-15 with or without back pay, assuming Douglas would have been promoted but for the unlawful discrimination. See42 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- an Office of Personnel Management’s classification decision with the Office of Special Counsel and if the Office of Special Counse l 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 thathis claim is a race discrimination claim. So, the mere fact that the r emedy 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 d eprive the district court of-18-

jurisdiction. B. Failure to Exhaust Administrative Remedies Douglas argues the district court erred in dismissi ng 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, s ubmitting an EEO complaint on June 25, 2001, and receiving a right to sue lett er on June 3, 2003; (3) equitable tolling of the time limits for filing an EEO compla int applies because he was actively misled regarding his rights; and (4) his g ood faith effort to exhaust his administrative remedies was sufficient to confer ju risdiction on the district court. Norton argues Douglas elected the grievance procedu re and failed to exhaust his administrative remedies under that proc edure 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 a nd April 2000 that his complaint was not cognizable under it. Normally, a Title VII plaintiff satisfies the exhau stion 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 u nion covered under the Federal Labor-Management Relations Act (FLMRA), 5 U .S.C. §§ 7101-35,-19-

special rules apply. The FLMRA requires collective bargaining agreements between a union and federal agency employer to prov ide 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 with in its coverage.” Id. One exception to this general rule is contained in § 71 21(d), which states: An aggrieved employee affected by a prohibited pers onnel practice under [5 U.S.C. § 2302(b)(1)—prohibited discriminat ion] which also falls under the coverage of the negotiated grievanc e procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. Section 2302(b)(1) of Title 5 prohibits discriminat ion based on race, color, religion, sex or national origin in certain personn el 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). Ther efore, an employee who alleges he is the victim of race discrimination may elect to p roceed under either the negotiated grievance procedure or the statutory pro cedure, but not both. Once an employee elects a certain procedure, it is irrevoca ble 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 proc edure . . . .” 5 U.S.C. § 7121(d). Here, § 7121(c)(5) and the collective bar gaining agreement expressly14Under 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- exclude from the scope of the grievance procedure a ny complaint concerning the classification of a position which does not result in the reduction in grade or pay of the employee. Consequently, because Douglas’ di scrimination complaint involved the classification of his position which d id 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 underthe EEO statutory procedure. However, it is undisputed that Douglas elected the negotiated grievance procedure. 14 Hence, our dilemma—what effect does Douglas’ elec tion to proceed under the negotiated grievance procedure have on th e exhaustion of administrative remedies requirement where such elec tion was unavailable to him? We have unearthed no federal case law directly on p oint. However, in Chai v.-21-

Goldin , the EEOC encountered a similar factual scenario. No. 05970016, 1998 WL 422036 (E.E.O.C. July 10, 1998). There, the emp loyee initially filed a complaint under the applicable grievance procedure alleging he was denied a position based on his race and national origin. Hi s grievance was ultimately denied by the arbitrator as nongrievable. A month later, the employee contacted an EEO counselor concerning the same alleged discri mination. He subsequently filed a formal EEO complaint with the EEOC. The EE OC denied the complaint based on the employee’s untimely contact with the c ounselor and his previous election to proceed via the grievance procedure. T he 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 proc ess. Id. at *2. In response to the employer’s argument that the employee should ha ve known his complaint was nongrievable because the employer informed him so d uring arbitration, the EEOC stated:If we were to deny [the employee’s] right to procee d through the EEO process based solely on the argument that [the employee] should have known his [complaint] was ungrievable m erely because the agency told him so, we would effectively be lim iting [the employee’s] right to elect between the grievance an d EEO procedures based upon the agency’s positions concerning the gr ievability of particular issues. Such a limitation would clearly produce untenable results and thus we decline to impose it in this ca se. Id. at *3. The EEOC further determined that the invalidity of the employee’s election of the grievance procedure presented a sufficient b asis for tolling the time period15We 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- for initiating the EEO procedure from the date of t he 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 nongrievab le prior to arbitration had on Douglas’ decision to continue with the grievance pr ocedure. 15 Even assuming we disregard Douglas’ “election” of the grievance proc edure, and toll the time limits for Douglas to have initiated contact with an EEO c ounselor until the date of the arbitrator’s decision on November 23, 2000, we stil l conclude Douglas failed to timely exhaust his administrative remedies. The EEO procedure required Douglas to initiate cont act 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 th e date of the arbitrator’s decision, Douglas had until January 8, 2001, in whi ch to contact an EEO counselor. He did not do so until May 23, 2001. W hile the forty-five day time limit for initiating contact with a counselor may b e extended in certain16 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- circumstances, 16 none of these circumstances are present here. Nordo we discern anything in the record excusing Douglas from initiating such contact within fortyfive days. Therefore, Chai , even if applicable, is distinguishable. There, t he employee initiated the EEO process within forty-fiv e 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 notinitiate contact with EEO counselor within forty-five days of learning her cl aim was nongrievable). Douglas attempts to avoid this result by relying on his initial contact with an EEO counselor in September 1999. He claims thatbecause that contact occurred within forty-five days of the date of the Research Grade Evaluation Panel’s denial of his re-classification request, th is contact, combined with his June 25, 2001 complaint, satisfies the exhaustion r equirement. This argument is unavailing. Although Douglas engaged in the pre-co mplaint EEO process in September 1999, he abandoned that process in favor of the grievance procedure. Even assuming the September 1999 contact constitute d the requisite pre--24-

