Young v. National Center for Health Services Research Petition for Writ of Certiorari

    no  &1-/Q/G

fV f% \>^ U

IN THE

Supreme Court Of The United States

October Term, 1989

LIH Y. YOUNG,
Petitioner,

v.

NATIONAL CENTER FOR HEALTH  
SERVICES RESEARCH,

Respondent.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

R E C E I V E D
h a n d  d e l i v e r e d

,
I.J l .  V./ 2 7 1939

OFFICE OF THE CLERK 
SUPREME COURT, Li.S.

Robert B. Fitzpatrick
(Counsel of Record)

Mark D. Laponsky
FITZPATRICK & VERSTEGEN 
Spring Valley Center 
Suite 400
4801 Massachusetts Avenue, N.W. 
Washington, D.C. 20016
(202) 364-8710 
Counsel for Petitioner

Baimar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610



i
QUESTIONS PRESENTED

1. Can an amendment to a complaint 
changing the name of the defendant 
relate back to the original filing where 

equitable reasons exist to extend the 

applicable statute of limitations?

2. Is the Secretary of a cabinet 
level department of the federal 
government the only appropriate 

defendant in an action under Title VII 
of the Civil Rights Act of 1964, as 

amended, filed by an employee of such a 
department?



PARTIES TO THE PROCEEDINGS
The parties to this petition are 

the same as the parties to the appeal 

and civil action below, as reflected in 

the caption. However, this case reaches 

this Court, in part, on petitioner's 

effort to add the Secretary of the 

Department of Health and Human Services

11

as a defendant.



Ill

TABLE OF CONTENTS

QUESTION PRESENTED ............. i

PARTIES TO THE PROCEEDINGS ....  ii

TABLE OF AUTHORITIES ........... iv
OPINIONS B E L O W ................ . 1

JURISDICTION...... ............  2

STATUTORY PROVISIONS AND
RULES ........................... 3

STATEMENT OF THE CASE .........  4

Page

REASONS FOR GRANTING THE PETITION:

I. A CONFLICT EXISTS AMONG THE 
CIRCUITS ON WHETHER OR NOT 
THE THIRTY DAY STATUTE OF 
LIMITATIONS OF 42 U.S.C. SEC. 
2000e-16(c) MAY BE EXTENDED 
FOR EQUITABLE REASONS SO AS 
TO PERMIT AN AMENDMENT CHANG­
ING THE NAME OF THE DEFENDANT 
TO RELATE BACK UNDER RULE 
15(C) ....................... 10

II. THIS COURT'S REVIEW IS NECES­
SARY TO END CONFUSION AMONG 
LOWER COURTS AND LITIGANTS 
INTERPRETING 42 U.S.C. SEC.
2 000e-16(c).................. 21

CONCLUSION 29



iv

TABLE OF AUTHORITIES

Page
Cases:

Baldwin County Welcome Center 
V .  Brown, 466 U.S. 147 (1984) 
.............................. 13, 74, 75

Beasley v. Griffin, 427 F.Supp. 801,
803 (D.Mass. 1977) .............  28

Bell v. Veterans Administration 
Hospital, 826 F.2d 357
(5th Cir. 1988) .................... . 19

Boddy v. Dean, 821 F.2d 346 (6th Cir. 
1987) .................... 13, 18

Cooper v. United States Postal 
Service, 740 F.2d 714 (9th Cir.
1984), cert, denied, 471 U.S. 1022 
(1985) . . . . . . . . . . . . . . .  20

Gardner v. Gartman, 880 F.2d 797,
799 (4th cir. 1989).................  25
Guilday v. Department of Justice,
451 F.Supp. 717, 726 (D.Del. 1978). . 27

Hancock v. Egger, 848 F.2d 87
(6th Cir. 1988). ...................... 25

Harris v. Department of 
Transportation, 843 F.2d 219,
220 (5th Cir. 1988). . . . . . . . .  .27

Hernandez v. Aldridge, 866 F.2d 800 
(5th Cir. 1989)........ .. .19, 20



V

Cases:
Page

Hornsby v. United States Postal
Service,787 F.2d 87 (3rd Cir.
(1986) ..........................13, 18

I.M.A.G.E. v. Bailar, 78 F.R.D. 549 
(N.D. Cal. 1 9 7 8 ) ...................  27

Jones v. United States, 376 F. Supp.
13, 14 n. 3 (D.D.C. 1974) ...........  28

Lamb v. United States Postal Service,
852 F.2d 845 (5th Cir. 1988) . . . .  19
Mahoney v. United States Postal 
Service, 884 F.2d 1194
(9th Cir. 1 9 8 9 ) .....................  19

Martinez v. Orr, 738 F.2d 1107
(10th Cir. 1984) ...............  13, 19

Milam v. United States Postal 
Service, 674 F.2d 860 (11th Cir.
1 9 8 2 ) ............................13, 19
Mondy v. Secretary of the Army,
845 F .2d 1051 (D.C. Cir. 1988)
............................ 11, 13, 14,

18, 24
Mosley v. United States, 425
F. Supp. 50, 55 (N.D. Cal. 1977) . . .28

Paulk v. Department of the Air Force,
830 F .2d 79 (7th Cir. 1987) . . . .  12,

19, 26



V

Rys v. United States Postal Service,
702 F.Supp. 945 (D.Mass. 1989) . . .  17

Schenk v. Pyles, 17 FEP Cases (BNA)
1469 (D.D.C. 1 9 7 6 ) ..............   . .28

Shiavone v. Fortune, 477 U.S. 21 
(1986) . . . . . . . . . . . . . . .  .17

Stephenson v. Simon, 427
F. Supp. 467 (D.D.C. 1976) . . . . .  .23
Stuckett v. United States Postal 
Service, 469 U.S. 898 (1984) . . . .  .20

Warren v. Department of the Army,
867 F.2d 1156 (8th Cir. 1989)
. . ........... .. 11, 13,

15, 18

Williams v. United States Postal 
Service, 873 F.2d 1069
(7th cir. 1 9 8 9 ) ........  12, 15, 19, 26



vi

Page

Statutory Provisions and Rules:
42 U.S.C.Sec. 2000e-5(f) (1) ........ 13

42 U.S.C. Sec. 2000e-16(c) . . . .passim

Fed.R.Civ.P.15(c)...........12, 14, 15
17, 21

29 C.F.P. § 1613.214.............5, 6



OPINIONS BELOW

The opinion from which review is 
sought, Young v. National Center for 

Health Services Research. No. 88-1017, 

(4th Cir. September 27, 1989), is 
unpublished. It is reproduced at pages 

32a-42a of the Appendix hereto. The 

district court opinion is reported at 
704 F. Supp. 88 (D. Md. 1988) and is 

reproduced at pages 43a-53a of the 

Appendix hereto.

A previous opinion of the Court of 
Appeals for the Fourth Circuit in this 
matter is reported at 828 F. 2d 235 (4th 

Cir. 1987) and is reproduced at pages 
54a-66a of the Appendix hereto. The 

edited transcript of the opinion of the 

magistrate, dated March 7, 1986, is 

unreported and is reproduced at pages 

67a-84a of the Appendix hereto. The 
final decision of the Equal Employment



2

Opportunity Commission, dated May 3,
1985 (Appeal No. 01842738), on 

petitioner's administrative appeal from 

the decision of the Department of Health 

and Human Services is unreported and 

reproduced at pages 85a-95a of the 

Appendix hereto. The final decision of 
the Department of Health and Human 

Services, dated August 20, 1984, on 

petitioner's administrative complaint of 

employment discrimination (File No. ASH- 
401-84) is unreported and is reproduced 
at pages 96a-106a of the Appendix 
hereto.

JURISDICTION
The Fourth Circuit Court of Appeals 

decided this case and entered judgment 
on September 27, 1989.

This Court's jurisdiction arised



3
pursuant to 28 U.S.C. Sec. 1254(1).

STATUTORY PROVISIONS AND RULES
This action is based on Title VII 

of the Civil Rights Act of 1964, as 

amended, which provides in pertinent 

part:

Section 2000e-16(c) [Sec. 717(c)]:
Within thirty days of receipt of notice 
of final action taken by a department, 
agency, or unit referred to in 
subsection 717(a), or by the Civil 
Service Commission upon an appeal from a 
decision or order of such department, 
agency or unit on a complaint of 
discrimination based on race, color, 
religion, sex or national origin, 
brought pursuant to subsection (a) of 
this section, Executive Order 11478 or 
any succeeding Executive orders, or 
after one hundred eighty days from the 
filing of the initial charge with the 
department, agency or unit or with the 
Civil Service Commission on appeal from 
a decision or order of such department, 
agency or unit, an employee or applicant 
for employment, if aggrieved by the 
final disposition of his complaint, or 
by the failure to take final action on 
his complaint, may file a civil action 
as provided in section 706, in which 
civil action the head of the department, 
agency, or unit, as appropriate, shall 
be the defendant.



4

The Federal Rule of Civil Procedure
involved in this case is Rule 15, which
provides in pertinent part:

(c) Relation Back of Amendments.
Whenever the claim or defense assserted 
in the amended pleading arose out of the 
same transaction, or occurrence set 
forth or attempted to be set forth in 
the original pleading, the amendment 
relates back to the date of the original 
pleading. An amendment changing the 
party against whom a claim is asserted 
relates back if the foregoing provision 
is satisfied and, within the period 
provided by law for commencing the 
action against the party to be brought 
in by amendment, that party (1) has 
received such notice of the institution 
of the action that the party will not be 
prejudiced in maintaining a defense on 
the merits, and (2) knew or should have 
known that but for a mistake concerning 
the identity of the proper party, the 
action would have been brought against 
the party.

STATEMENT OF THE CASE
Petitioner was employed by the 

National Center for Health Services 

Research (hereinafter "National Center),



5

a unit of the Department of Health and 

Human Services. In March, 1984, she 

resigned from her employment. At the 

time she resigned, Mr. John Marshall was 

the Director of the National Center.

Within thirty (30) days after she 

resigned her employment, petitioner 

contacted an Equal Employment 

Opportunity (EEO) Counselor to complain 
about the discriminatory treatment she 

received as an employee, claiming that 

it compelled her to resign. Petitioner 
filed an administrative complaint 

claiming employment discrimination in 
accordance with 29 C.F.R. Sec. 1613.214. 

