Vickey Kraus is a female African-American lesbian, who suffers from dyslexia, depression, a back injury with sciatica, and a brain injury from lead poisoning. ?She worked for a federal agency for 11 years.?? During her employment she filed two EEO complaints.? ?She lost before an ALJ and ?filed? a? complaint ?in ?federal ?district ?court. The District Court dismissed some claims for failure to exhaust and the rest for other reasons. The District Court held that Ms. Kaus had failed to contact a ?counselor? within 45 days of the alleged unlawful actions, as EEOC regulations require.
On appeal, the Ninth Circuit held that the exhaustion ruling was error. ?Although Kaus had not contacted the agency?s counselor, she had contacted her agency?s EEO officer within 45 days. ?The appellate court held that contacting an EEO officer was tantamount to contacting a counselor because that official was ?logically connected with the EEO process.??? The panel remanded?? for?? a?? determination?? whether?? the plaintiff had contacted the EEO officer with the intent to begin the EEO process.
Kraus????? ?v.????? ?Presidio????? ?Trust????? ?Facilities?Division/Residential ?Management ?Branch, ?572 F.3d 1039 (9th Cir. July 23, 2009) (Berzon, D.W. Nelson, Clifton).