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 form al complaint after initiating contact with EEO counselor). Douglas also claims his June 25, 2001 complaint was timely under the continuing violation doctrine. Specifically, he ar gues that because discrimination in pay due to failure to promote is an ongoing viol ation, 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 he ld that when an employee is the victim of a discrete act of discrimination—such as discharge, failure to promote, denial of transfer o r 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 ac t 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 limit ations period, even if sufficiently related to those acts occurring within the limitati ons period.” Davidson v. Am. Online, Inc. , 337 F.3d 1179, 1185 (10th Cir. 2003). Here, Doug las’ complaint alleged a discrete act of discrimination, the denia l of his request for re-17Douglas’ 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 Morganand 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 Bazemoreand 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- classification. 17 Therefore, the date the Research Grade Evaluation Panel denied his re-classification request (or considering equit able tolling, the date Douglas received the arbitrator’s decision) started the clo ck for filing a complaint with the-26-

EEOC, not each new paycheck. Lastly, Douglas asserts that even if he did not tim ely exhaust his administrative remedies under the EEO procedure, hi s good faith efforts to exhaust and to cooperate with the U.S. Geological S urvey, the Department of Interior and the EEOC satisfy the exhaustion requir ement. “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 sec uring voluntary compliance.” Woodman v. Runyon , 132 F.3d 1330, 1342 (10th Cir. 1997). Consistentwith these purposes, a “[g]ood faith effort by the emplo yee to cooperate with the agency and the EEOC and to provide all relevant, av ailable information is all that exhaustion requires.” Khader , 1 F.3d at 971(quotations omitted). Conversely, when an employee refuses or fails to provide the ag ency 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 ca nnot be deemed to have exhausted his administrative remedies. Id. While Douglas’ actions from September 1999 through the arbitrator’s decision may have constituted a goodfaith effort to exhaust, especially considering the morass of statutes and regulations involved, such efforts do not excuse th e 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 Dougla s’ First Amended Complaint was proper due to his failure to timely e xhaust his administrative-27-

remedies. V. Conclusion REMANDED for dismissal with prejudice. Entered by the Court:
Terrence L. O’Brien United States Circuit JudgeAddendum A - Administrative Time Line

-28- June 1999 Douglas requests re-classification of his position. August 1999 Research Grade Evaluation Panel denies D ouglas’

request. September 1, 1999 Douglas contacts USGS EEO office. September 9, 1999 Douglas writes memo to USGS EEO of fice claiming the failure to reclassify his position was race based. Sept. - Nov. 1999 Settlement negotiations (unsuccess ful). November 22, 1999 Mediation (unsuccessful). November 29, 1999 Douglas files formal complaint wit h USGS EEO office

electing CBA grievance procedure. Nov. 1999 - Mar. 2000 More settlement negotiations (unsuccessful).
March 3, 2000 Douglas files 2nd grievance (stating 1 st grievance was

withdrawn and supplanted by 2nd grievance, which contained new information). March 13, 2000 Lamb, Douglas’ supervisor, denies gri evance 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 addi tional information. April 3, 2000 Posson, office director, treats 3rd gr ievance as an appeal

from Lamb’s Mar. 13, 2000 decision, affirms Lamb’s decision and again advises Douglas the matter is no t a proper subject of a CBA grievance. April 4, 2000 Douglas requests arbitration (under th e CBA grievance

procedure).Addendum A - Administrative Time Line

-29- 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’ form al complaint. June 3, 2002 EEOC affirms decision of DOI EEO office and issues

“right to sue” letter.