The Department of Health and Human 

Services rejected the complaint as 

untimely, concluding that petitioner had 

not contacted an EEO Counselor within 

thirty (30) days after the occurrence of



6

the events she complained about, as 

required by 29 C.F.R. Sec. 1613.214. 
(App.96a-106a)

Petitioner timely appealed the
Department's decision to the Equal

Employment Opportunity Commission

("EEOC") pursuant to 29 C.F.R. Sec.
1613.233. The EEOC affirmed the

Department's decision, advising

petitioner that she could seek judicial
review against the Department in U.S.
district court. (App. 85a-95a)

Proceeding pro se. petitioner filed
suit under section 717 of the Civil

Rights Act of 1964, as amended. 42

U.S.C. Sec. 2000e-16 et sea. She named
the defendant as follows:

National Center for Health Services 
Research,
5600 Fishers Lane
Park Building, Room 3-50
Rockville, Maryland 20857



7

Attn: John Marshall, Director 

(See App. 34a) Suit was timely filed on 
a form supplied by the Clerk of the 

district court. Service was made by the 
U.S. Marshals Service thirty-one (31) 
days after the time for filing suit, 

pursuant to 42 U.S.C. Sec. 2000e-16(c), 
expired.

Upon referral to a magistrate, an 

evidentiary hearing was held to 
determine whether petitioner timely 

initiated the administrative proceedings 
and thereby properly exhausted her 

administrative remedies. The magistrate 

determined that petitioner had not 
timely contacted an EEO Counselor.

(App. 67a-84a) The case was dismissed.

Petitioner secured counsel and 

appealed. The Court of Appeals for the 
Fourth Circuit reversed, finding that



8

since petitioner claimed constructive 

discharge, the time within which she was 

required to contact an EEO Counselor 

began to run on the date she resigned. 

(App. 64a) The court found that 

petitioner did contacted an EEO 

Counselor within thirty (30) days after 
she resigned and remanded the case for a 

decision on the merits. (App. 64a-66a) 

On remand, the Department of Health 
and Human Services moved to dismiss for 

lack of subject matter jurisdiction 

because petitioner had not named the 
Secretary of the Department as the 

defendant. Assuming that the Secretary 
was the only proper defendant, previous 

counsel for the plaintiff moved to amend 

the complaint to name the Secretary and 

opposed dismissal.



9

The district court denied the 

amendment and dismissed the case, 
reasoning that the complaint could not 

relate back to the original filing under 

Rule 15 and that the court lacked 

subject matter jurisdiction over the 

original complaint because the Secretary 
was not named. (App. 43a~53a)

Petitioner appealed. She argued 
that a proper defendant, John Marshall, 

Director of the National Center, had 
been named as a defendant. She also 

argued that the her amendment should 

have been permitted to relate back to 
the original filing, as equitable 
reasons existed for extending the 

statute of limitations and thereby the 
time within which notice to the 

Secretary could be received.



10
The court of appeals, held that the 

amendment was properly denied, as 
service was not made within the 

statutory thirty (30) day time period 

for filing suit. (App. 32a-42a) The 

court also held that petitioner's 

previous counsel conceded that the 

proper defendant had not been named and 

therefore, petitioner could not argue 
that she named a proper defendant.
(App. 32a-42a)

Petitioner requests that this 
honorable Court review and reverse the 
decision of the Fourth Circuit.

REASONS FOR GRANTING THE PETITION
I. A CONFLICT EXISTS AMONG THE CIRCUITS 

ON WHETHER OR NOT THE THIRTY DAY 
STATUTE OF LIMITATIONS OF 42 U.S.C. 
SEC. 2000e-16(c) MAY BE EXTENDED FOR 
EQUITABLE REASONS SO AS TO PERMIT AN 
AMENDMENT CHANGING THE NAME OF THE 
DEFENDANT TO RELATE BACK UNDER RULE 
15-tC?_____________ __________________



11

The decision below differs from the 
decisions of the Court of Appeals for 

the District of Columbia Circuit in 

Mondv v. Secretary of the Army. 845 F.2d 

1051 (D.C. Cir. 1988), and the Court of 

Appeals for the Eighth Circuit in Warren 
v. Department of the Army. 867 F.2d 1156 

(8th Cir. 1989). A conflict exists 

among the circuits on two relevant 

issues. First, the circuits are split 

as to whether, in appropriate 
circmstances, the statute of limitations 
in 42 U.S.C. Sec. 2000e-16(c) may be 

equitably extended, thus extending the 

Rule of Civil Procedure 15(c)*s "period 

provided by law for commencing the 

action" in order to permit amendments to 
relate back. Second, the circuits are 

split on whether the 30 day limitation



12
of 42 U.S.C. Sec. 2000e-16(c) is a 

statute of limitation permitting 

equitable extension, or jurisdictional 

and precluding any extension.

The decision below by the Fourth 
Circuit permits no such extension of 

Rule 15(c)’s notice period and refuses 
to permit any equitable extension under 

42 U.S.C. Sec. 2000e-16(c).

The Seventh Circuit in Williams v. 
United States Postal Service. 873 F.2d 

1069 (7th Cir. 1989) also refuses to 
recognize such an extension.1 The rule 

announced in the decision below is a 

rigid rule, turning a statute of

The Seventh Circuit has 
recognized one exception, holding that 
the notice period of Rule 15(c) may be 
extended when the plaintiff has filed a 
petition to proceed in forma pauperis. 
Paulk v. Department of the Air Force. 
830 F.2d 79, 82 (7th Cir. 1987).



13
limitations2 into a jurisdictional 
prerequisite to suit.

In Mondv v. Secretary of the Army. 

845 F.2d 1051, the Court of Appeals for 

the District of Columbia Circuit held 
that the 30 day statute of limitations 

in 42 U.S.C. Sec. 2000e-16(c) can be 

extended in appropriate circumstances.

In Baldwin County Welcome 
Center v. Brown. 466 U.S. 147 (1984), 
this Court stated that the time for a 
non-federal sector employee to file 
suit, under 42 U.S.C. Sec. 2000e- 
5(f)(1), is a statute of limitation, 
subject to equitable extensions in 
appropriate cases. The majority of 
circuits that have considered the issue 
hold that the time for a federal 
emplolyee to file suit under 42 U.S.C. 
Sec. 2000e-16(c) is not jurisdictional, 
but a statute of limitation. See 
Warren v. Department of the Army. 867 
F.2d 1156; Mondv v. Secretary of the 
Army, 845 F.2d 1051; Boddv v. Dean. 821 
F•2d 346 (6th Cir. 1987); Hornsbv v. 
United States Postal Service. 787 F.2d 
87 (3rd Cir. 1986) ; Martinez v. Orr. 738 
F.2d 1107 (10th Cir. 1984); Milam v. 
United States Postal Service. 674 F.2d 
860 (11th Cir. 1982) .



14
It further permitted such a period of 

extension to be a part of the "period 

provided by law for commencing the 

action" for the purposes of Rule 15(c).

In Mondv. the complaint was timely, but 

named a purportedly improper defendant. 

The plaintiff relied on the U.S.
Marshals Service to make service. In 

this case, petitioner timely filed her 

action against a purportedly improper 

defendant and relied upon the U.S. 

Marshals Service to effect service. In 

both cases, service was not effected 

until after the statute of limitations 
expired. In Mondv. the District of 
Columbia Circuit equitably extended the 

limitations period and similarly 

extended the Rule 15(c) notice period to 

permit an amendment that would relate

back.



15
In this case, the Fourth Circuit 

explicitly refused to interpret Rule 

15(c)'s notice period as being amenable 

to any extension beyond the 30 days 

contained in 42 U.S.C. Sec. 200Qe-16(c).

The Eighth Circuit has endorsed the 
District of Columbia Circuit's 

approach3, whereas the Seventh Circuit 
endorses the Fourth Circuit's rule.4 

The circuits permitting equitable 

extension of the limitations period to 

provide a basis for satisfying Rule 

15(c) is timely notice requirement do 

not create an exception to Rule 15(c)'s 

requirements. They read Rule 15(c)'s 
notice "within the period provided by

Warren v. Department of the 
Army. 867 F.2d 1156.

4 Williams v. United States 
Postal Service. 873 F.2d 1069.



16

law for commencing the action" as being 

notice within the statute of 

limitations, recognizing that the 

statute of limitations may be equitably 
extended.

The decision below, however, 

rigidly requires notice within the 

limitations period. Because the 

decision below fails to recognize that 

"the period provided by law for 

commencing the action" may be equitably 
extended to permit amendments where the 

statute of limitations should be 

equitably extended, it turns the statute 
of limitations into a jurisdictional 

barrier that may not be extended where a 

mistake was made concerning the identity



17
of the proper defendant.5

In Rvs v. United States Postal 

Service. 702 F.Supp. 945 (D.Mass. 1989), 

the court avoided making a decision on 
whether the statute of limitations and 

the notice period are equally amenable 

to extension by finding that there was 

the requistite notice for an amendment 

to relate back. However, the court 

recognized that dismissal as required by 

the Fourth and Seventh Circuits requires

The Fourth Circuit noted that 
it, as did this Court in Shiavone v. 
Fortune. 477 U.S. 21 (1986), refuses to 
read the reasonable time requirement for 
service under Rule 4 of the Federal 
Rules of Civil Procedure into the notice 
period under Rule 15(c). The equitable 
extension recognized by other Circuits 
and urged here is not the "reasonable 
time" extension for service rejected by 
this Court. The equitable extension of 
the statute of limitations is inherently 
a part of the "period provided by law 
for commencing the action," under Rule 
15(c).



18
that the statute of limitations of 42 

U.S.C. Sec. 2000e-16(c) be a 

jurisdictional limitation. The court 

further recognized a "divisive split" 

among the circuits as to whether 42 
U.S.C. Sec. 2000e-16(c)'s 30 day 

limitation period is juridictional. 704
F.Supp. at 948.

Currently, six circuits, i.e.. the 

Third, Sixth, Eighth, Tenth, Eleventh, 
and District of Columbia have either 

held or indicated that the limitation is 
a statute of limitation and is not 
jurisdictional. See Warren v.

Department of the Army. 867 F.2d 1156 

(8th Cir. 1989); Mondv v. Secretary of 

the Army. 845 F.2d 1051 (D.C. Cir.

1988) ; Boddy v. Dean. 821 F.2d 346 (6th 
Cir. 1987); Hornsby v. United States

Postal Service. 787 F.2d 87 (3rd Cir.



19
1986); Martinez v. Orr. 738 F.2d 1107 

(10th Cir. 1984); Milam v. United States 

Postal Service. 674 F.2d 860 (11th Cir. 

1982) .

Three circuits, i.e.. the Fifth, 

Seventh, and Ninth, have held the 
limitations period to be jurisdictional. 
Mahoney v. United States Postal Service. 

884 F.2d 1194 (9th Cir. 1989); Williams 

v. United States Postal Service. 873 

F.2d 1069 (7th Cir. 1989); Paulk v. 
Department of the Air Force. 830 F.2d 79 

(7th Cir. 1987); Lamb v. United States 
Postal Service. 852 F.2d 845 (5th Cir. 

1988) ; Bell v. Veterans Administration 

Hospital. 826 F.2d 357 (5th Cir. 1988)6;

A panel of the Court of 
Appeals for the Fifth Circuit, noting 
the split among the Circuits and its own 
jurisdictional rule, has urged 
reconsideration of that Circuit's 
precedent holding the 30 day time limit 
to be jurisdictional. Hernandez v.



20
Cooper v. United States Postal Service. 

740 F .2d 714 (9th Cir. 1984), cert, 

denied. 471 U.S. 1022 (1985).
This Court has twice denied 

certiorari in cases presenting the issue 

of whether the 30 day time limitation of 
42 U.S.C. Sec. 2000e-16(c) is 

jurisdictional, over dissents noting a 
split in the circuits. Cooper v. United 

States Postal Service. 471 U.S. 1022 

(1985); Stuckett v. United States Postal 
Service. 469 U.S. 898 (1984). Since 

denial of certiorari in the Cooper and 
Stuckett cases, the split in the 

circuits has grown and sharpened. Six 
of the circuits, noted above have 

announced their rules since 1985. Four 

of the six hold the limitations period

Aldridge. 866 F.2d s o o  (5th cir. 1989).



21
to be non-jurisdictional, and two of the 
six hold that it is jurisdictional.
Most importantly, this split has 

resulted in a split among the circuits 

as to the proper application of Rule 

15(c)!s notice requirement.
The split among the circuits 

permits and indeed has widened. This 

Court should intervene to resolve the 
split in the circuits.

II. THIS COURT'S REVIEW IS NECESSARY TO 
END CONFUSION AMONG LOWER COURTS 
AND LITIGANTS INTERPRETING 42 
U.S.C. SEC. 2000e-16(c)______ __

Section 2000e-16(c) states that in 

any lawsuit brought under 42 U.S.C. Sec. 

2000e-16 "the defendant shall be the 

head of the department, agency, or unit, 

as appropriate." This Court has never 

analyzed and interpreted 42 U.S.C. Sec.



22
2000e-16(c) with respect who may be 

named as a federal government defendant. 

In fact, petitioner's research has 

revealed only two decisions in the 

seventeen years since its enactment that 

purport to analyze and interpret that 
section. The application and 

interpretation of the section has not 

been consistent among the district 

courts or the courts of appeals.

Petitioner named as the defendant 
in her civil action both the unit of the 

Department of Health and Human Services 
in which she worked and the "head" of 

that unit. Her complaint was filed 
against the

National Center for Health Services
Research
5600 Fishers Lane
Park Building, Room 3-50
Rockville, Maryland 20857

Attn: John Marshall, Director



23
(App. 34a)»7

In Stephenson v. Simon. 427 F.Supp. 

467 (D.D.C. 1976), the district judge 

interpreted section 2000e-16(c) to mean 

that there is only one proper defendant

The Court of Appeals 
determined that petitioner's previous 
counsel conceded that a proper defendant 
was not named and, therefore, refused to 
address the argument that a proper 
defendant, the "head" of the "unit" in 
which she was employed was named. 
Ordinarily stipulations of the sort the 
court considered to be a concession are 
binding. However, a party may be 
relieved of the binding nature of such a 
stipulation when "manifest injustice" 
will result from enforcement of the 
stipulation or the stipulation was 
entered on an erroneous view of the 
facts or law. See Grafenhain v. Pabst 
Brewing Co.. 870 F.2d 1198 (7th Cir. 
1989). Here, manifest injustice will 
result. Petitioner is deprived of the 
opportunity to have her timely lawsuit 
heard. Also present in this case is the 
fact that the stipulation was based on 
an erroneous view of the law. 
Petitioner's previous counsel assumed 
that a proper defendant was not named.
As is illustrated herein, the law 
governing who are proper defendants is 
far from clear.



24

in a Title VII case against a federal 

employer. According to that court, the 

defendant must be the person highest in 

the chain of command within a cabinet 

department, a military department, or an 
independent agency.

The District of Columbia Circuit, 
faced with a case in which it could 

endorse the Simon interpretation, 
refused to do so. Mondv v. Secretary of 

the Army. 845 F.2d at 1052 n.l 

(expressly declining to opine as to who 

may be a proper defendant under 42 
U.S.C. Sec. 2000e-16(c)). In Mondv. 

Senior Judge MacKinnon noted that his 

interpretation of the section permits 

suit against a variety of defendants, 

provided they are "appropriate" under 

the circumstances of the case. 845 F.2d 
at 1059. To Judge MacKinnon, the naming



25

in that case of an Army Colonel who was 

the base commander was sufficient under 
the statute.

The only circuit opinion purporting 
to analyze and interpret the section 

actually does no more than quote Simon 
and adopt its interpretation. See 

Hancock v. Eqqer. 848 F.2d 87 (6th Cir. 
1988)(holding that Secretary of the 

Treasury was the only proper defendant 
and that suit could not be maintained 

against the Commissioner of Internal 

Revenue). Other ciruits have noted that 
the section is unclear.8 The Seventh 
Circuit stated that the phrase "head of 

the department, agency, or unit, as

The Fourth Circuit recently 
stated that the section "is clear; the 
head of the department for which the 
plaintiff works is the proper defendant 
•••" Gardner v. Gartman. 880 F.2d 797, 
799 (4th Cir. 1989).



26
appropriate," is "cryptic . . . 
provid[ing] little guidance to 

litigants." Paulk v. Department of the 

Air Force. 830 F.2d 79, 80 (7th Cir. 

1987). The Third Circuit, in Williams 

v. Army and Air Force Exchange Service. 

830 F.2d 27, 31 (3rd Cir. 1987), 

"strongly urge[d]" federal agencies, 

including the Justice Department, to 
provide litigants with clear guidance on 

who should be sued.

The Third Circuit's Williams 
decision dismissed a complaint filed 
only against a unit of a federal 

cabinent level department. However, the 

court noted that the plaintiff had a 

choice of proper defendants under 42 

U.S.C. Sec. 2000e-16(c). According to 

the Third Circuit, either the "Secretary 
of Defense or the head of the agency



27

(AAFES)" would be a proper defendant.
830 F.2d at 29 (emphasis added). 

Similarly, the Fifth Circuit observed 

that 42 U.S.C. Sec. 2000e-16(c) provides 

a choice of defendants. In Harris v. 

Department of Transportation. 843 F.2d 
219, 220 (5th Cir. 1988), the court, 

dismissing the complaint, stated that an 
employee of the Coast Guard, a part of 

the Department of Transportation could 
sue the "head of the Coast Guard."
Other courts have reached similar 
results.9

I.M.A.G.E. v. Bailar. 78 
F.R.D. 549 (N.D. Cal. 1978)(Postmaster 
General and officials lower in the chain 
of command are appropriate defendants); 
Guildav v. Department of Justice. 451 
F.Supp. 717, 726 (D.Del. 1978)("The 
wording of Title VII leaves the Court 
considerable discretion to decide which 
defendant is the 'appropriate' one."); 
Beasley v. Griffin. 427 F.Supp. 801, 803 
(D.Mass. 1977)("since each [defendant] 
may be described as a 'head' of the 
department, aganecy or unit in question



28

Seventeen years have elapsed since 
Title VII was amended to permit actions 

against the federal government. Despite 

seventeen years of litigation and 

hundreds of cases, a fundamental 

interpretive problem continues to infect 
application of 42 U.S.C. Sec. 2000e- 

16(c). The Courts of Appeals do not 

uniformly apply the section and avoid

here— the Boston Region of the United 
States Customs Service [a part of the 
Treasury Department]— I see no 
persuasive reason to dismiss the 
complaint against any of them."); Mosley 
v. United States. 425 F.Supp. 50, 55 
(N.D. Cal. 1977)(Lieutenant Commander 
who was head of the Navy Postgraduate 
School was the "only proper 
defendnant."); Schenk v. Pvles. 17 FEP 
Cases (BNA) 1469 (D.D.C. 1976)("Head" of 
the Federal Aviation Administration, a 
part of the Department of 
Transportation, was the proper 
defendant); Jones v. United States. 376 
F.Supp. 13, 14 n.3 (D.D.C.
1974)(Administrator of Agency for 
International Development, a part of 
State Department, was the proper 
defendant).



29
interpreting it. This Court's 

interpretation of the section is 

necessary to ensure uniform treatment 

from one court to another and to end the 

confusion experienced by lower courts, 
practitioners and litigants.

CONCLUSION
Because the decision below creates 

and deepens conflits among the circuits 

in the application and interpretation of 
42 U.S.C. Sec. 2000e-16(c) and Rule 15 

of the Federal Rules of Civil Procedure; 
because this Court's guidance is needed 
to avoid further confusion and 

conflicting decisions in cases involving 

employees of the federal government; and 
because the decision below fails to 

correctly interpret either Rule 15(c) of 
the Federal Rules of Civil Procedure or



30

42 U.S.C. Sec. 2000e-16(c), a writ of 

certiorari should issue and the decision 
below should be reversed.

Respectfully submitted,

FITZPATRICK & VERSTEGEN 
Spring Valley Center 
Suite 400
4801 Massachusetts Avenue, N.W. 
Washington, D.C. 20016
(202) 364-8710

Counsel for Petitioner



31a

APPENDIX



32a
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 88-1017

LIH Y. YOUNG,
Plaintiff-Appellant,

versus

NATIONAL CENTER FOR HEALTH SERVICES 
RESEARCH,

Defendant-Appellee.

Appeal from the United States District 
Court for the District of Maryland, at 
Baltimore. Joseph H. Young, District 
Judge. (CA-85-2547—Y)

Argued: February 9, 1989
Decided: September 27, 1989

Before Ervin, Chief Judge, and Russell 
and Widener, Circuit Judges.

PER CURIAM:

Lih Y. Young appeals the dismissal 

of her case for lack of jurisdiction. 

Finding no error, we affirm the decision



33a
of the district court.

I.
Appellant Lih Y. Young, Ph.D., is a 

former employee of the National Center 

for Health Services Research (the 

"Center"), as part of the Department of 

Health Services ("DHHS"), which is 
supervised by the Assistant Secretary 

for Health. In June 1984, Dr. Young 

filed an administrative complaint 

against the Center, alleging that the 

Center discriminated against her on the 

basis of national origin and that she 

was forced to resign in March 1984. The 

complaint was rejected by DHHS, which 
ruled that Dr. Young had failed to bring 

her complaints to the attention of an 

Equal Employment Opportunity ("EEO") 

Counselor within 30 days. Dr. Young 

appealed to the EEO, which affirmed the



34a
decision of the DHHS. Dr. Young, 

proceeding pro se, filed a civil action 

in the District Court for the District 
of Maryland on June 14, 1985. The 

complaint was captioned in pertinent 
part:

National Center for Health Services
Research

Attn: John Marshall, Director
The Attorney General, the United 

States, and the Center were served on 
July 18, 1985, thirty-four days after 
the filing of the complaint.

After the case was referred to a 

magistrate, the magistrate dismissed the 
action for failure to exhaust 

administrative remedies; the magistrate 

found that Dr. Young did not contact an 

EEC counselor in a timely manner. Dr. 

Young obtained counsel and appealed.



35a
This court reversed, holding that the 

date of her resignation, 29 days before 

her first contact with the EEO officer, 

was the appropriate date to start the 

running of the 30-day limit where a 

plaintiff had alleged constructive 

discharge. Young v. National Center for 

Health Services Research. 828 F.2d 235, 

238 (4th Cir. 1987). The case was 

remanded to the district court for a 
decision on the merits.

On remand, the defendant moved to 
dismiss the lack of subject matter 

jurisdiction, claiming that Dr. Young 
had failed to name the proper defendant- 

-the Secretary of DHHS. Dr. Young 

opposed the motion. She also moved to 

amend the complaint to specifically 

relate back to the original complaint 

date pursuant to Fed.R.Civ.P. 15. The



36a
district court denied the motion, 

holding that the motion to amend could 

not relate back under Fed.R.Civ.P. 15 

because service had not been made within 

the proper statute of limitations as 
mandated by that Rule. Young v.

National Center for Health Services 

Research. 704 F. Supp. 88, 90 (D.Md. 

1988). This appeal followed.

II.
In this appeal, we are asked to 

decide (1) whether the district court 

erred when it dismissed Dr. Young's 

action for lack of jurisdiction because 

she failed to name the proper defendant, 

and (2) whether the district court erred 

when it denied Dr. Young's motion to 
amend her complaint.

III.

The district court, relying on 42



37a
U.S.C. sec. 2000e-16(c), dismissed

appellant's suit because the proper
defendant had not been named. That

statute provides in pertinent part:

[A]n employee . . .  if 
aggrieved by the final 
disposition of his 
[administrative] complaint,
. . . may file a civil action 
as provided in section 2000e-5 
of this title, in which civil 
action the head of the 
department, agency, or unit, 
as appropriate, shall be the 
defendant. 42 U.S.C. sec. 
2000e-16(c) (emphasis added).

Appellant contends that the
district court erred in dismissing her

action because she in fact did name the
proper defendant: John Marshall, head

of the "unit" in which she worked.1

At the time the complaint was 
filed, John Marshall was the Director of 
the National Center for Health Services 
Research, and Otis R. Bowen was the 
Secretary of the Department of Health 
and Human Services.



38a
Yet, appellant conceded to the district 
court, and in her brief to this court, 

that she should have named the Secretary 

of the DHSS as the defendant.2 We hold 

that an issue conceded at the district 

court level cannot be reargued at this 
level. See, e.q. . International Traveler 

Cheque Co. v. BankAmerica Coro.. 660 
F.2d 215, 224 (7th Cir. 1981) ("it is 

well settled law that a party cannot 

complain of errors which it has

This mistake was noted by 
appellant's previous counsel and by the 
district court. See, e.q.. Appellant's 
Brief at p. 3, n.5 ("In opposing the 
motion to dismiss, plaintiff's previous 
counsel assumed that plaintiff's pro se 
complaint did not satisfy the 
requirements of 42 U.S.C. sec. 2000e- 
16(c). See Plaintiff's Motion to 
Dismiss."); Young v. Nat'l Center for 
Health Services Research. 704 F. Supp. 
88, 89 (D.Md. 1988)("Plaintiff agrees 
that she should have sued the Secretary 
of Health and Human Services.
Opposition at 1, 3.").



39a
committed, invited, induced the court to 
make, or to which it consented." 

(Citations omitted.)); Pve v. Mitchell. 

574 F.2d 476, 480 (9th Cir. 1978)("Where 

an issue is conceded below, it cannot be 

raised for the first time on appeal." 
(Citations omitted.))

Because the appellant has conceded 
that the Secretary was the proper 

defendant, she is barred from appealing 

the district court's decision that it 

lacked subject matter jurisdiction 
because the Secretary was not named as 
the defendant.

IV.

The Appellant also contends that 
the district court erred when it denied 

her motion to amend her complaint to 

name the Secretary as the proper 

defendant because the amendment should



40a

have been allowed to relate back to the
original complaint pursuant to

Fed.R.Civ.P.15(c)3 "[T]he language of

Rule 15(c) provides:

Relation Back of Amendments. 
Whenever a claim or defense asserted in 
the Amended pleading arose out of the 
conduct, transaction, or occurrence set 
forth or attempted to be set forth in 
the original pleading, the amendment 
relates back to the date of the original 
pleading. An amendment changing the 
party against whom a claim is asserted 
relates back if the foregoing provision 
is satisfied and, within the period 
provided by law for commencing the 
action against the party to be brought 
in by amendment that party (1) has 
received such notice of the institution 
of the action that the party will not be 
prejudiced in maintaining his defense on 
the merits, and (2) knew or should have 
known that, but for a mistake concerning 
the identity of the proper party, the 
action would have been brought against 
the party.

The delivery or mailing of process 
to the United States Attorney, or the 
United States Attorney's designee, or 
the Attorney General of the United 
States, or an agency or officer who 
would have been a proper defendant if 
named, satisfies the requirement of 
clauses (1) and (2) hereof with respect



41a
the Rule requires, in plain and clear 

terms, that the notice [required under 
the Rule for relation back when there is 

a proposed change of parties] be given 

'within the limitations period.'"

Weisqal v. Smith. 774 F.2d 1277, 1279 

(4th Cir. 1985). As the Supreme Court 

has cautioned, we cannot "temper the 

plaint meaning of the language by 

engrafting upon it an extension of the 

limitations period equal to the asserted 
reasonable time, inferred from Rule 4, 
for service of a timely filed complaint.

. . . Under Rule 15(c), the emphasis is 

upon thee period provided by law for 

commencing the action against' the 

defendant." Schiavone v. Fortune. 477

to the United States or any agency or 
officer thereof to be brought into the 
action as a defendant.



42a
U.S. 21, 30 (1986); see also Weisaal.

774 F.2d at 1279. Because the plaintiff 

did not serve the proper defendant until 

34 days after filing the complaint, Rule 
15(c)' s relating back provisions cannot 
apply.

Because the proper defendant did 
not receive notice during the 

limitations period of the action against 
it, the district court was correct in 

holding that the amendment could not 

"relate back" to the date the original 
complaint was filed.

V.

Accordingly, the judgment of the 
district court is affirmed.

AFFIRMED.



43a

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

LIH Y. YOUNG *

v. * CIVIL NO. Y-85-2547
THE NATIONAL *
CENTER FOR 
HEALTH SERVICES 
RESEARCH *

MEMORANDUM

Plaintiff, formerly an employee 

with the defendant federal agency, filed 
this pro se action for employment 

discrimination in June, 1985, pursuant 
to 42 U.S.C. §§ 2000e-5, 16. This Court 

referred the matter to a magistrate and 

later adopted his finding, upon an 

evidentiary hearing, that plaintiff's 

action was barred for failure to bring 
the grievance before an Equal 

Opportunity ("EEO") counselor within the



44a
period required by 29 C.F.R. § 

1613.214(a)(1)(i)(1986).* This Court, 

therefore, dismissed the action for 

failure to properly exhaust the 

administrative process available to 
federal employees.

Plaintiff obtained counsel and 

appealed. The Fourth Circuit Court of 

Appeals reversed, holding that the date

Plaintiff brought her 
grievance to the attention of the EEO 
officer on April 17, 1984. Magistrate 
Smalkin found that "the March 11, (1984) 
effective date of suspension is the date 
of the last act of discrimination 
comprehended within the administrative 
complaint at issue in this case."
Edited Transcript of Oral Opinion at 4- 
5. The EEOC had "determined that the 
last discriminatory act occurred 
February 27, 1984." Id. at 2. The 
Fourth Circuit later ruled that 
plaintiff's constructive discharge 
required this Court to consider 
plaintiff's date of resignation, March 
19, 1984, as the date of defendant's 
alleged last discriminatory act.



45a
of her resignation, 29 days before her 

first contact with the EEO officer, was 

the appropriate date to start the 

running of the 30 day limit where 

plaintiff had alleged constructive 

discharge. 828 F.2d 235, 238 (4th Cir. 
1987) .

On remand, defendant has moved to 
dismiss the action for lack of subject 

matter jurisdiction. Plaintiff named 

only the agency as the defendant, but 42 

U.S.C. § 2000e-16(c) specifically 

requires that in her "civil action the 

head of the department, agency, or unit, 
as appropriate, shall be the defendant." 

Thus, with only the agency as defendant, 

this Court would have no jurisdiction. 

Plaintiff agrees that she should have 

sued the Secretary of Health and Human 

Services. Opposition at 1, 3. However,



46a
plaintiff argues that she should be 

allowed to amend her complaint, 

substituting the Secretary as the proper 

defendant, and that this amendment 

should be allowed to relate back to the 

original complaint pursuant to 
Fed.R.Civ.P. 15(c). Plaintiff's motion 
to amend is, therefore, also pending.

The Fourth Circuit recently has 
affirmed the strict application of Rule 

15(c) in Metz v. United States Postal 

Service. No. 87-3050, slip opinion (4th 
Cir. January 4, 1988). The court relied 

upon its previous decision in Weisqal v. 
Smith. 774 F .2d 1277, 1279 (4th. Cir. 

1985), where it held that even a pro se 

plaintiff was held to the strict 

requirements of Rule 15(c) for 

amendments to "relate back."
Furthermore, its holding that Rule 15(c)



47a

does not implicitly include "reasonable
time" flexibility for meeting the rule's

notice requirements has been approved by

the Supreme Court. Schiavone v.

Fortune. 106 S.Ct. 2379, 2385 (1986).

Thus, this Court will apply Rule 15(c)

strictly. Rule 15(c) reads as follows:

(c) Relation Back of Amendments. 
Whenever the claim or defense 
asserted in the amended pleading 
arose out of the conduct, 
transaction, or occurrence set 
forth or attempted to be set forth 
in the original pleading, the 
amendment relates back to the date 
of the original pleading. An 
amendment changing the party 
against whom a claim is asserted 
relates back if the foregoing 
provision is satisfied and,within 
the period provided by law for 
commencing the action against the 
party to be brought in by amendment 
that party (1) has received such 
notice of the institution of the 
action that the party will not be 
prejudiced in maintaining his 
defense on the merits, and (2) knew 
or should have known that, but for 
a mistake concerning the identity 
of the proper party, the action 
would have been brought against the 
party.



48a

The delivery or mailing of 
process to the United States 
Attorney, or the United States 
Attorney's designee, or the 
Attorney General of the United 
States, or an agency or officer who 
would have been a proper defendant 
if named, satisfies the requirement 
of clauses (1) and (2) hereof with 
respect to the United States or any 
agency or officer thereof to be 
brought into the action as a 
defendant.

The court in Weisaal noted that each of 

three elements must be met: "(1) same
transaction or occurrence; (2) the new 

party had notice of the action prior to 
the expiration of the statute of 

limitations; and (3) he knew or should 

have known that but for a mistake in 
identity the action would have been 

brought against him." 774 F.2d at 1279. 
Here, there is no dispute that the 

amended complaint would arise from the 

same transaction or occurrence, rather



49a

the issue is one of the adequacy of 

notice to the prospective defendant.

Plaintiff was required to file her 

civil action within 30 days after she 

received notice of the final decision of 

the Equal Employment Opportunity 

Commission ("EEOC'') . 42 U.S.C. § 2000e-

16. The EEOC issued plaintiff a right- 

to-sue letter on May 18, 1985.
Complaint 5 9. Thus, she was required 

to file the complaint in this action by 
June 17, 1985. She filed the complaint 

on June 14, 1985, and effected service 

of process upon the United States 

Attorney for the District of Maryland 

and upon the Attorney General on July 

18, 1985, 34 days after the filing the 

complaint. Under Weisgal. the second 

element of Rule 15(c) relation back is 

that plaintiff serve notice of the



50a

action upon a proper defendant within 

the same limitations period required for 
filing the complaint itself. Thus, 

plaintiff missed her opportunity to make 

use of relation back by amendment based 

upon service of other government 

officials pursuant to the second 
paragraph of Rule 15(c).

Plaintiff argues that "although she 
did not serve the United States Attorney 
or the Attorney General within the 
thirty-day period, she did effect 

'prompt service' within the requirements 
of Rule 4." Opposition at 6. Rule 

4(a)'s "prompt service" requirement 

cannot be raised as a shield to the 

strictly interpreted requirements of 

Rule 15(c). The adoption of the same 

period of limitations under Rulel5(c) is 

an independent due process protection



51a

preventing an effective breaching of the 

original statute of limitations when a 
plaintiff realizes she has sued the 

wrong party. Thus, the limitations 

period is applicable to all defendants, 

proper as well as improper. Plaintiff's 
argument attempts to accomplish the same 
sort of "reasonable time" flexibility 

rejected by the Supreme Court in 

Schiavone and the Fourth Circuit in Metz 
and Weisaal.

Plaintiff's second argument is that 
" [defendant's unreasonable delay in 

raising this defense should bar the 

defense." Opposition at 7. In other 

words, defendant was too late in saying 

that plaintiff was too late. The Court 

finds plaintiff's defense of laches to 

be the proverbial pot calling the kettle 

black. While it is true that the United



52a
States Attorney did litigate the issue 

of the timeliness of the EEO grievance 

in this Court and the Fourth Circuit, it 

was not required to raise all its 

defenses in its answer to plaintiff's 
complaint.

Finally, plaintiff claims to have 
relied upon the standard form complaint 

sheet provided by the clerk of the court 

while unrepresented by counsel. The 
Court has examined this form, used by 

some pro se plaintiffs. The form 

adequately outlines the essential 

elements of a complaint to be filed in 
federal district court. It does not, 

nor could it, attempt to pretend to 

provide for all the factual and legal 

issues which may arise in the course of 

litigating an employment discrimination 

case. Such suits are susceptible to



53a
dismissal for a variety of 

jurisdictional reasons, circumstances, 
and procedural mistakes, such as 

plaintiff's untimely service here. An 

attorney's assistance is especially 

important for plaintiffs attempting to 

navigate these waters after having their 
EEOC charges rejected. Nonetheless, 

however tolerant the court may be of 
administrative or presentation 

inelegance on the part of pro se 

plaintiffs, the rules of procedure apply 
equally to represented and unrepresented 

parties. Moreover, this Court has no 

power to act where, as here, there is no 
jurisdiction.

United States District Judge



54a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 86-1081

LIH Y. YOUNG
Plaintiff - Appellant

versus

NATIONAL CENTER FOR HEALTH SERVICES 
RESEARCH

Defendant - Appellee

Appeal from the United States District 
Court for the District of Maryland, at 
Baltimore. Frederic N. Smalkin, 
District Judge. (CA-85-2547-Y)

Argued: June 3, 1987 
Decided: Sept. 9, 1987

BEFORE WINTER, Chief Judge, RUSSELL AND 
WIDENER, Circuit Judges.

WINTER, Chief Judge:

Dr. Lih Young sued her former



55a

employer, the National Center for Health 

Services Research (NCHSR), under 42 
U.S.C. § 2000e-16, alleging that it 

discriminated against her because she is 
of Chinese national origin. After an 

evidentiary hearing, the district court 

found that Dr. Young had failed to bring 

her grievance to an Equal Employment 

Opportunity (EEO) counselor within 30 
days as required by 29 C.F.R. §

1613.214(a)(1) (i) (1986). The court

therefore dismissed the suit for failure 

to exhaust administrative remedies. We 

think the record supports the conclusion 
that plaintiff brought her claim for 

constructive discharge to the EEO 

counselor within the required 30 days, 

and accordingly we reverse.

I.
From 1982 to March 19, 1984, Dr.



56a
Young was employed as an economist by 

NCHSR, which is a division of the United 
States Department of Health and Human 

Services. Dr. Young alleges that her 

employer discriminated against her 

throughout the period of her employment. 
She asserts, for example, that because 
of her national origin her supervisor 

treated her abusively, she was denied 
sick leave and annual leave, she was not 
given adequate access to training 

facilities, she was improperly suspended 
from duty effective March 11, 1984, and 
that was ultimately forced to resign on 
March 19, 1984.

On April 17, 1984 —  twenty-nine 

days after she resigned — ■ Dr. Young 

contacted an EEO counselor to complain 
that NCHSR's actions were 

discriminatory. The counselor's report



57a
on the meeting summarized Dr. Young's 

complaints about abusive treatment and 
arbitrary denial of leave, and it stated 

that "[c]ontinual harassment has lead to 

her feeling sick and feeling forced to 
resign which she did on March 19, 1984." 
On April 19, 1984, two days after the 
meeting with the counselor, Dr. Young 

filed a formal complaint with the EEOC; 

that complaint was not produced in the 

district court and is not in the record 
on appeal. However, in a letter that is 
part of the record, the Department of 

Health and Human Services rejected Dr. 
Young's complaint on the grounds that 
she had contacted the EEO counselor more 

than thirty days after the last alleged 

act of discrimination. The EEOC 

sustained the Department's decision.

Dr. Young then filed a pro se



58a
complaint in the district court, 
charging NCHSR with numerous distinct 

acts of discrimination and alleging that 

the discrimination continued through 

April, 1984, when she contacted the EEO 

counselor. In particular, the complaint 
asserted that Dr. Young had been forced 
to resign on march 19; it alleged that 

the agency director would not address 

her grievances about her suspension and 
sick leave unless she resigned, and that 
the director asked for her 

identification card and prepared a 
resignation form for her signature.

The suit was referred to a 
magistrate, who convened an evidentiary 

hearing to determine whether Dr. Young 

had brought her grievance to the EEO 

counselor within the required thirty 

days. After the hearing, the court



59a
ruled against Dr. Young and dismissed 

the suit. The court recognized that Dr. 
Young had contacted the counselor 

twenty-nine days after her resignation 

but concluded that the resignation was 
merely an "inevitable consequence" of 

the prior acts of alleged discrimination 
and "not itself a discriminatory act." 
Dr. Young, who is now represented by 
counsel, appeals from this holding.

II.
It is settled law that a federal 

employee must seek administrative review 
of her grievance before filing a suit 

for unlawful discrimination in 
employment. See 42 U.S.C. § 2000e-16(b) 

& (c); 29 C.F.R. § 1613.211 et sea. ; 

Zocrrafov v. V.A. Medical Center. 779 

F.2d 967, 968-69 (4 Cir. 1985). As a 

first step, the employee must speak to



60a
an EEO Counselor about an alleged act of 

discrimination within 30 days of the 
alleged act. 29 C.F.R.

1613.214(a)(1)(i) (1986).

It is also settled that the 

applicable administrative deadlines run 
from the time of the discriminatory act, 
not from the time of a later, inevitable 

consequence of that act. Delaware State 
College v. Ricks. 449 U.S. 250 (1980); 
United Airlines v. Evans. 431 U.S. 553 
(1977). Whether an employer's action is 
a "discriminatory act" or merely an 
"inevitable consequence" of prior 

discrimination depends on the particular 
facts of the case. Ricks. 449 U.S. at 

258 n.9. A resignation is not itself a 

"discriminatory act" if it is merely the 

consequence of past discrimination, but 

if the employer discriminates against an



61a
employee and purposely makes the 

employee's job conditions so intolerable 

that a reasonable person would feel 

forced to resign, then the resignation 

is a constructive discharge —  a 
distinct discriminatory "act" for which 
there is a distinct cause of action.
See Bristow v. Daily Press. Inc.. 770 

F.2d 1251, 1255 (4 Cir. 1985); EEOC v. 

Federal Reserve Bank of Richmond. 698 
F .2d 633, 672 (4 Cir. 1983). If the 

employee has related discrimination 
claims that are barred by limitations or 

failure to exhaust, "these actions 

should be allowed as evidence on the 
guestion of whether [plaintiff] was 

constructively discharged." Downey v. 

Southern Natural Gas Co.. 649 F.2d 302, 
305 (5 Cir. 1981).

In our view, the allegations of Dr.



62a
Young's complaint, as well as the facts 

brought out in the evidentiary hearing, 
make out a claim that she was 

constructively discharged on March 19 
and that she complained about that 

constructive discharge to her EEO 
counselor 29 days later, on April 17.
It is undisputed that Dr. Young 

contacted the EEO counselor on April 17 
and, according to the counselor's 
report, complained that "[cjontinual 

harassment has lead to her feeling sick 
and feeling forced to resign which she 
did on 3/19/84." We think "continual 
harassment," if it in fact occurred, 

could certainly make working conditions 

so "intolerable' that a reasonable 

person would feel forced to resign. See 
Bristow. 770 F.2d at 1255. Similarly, 

her claim of constructive discharge is



63a
supported by Dr. Young's allegations and 

testimony that the agency director would 

not act on her grievances unless she 
resigned. And it is possible to infer 

discriminatory purpose from Dr. Young's 

many other allegations of 

discrimination. See Downey. 649 F.2d at 
305 (other discriminatory acts are 
relevant to whether constructive 

discharge was discriminatory). Finally, 
we are mindful of the traditional rule 
that EEO pro se complaints are to be 
liberally construed, President v. Vance. 
627 F.2d 353, 362 (D.C. Cir. 1980), and 

for this reason we do not think it fatal 
to her case that Dr. Young's 

administrative complaints did not use 

the precise words "constructive 
discharge."

We are unsure whether the district



64a
court's dismissal of the suit was a 

dismissal under Fed. R. Civ. P. 12(b)(6) 
or an entry of summary judgment under 
Fed. R. civ. P. 56, but we need not 

decide this issue because in either 

event the judgment of the district court 
must be reversed. The complaint 
adequately alleges that Dr. Young 

brought her constructive discharge claim 
to the EEO counselor within 30 days, and 
the evidentiary hearing raises a genuine 
issue of material fact as to whether 

there was a constructive discharge.
NCHSR contends that even if Dr. 

Young complained of the resignation to 
the EEO counselor on April 17, she still 
did not meet all the regulatory 

requirements because she made no mention 
of the resignation in her formal 

complaint on April 19. We think that



65a
this contention is foreclosed. The 
defendant has the burden of proving the 
affirmative defense of failure to 

exhaust administrative remedies, Brown 

v. Marsh. 777 F.2d 8, 13 (D.C. Cir.

1985), and yet NCHSR has not produced a 
copy of the very complaint it claims is 

defective —  even though it admits that 
the complaint was filed with the 

Department of Health and Human Services 
and is presumably in the custody of the 
government. Under the circumstances, we 

decline to presume that the complaint 
was defective for failure to include 
mention of her resignation as a 

constructive discharge about which she 

had complained orally.*

Unquestionably, Dr. Young gave 
the agency oral notice of a claim of 
constructive discharge. We neither 
decide the question nor express any view 
thereon, but we do note that, in an



66a

In sum, we hold that the district 
court erred by ruling that the allegedly 

forced resignation on March 19 could not 

be a "discriminatory act," so that we 

conclude that Dr. Young has alleged 
facts showing that she exhausted her 

administrative remedies. The case must 
be returned to the district court for 

determination on its merits.

REVERSED AND REMANDED

III.

appropriate case, language in Brown. 777 
F.2d at 13, and in President. 627 F.2d 
at 361, may provide a basis for the 
argument that the absence of an 
allegation of discriminatory treatment 
in the formal written complaint is not 
fatal to a claim for relief if notice of 
the alleged discriminatory treatment was 
given at an earlier state of the 
grievance process or at some later time 
before the agency issued its final 
decision.



67a

IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF MARYLAND

LIH Y. YOUNG *

V .  * CIVIL NO. Y-85-2547
THE NATIONAL *
CENTER FOR 
HEALTH SERVICES 
RESEARCH *

(EDITED) TRANSCRIPT OF ORAL OPINION

This is a Title VII action filed by 
the plaintiff on June 14, 1984, pro se, 
seeking judicial redress for alleged 
acts of discrimination against her on 
account of her national origin (Chinese) 
that occurred while she was employed as 

a Ph.D. researcher with the National 

Center for Health Services Research, a 

division of the United States Department 
of Health and Human Services (HHS).

This Court has jurisdiction under 42



68a
U.S.C. § 2000e-16. The matter was 
referred to me, with consent, pursuant 

to 28 U.S.C. § 636(c) by Judge Young's 

order dated December 17, 1985. The 

challenged actions of the agency (HHS) 

were the subject of a decision by the 
EEOC in Appeal #01842738. That appeal, 
decision on which was rendered May 3, 

1985, was taken from a final action by 
the agency dated August 20, 1984, in 
File #ASH401-84. A copy of that final 
agency decision was incorporated in the 

record of an evidentiary hearing held by 
this Court March 6, 1986, as Court's 
Exhibit #1. The EEOC determination in 
Appeal #01842738 was appended as an 
exhibit to the complaint.

The EEOC found that plaintiff had 

not timely sought EEO counselling, 

within 30 calendar days of the date of



69a
any act of discrimination alleged in the 
complaint to the agency, or, in the case 

of a personal action, within 30 calendar 
days of its effective date. See 29 

C.F.R. § 1613.214(a). The EEOC found, 

and such finding is not contested on 
judicial review, that plaintiff first 

sought EEOC counselling from the agency 
with regard to the 10 discrete matters 
at issue on April 17, 1984. The EEOC 
found that the last act of 

discrimination among the 10 allegations 
dealt with in the agency's final 

decision occurred on February 27, 1984. 
The EEOC, after finding that plaintiff's 
delay in seeking EEO counselling with 

regard to these matters (some 50 days) 

rendered her agency complaint untimely 

under 29 C.F.R. § 1613.214(a)(1)(i), 

went on to consider whether the



70a
ameliorating provisions of 29 C.F.R. § 

1613.214(a)(4)(i) and (ii) were 
applicable. The EEOC found that the 
plaintiff was aware of her right to seek 

EEO counselling, in view of her prior 

EEOC complaints that had gone through 

counselling, on to agency decision, and 
further on to EEOC review. The 

Commission rejected plaintiff's claim 
that illness precluded her from acting 

timely for want of any "documentary 
evidence" indicating that she was so ill 
that she could not act in a timely 

fashion. The EEOC also considered 
plaintiff's contention that she 

contacted the EEOC counselor within 30 
days next following her March 19, 1984 

resignation, but as the EEOC noted, none 

of the acts complained of (and which are 
the subject of the present quest for



71a

judicial review) occurred as late as 

March 19. Rather, the EEOC determined 
that the last discriminatory act 
occurred February 27, 1984.

Upon review of the file, I 

contacted Dr. Young and counsel, by 

letter dated January 6, 1986 (Docket 
Entry #5), in which I informed the 
parties that there was a serious 

question as to failure to exhaust 
administrative remedies raised by the 
facts of the case, considered in light 

of the Fourth Circuit's decision in 
Zografov v. V.A. Medical Center. 779 
F.2d 967 (1985). I furnished plaintiff 

with a copy of the Zografov decision for 

her reference. I set, in the January 6, 

1986 letter, an evidentiary hearing for 
March 6, 1986, to determine whether 

plaintiff has so failed to exhaust her



72a
administrative remedies that this case 

ought to be dismissed therefor, or 

whether the case ought to proceed on to 

the merits of her underlying claim of 

discrimination. The hearing was duly 
held on March 6, 1986. The plaintiff 

testified at length regarding her work 
history at the National Center, her 
personal circumstances, and the 

circumstances surrounding this 

particular complaint of discrimination, 
as well as several others. Counsel for 
the defense introduced several exhibits, 
but no testimony was presented for the 
defendant.

Until the Fourth Circuit's decision 

in Zoqrafov. the law was unsettled in 

this Circuit as to whether noncompliance 

with the timeliness requirement of 29 
C.F.R. § 1613.214(a)(1) deprived the



73a
district court of subject matter 

jurisdiction over the complaint.
Zografov settled the issue, holding that 

untimeliness in the administrative 

prosecution of the claim was not a 

jurisdictional defect, but, rather, was 
a matter of exhaustion of administrative 

remedies. The Fourth Circuit went on to 
hold that, as such, the exhaustion 
requirement was subject to equitable 

tolling in an appropriate case, under 
the doctrine of estoppel, against the 

Government. The court held that the 
least the court would require to 
establish an estoppel against the United 
STates is a showing of "affirmative 

misconduct on the part of the 

government...." 779 F.2d at 967. See 

also Schweiker v. Hansen. 450 U.S. 785, 
788 (1981).



74a

The Court is of the opinion that is 
not bound by the findings of the EEOC in 

the matter with regard to timeliness. 

Because the inquiry is essentially an 

equitable one, the Court must determine 
the facts as a matter of first 
impression. Taking into account the 

documentary evidence introduced at the 
March 6 hearing and the testimony of Dr. 
Young, I find as a fact that the last 

discriminatory act that is within the 
scope of plaintiff's complaint in this 
case occurred on March 11, 1984, which 
was the effective date of her 

suspension. To the extent that the EEOC 
found that the February 27, 1984 date 

was the date of the last discriminatory 

act, it erred, in view of Court's 

Exhibit 1 (the final agency action) 

showing that among her 10 allegations,



75a
the plaintiff clearly complained of a 
suspension that was to become effective 

March 11, 1984. In that the effective 

date of a personnel action is the date 
of "accrual" of a discrimination 

complaint for exhaustion purposes under 
29 C.F.R. § 613.214(a)(1), the March 11 
effective date of suspension is the date 
of the last act of discrimination 
comprehended within the administrative 
complaint at issue in this case. The 
Court finds as an uncontested fact that 
plaintiff did not seek EEO counselling 

with regard to any of the 10 allegations 
at issue until April 17, 1984. Thus, 

there was a delay beyond 30 days from 

the last act of discrimination until EEO 
counselling was sought.

Turning to the issue of equitable 
estoppel, the Court finds absolutely no



76a
indication of affirmative misconduct on 
the part of the Government. Dr. Young 
attributed the delay in seeking EEO 

Counselling to several factors. One is 
the mental stress and headaches that she 

had apparently experienced since the 
inception of what she perceives to have 

been a long course of discriminatory 

treatment at the hands of the defendant, 
starting almost as soon as she arrived 
on the job. However, she was not 
hospitalized during the period January - 
April, 1984, and there is utterly no 

indication that affirmative Government 

misconduct, in the sense used in the 
case law, accounted for Dr. Young's 

alleged tension headaches and stress.
The fact that an employee might react to 

what she perceives as discriminatory 
conduct with stress and headaches does



77a
not equate to affirmative Government 

misconduct within the meaning of the 
phrase as used in Zografov.

The plaintiff resigned from 

Government employment on March 19, 1984, 

apparently after an unsuccessful attempt 
to resolve her entire employment 
situation with supervisory personnel.

The plaintiff claims that she was under 

the impression that, after resignation, 
she no longer had any right to pursue 
any complaints, including the 10 

allegations here at issue, through EEO 

counselling or otherwise. Plaintiff 
testified that this was a general 

impression of hers, and when queried as 
to the specific sources for it, she 

identified her retained attorney and a 

co-worker (not a supervisor) who was a 
union shop steward at her place of work.



78a

it is obvious that in neither case would 

such erroneous advice from these sources 

constitute such affirmative Government 

misconduct as to stop the running of the 

30 day regulatory action period by 

equitable estoppel.
The Court recognizes that, in 

certain narrow circumstances, acts of 

continuing discrimination may form an 
exception to the timeliness requirement. 

However, the present effects of prior 
discrimination do not suffice to make 
continuing discrimination; what is 
needed is a present violation. See. 
e.q.. United Airlines v, Evans. 431 U.S. 

533 (1977). Given the March 6 hearing 

testimony, the Court cannot find any act 

of continuing discrimination that was 

effective as a personnel matter or that 
otherwise took place after March 11,



79a
1984, that alleviated the need for 
timely filing in this case. It is the 
time of the discriminatory act, not of 
its consequence, that is the key. 

Delaware State Collecre v. Ricks. 449 

U.S. 250 (1980). Thus, even if Dr. 
Young's March 19 resignation be viewed 
as an "inevitable consequence" of the 

issues raised in Agency Case #ASH401-84, 
either alone or in combination with 

prior complaints, that resignation is 
still only a consequence, not itself a 
discriminatory act, under the case law. 
Id. Therefore, the time for EEO 
counselling began to run March 11, not 
March 19.

The Court has also considered the 
equitable tolling factors listed in a 

somewhat different, but analogous, 

context by the Supreme Court in Baldwin



80a
County Welcome Center v. Brown. 466 U.S. 
147, 151 (1984) (per cuiam), one of 
which was met in this case. The 

plaintiff was represented by retained 
counsel, she was not affirmatively 

misled by anyone for whose conduct the 

Government was responsible, and, in view 
of her prior EEO complaints (see 
defendant's Exhibits 1 and 2), she 
certainly knew of EEOC counselling 

requirements governing employees seeking 

to raise complaints of discrimination in 
the federal workplace. See also Miller 
v. IT&T Coro.. 755 F.2d 20, 24 (2d Cir. 
1985).

With regard to other complaints of 

discrimination that plaintiff might have 
that predate the matters considered by 
the EEOC in Appeal #01842738, the 

plaintiff at the hearing expressed an



81a
intention to have them considered by 
this Court. The Court also notes that 
in a letter to Judge Young dated 

December 12, 1985, she had the following 
to say about those other complaints:

I have other discrimination 
complaints filed previously that are 
still pending on the decisions of Equal 
Employment Opportunities [sic]
Commission for more than a year. These 
involve within grade increase, 
performance appraisal, promotion and 
physical threat by the supervisor, etc. 
May I bring them over to this court for 
your investigation?

Although pro se complaints are to 
be liberally construed, cf. Haines v. 
Kerner, 404 U.S. 519, 520 (1972) (per 

curiam); Gordon v. Leeke. 574 F.2d 1147 
(4th Cir.), cert, denied. 439 U.S. 970 

(1978), the Court cannot construe Dr. 
Young's December 12, 1985 letter as a 

request to amend her Title VII complaint 

in this case, which was predicated only



82a
on one EEOC action and the claims 

subsumed therein. This Court, of 
course, does not investigate complaint 

but rather, is confined to judicial 
resolution, in adversary proceedings of 

contested issues of fact and law. 

Although leave to amend is to be freely 

granted under FED. R. CIV. P. 15, in 

view of the fact that at least some of 
the complaints raised in Dr. Young's 
earlier EEOC proceedings do not involve 
questions of timeliness, it would not be 
appropriate to amend the present 
complaint at this juncture, because, as 

indicated above, this complaint is 
subject to dismissal for failure to 

exhaust administrative remedies, without 

inquiry into the merits of the matters 

asserted therein. If Dr. Young wishes 

to seek judicial review of the other



83a
EEOC matters that she has pursued 

administratively, she may institute a 

proper complaint pursuant to 42 U.S.C. § 
2000e-16 in this Court, as she did with 
regard to the present case.

For the reasons stated above, and 
in accordance with the Fourth Circuit's 
ruling in Zoorafov. this Court is 

constrained to hold that the plaintiff 

has not exhausted her administrative 
remedies with regard to EEOC Case 
#01842738 and the allegations subsumed 
therein, as set forth in Agency Decision 
#ASH401-84 and, therefore, the present 
complaint must be dismissed for failure 
to exhaust administrative remedies. A



84a
separate order will be entered so 

providing.

Frederic N. Smalkin 
United States Magistrate

Dated: March 7th, 1986



85a

U.S. EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION 
Washington, D.C. 20507

Dr. Lih Y. Young )
Appellant, )

) Appeal No.
v. ) 01842738

) Agency No.
Department of Health) ASH-401-84

Human Services )
Agency. )

DECISION

INTRODUCTION

Dr. Lih Y. Young (hereinafter 
referred to as appellant) initiated an 
appeal dated September 11, 1984, from 

the final agency decision dated August 
20, 1984, of the Department of Health 

and Human Services (hereinafter referred 
to as agency) rejecting her complaint of 

discrimination based on national origin 

(Chinese) and reprisal (previous EEO



86a
complaint) for untimeliness. The appeal 

was brought under Title VII of the Civil 
Rights Act of 1964, as amended 42 U.S.C. 

§2000e et sea. There appears to be a 

question as to whether appellant's 
initiation of this appeal was timely. 

However, given that there is no evidence 
indicting when appellant received the 

final agency decision, the Commission 
presumes five days delivery time from 
the date of decision. Therefore, 

appellant's appeal is accepted for 
decision by the Commission in accordance 
with EEOC Order No. 960, as amended.

BACKGROUND
The record reflects on April 17, 

1984, appellant contacted an EEO 
Counselor regarding alleged acts of 

discrimination by the agency. On April



87a
18, 1984, appellant filed an informal 

complaint of discrimination based on 
national origin (Chinese) and reprisal 
(previous EEO complaint). The EEO 

Counselor was unable to resolve the 

matter, and on June 19, 1984, appellant 
filed a formal complaint based on the 

above legal allegations. Additionally, 
appellant made factual allegations 
concerning ten (10) acts of 
discrimination and/or reprisal which 
occurred between January 23, 1984, and 

February 27, 1984. On August 20, 1984, 
the agency issued a final decision 

rejecting appellant's complaint because 
she failed to bring her allegations to 

the attention of an EEO Counselor in a 
timely manner.

ANALYSIS AND FINDINGS



88a
The issue in this case is whether 

appellant brought to the attention of an 
EEO Counselor her allegation of 

discrimination in a timely manner. 

According to EEOC Regulation 29 C.F.R. 
§1613.214 (a) (1) (i), a complainant must 
bring to the attention of an EEO 

Counselor the matter causing [her] to 
believe [she] had been discriminated 
against within 30 calendar days of the 

date of that matter or, if a personnel 
action, within 30 calendar days of its 
effective date. In the instant case, 
the record shows that appellant actually 

brought to the attention of the EEO 

Counselor matters causing her to believe 

she was discriminated against, on April 

17, 1984. The Counselor's Report shows 
that the alleged discriminatory actions 

all occurred between January 23, 1984



89a
and February 27, 1984. In view of the 

facts, the Commission holds that the 
last discriminatory act occurred on 

February 27, 1984, some 50 days prior to 

appellant's contact with the EEO 

Counselor. Therefore, we agree with the 
agency's decision that appellant failed 
to contact the EEO Counselor in a timely 
manner.

The Commission notes here that on 
appeal, appellant stated her belief that 
the time limit for contacting the EEO 
Counselor should be extended in this 
case because when was ill and unaware of 

her EEO rights. She further stated that 

she sought EEO counseling within 30 days 

of her March 19, 1984, resignation from 
the agency. The Commission advises 

appellant that EEOC regulation 29 C.F.R. 

§1613.214(a)(4), provides that the



90a
agency shall extend the time limits:

(i) When the complainant shows that 
[she] was not notified of the time 

limits and was not otherwise aware 

of them, or that [she] was 

prevented by circumstances beyond 
[her] control from submitting the 
matter within the time limits; or
(ii) for other reasons considered 

sufficient by the agency.
In view of the above Regulations, 

the Commission must reject appellant's 
contentions on appeal because she failed 
to produce any documented evidence 
indicating that she suffered an illness 

during the time period of the alleged 

acts of discrimination, which prevented 

her from submitting the matter(s) within 
the time limit. Further, we do not 

accept appellant's assertion that she



91a
was not aware of her rights, because the 
record shows that she was involved in 

previous EEO activity. Finally, the 

Commission agrees with appellant's 

assertion that she contacted the EEO 
Counselor within 30 days of their 

resignation, however, as we pointed out 
above, the actions she complained of 
occurred 50 days prior to her contact. 
Thus, the Commission holds that 
appellant failed to contact the EEO 
Counselor in a timely manner.

CONCLUSION
Based on a review of the record, it 

is the decision of the Equal Employment 
Opportunity Commission to affirm the 

rejection of appellant's complain for 
the reasons stated herein.



92a
NOTICE OF RIGHT TO FILE A CIVIL ACTION 

Pursuant to 29 C.F.R. §1613.282, 
the appellant is hereby notified that 
this decision is final and that he or 

she has the right to file a civil action 
on the Title VII claim in the 

appropriate U.S. District Court within 
thirty (30) days of the date of receipt 
of this decision.

APPOINTMENT OF COUNSEL 

If appellant elects to file a civil 
action and does not have or is unable to 

obtain the services of an attorney to 
acts as his or her counsel, appellant 

may request that the Court appoint an 

attorney for purposes of the civil 

action. The Court in its discretion may 
appoint an attorney to represent



93a
appellant and authorize commencement of 

the action without the payment of fees, 

costs, or security. A request for the 
appointment of counsel must be filed 

with the Court within the time limit for 
filing a civil action.

NOTICE OF RIGHT TO REQUEST REOPENING 
The appellant and the agency are 

hereby notified that the Commissioners 
may, in their discretion, reopen and 
reconsider any previous decision when 

the party requesting reopening submits 
written argument or evidence which tends 
to establish that:

1. New and material evidence is

available that was not readily 

available when the previous 
decision was issued;



94a
2. The previous decision involves an 

erroneous interpretation of law or 

regulations or misapplication of 
established policy; or

3. The previous decision is of 

precedental nature involving a new 
or unreviewed policy consideration 

that my have effects beyond the 
actual case at hand or is otherwise 
of such an exceptional nature as to 
merit the personal attention of 
the Commissioners.

This notice is in accord with 29 C.F.R. 

§1613.235. As provided therein, agency 

requests to reopen must be filed within 

30 days from the date of receipt of this 
decision.



95a

FOR THE COMMISSION
5-3-85_____  ________________
Date Dolores L. Rozzi,

Director
Office of Review 

and Appeals



96a
August 20, 1984

REGISTERED MAIL, RETURN RECEIPT 
REQUESTED

Dr. Lih Y. Young 
1121 Pipeston Place 
Rockville, MD 20854

Dear Ms. Young:

This letter is to inform you of the 
Department1s decision concerning the 

complaint of discrimination based on 
national origin (Chinese) and a 

complaint of reprisal for having 
previously filed an EEO complaint, which 
you filed on June 19, 1984 against the 

Office of the Assistant Secretary for 
Health (OASH).

Issue/Alleaation No. 1 

You alleged that, because of you 

national origin you received a letter of 
admonishment on January 23, 1984.



97a

Issue/Alleqation No. 2 
You alleged that, because of your 

national origin, you received an 

official reprimand on February 1, 1984.

Issue/Alleqation No. 3

You alleged that, in reprisal for having 
previously filed an EEO complaint, you 
received an official reprimand on 
February 1, 1984.

Issue/Alleqation No. 4 

You alleged that, because of your 

national origin, you received on March 

9, 1984, a decision to suspend you from 
government employment during the period 
of March 11, through 17, 1984.



98a
Issue/Alleaation No. 5
You alleged that, in reprisal for having 
previously filed an EEO complaint, you 

received on March 9, 1984, a decision to 

suspend you from government employment 

during the period from March 11 through 
17, 1984.

Issue/Alleaation No. 6 
[ILLEGIBLE]

Issue/Alleaation No. 7

You alleged that in reprisal for having 
previously filed an EEO complaint, you 
were denied eighty (80) hours of sick 

leave which was to be used during the 

period of February 27 through March 9, 
1984.

Issue/Alleaation No. 8



99a
You alleged that, because of your 

national origin, you were denied a 
within-grade salary increase upon 
reconsideration on February 17, 1984. 

Issue/Alleqation No. 9

You alleged that, in reprisal for having 
previously filed an EEO complaint, you 
were denied a within-grade salary 

increase upon reconsideration on 
February 17, 1984.

Issue/Alleqation No. 10 
You alleged that, because of your 

national origin, you received an 
unsatisfactory performance appraisal on 
January 24, 1984 for the period of 

January 1, 1983 through December 31, 
1983.

The final EEO Counseling Report reflects



100a
that you initially contacted an EEO 
counselor concerning these matters on 
April 17, 1984.

Under the provisions of Title 29, Code 
of Federal Regulations, Section 1613.214 

(29 CER 1613.214), a complaint must be 
brought to the attention of an EEO 

counselor within thirty (30) calendar 

days of the date of the incident which 
gave rise to the complaint for the 
purpose of attempting informal 

resolution. Otherwise, the complaint is 
subject to rejection under the 

provisions of 29 CER 1613.215.

Inasmuch as you failed to bring the 

above issue/allegations to the attention 
of an EEO counselor in a timely manner



101a
your complaint is subject to rejection.

DECISION
Accordingly, it is the decision of the 

Department of Health and Human Services 

to reject, under the provisions of 29 
CFR 1613.214-215, your complaint of 
discrimination based on national origin 

and your complaint of reprisal, because 
of untimeliness.

If you are dissatisfied with this 
decision, you may write a written notice 
of appeal, in duplicate, to the Equal 
Employment Opportunity Commission, 

Attention: Office of Review and

Appeals, 2401 E Street, N.W.,

Washington, D.C. 20506; and in 

accordance with 29 CFR 1613, Section 
233, which states:



102a

(a) Except as provided in 

paragraph (b) of this action, 

a complainant may file a 
notice of appeal at any time 

up to 20 calendar days after 
receipt of the agency's notice 

of final decision on his or 

her complaint. Any statement 
or brief in support of the 
appeal must be submitted to 

the Commission and to the 

defendant agency within (30) 
calendar days of filing the 
notice of appeal.

(b) The 20-day time limit within 

which a notice of appeal must 

be filed will not be extended 
by the Commission unless,



103a
based upon a written showing 

by the complainant that he or 
she was not notified of the 
prescribed time limit and was 

not otherwise aware of it or 

that circumstances beyond his 

or her control prevented the 

filing of a notice of approval 
within the prescribed time 
limit, the Commission 
exercises its discretion to 

extend the time limit and 
accept the appeal.

If you have alleged age discrimination, 
you may file a civil action in an 
appropriate U.S. District Court at 

anytime within 180 calendar days of the 

unlawful age discriminatory action, 
provided that the Equal Employment



104a

Opportunity Commission (EEOC) is given 

30 calendar days advance notice of the 
intent to file a civil action. If you 

wish to appeal this decision to EEOC, 
the appeal decision will give notice of 

all further rights of review and appeal 

under the Age Discrimination in 
Employment Act.

If the complaint is based on allegations 
other than age discrimination, you have 
the alternative of seeking judicial 
relief by filing a civil action in an 

appropriate U.S. District Court within 
thirty (30) calendar days after receipt 
of the agency's notice of final 

decision. Please note: If you file a 
notice of appeal with the Commission, 

the right to file a civil action will be 

preserved. In that case, you may file a



105a
civil action within thirty (30) calendar 
days after receipt of the Commission's 

decision or you may file a civil action 

if the Commission has not issued its 

decision (30) calendar days after 
receipt of the Commission's decision or 

you may file a civil action if the 
Commission has not issued its decision 

or you may file a civil action if the 
Commission has not issued its decision 

(30) calendar days after the date on 
which the Office of Review and Appeals 
accepted the appeal.

If you elect to file a civil action, you 

are advised that you may apply to, U.S. 

District Court for appointment of an 
attorney to represent you in any court 

providing relating to this decision.

The court may appoint an attorney to



106a
represent you and may permit 

commencement of a court action without 

payment of fees, costs, or security. 

Sincerely,

/s/Thomas S. McFee
Thomas S. McFee 
Director
Equal Employment 

Opportunity

cc: Samuel Hoston, Director, DCAM
Dan Hordon, Deputy Director, 
Equal Employment, EEO 
Caroline Pike



ENTRY OF APPEARANCE
Robert B. Fitzpatrick, Esq., a 

member of the Bar of the United States 
Supreme Court, hereby enters his 

appearance as counsel of record on 

behalf of petitioner Lih Y. Young.

FITZPATRICK & VERSTEGEN 
Spring Valley Center 
4801 Massachusetts Avenue, N.W. 
Washington, D.C. 20016

(202) 364-8710



CERTIFICATE OF SERVICE
I, Robert B. Fitzpatrick, hereby 

certify that on this 26th day of 

December 1989, I caused to be served 

three copies of the foregoing Petition 
for Writ of Certiorari and Entry of 

Appearance, by depositing said copies in 
a United States mailbox, with first 
class postage prepaid and addressed as 
follows:

Solicitor General
Office of the General Counsel
Washington, D.C. 20530
Timothy M. White, Esq.
Office of the General Counsel 
U.S. Department of Health and 

Human Services
330 Independence Avenue, S.W.
Washington, D.C. 20201

Robert B.Fitzpatrick