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Argued November 17, 2009

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Richard Miller, a former employee of the National Transportation Safety Board (NTSB or Board), appeals the district court’s judgment in his employment discrimination suit. Miller v. Rosenker, 578 F. Supp. 2d 107 (D.D.C. 2008). Miller challenges the district court’s decision insofar as it (1) granted summary judgment on Count I and Count II alleging discriminatory non-promotion on the ground that he failed to timely seek equal opportunity employment counseling from the Board and (2) dismissed Count III alleging discriminatory treatment on the ground Miller conceded arguments the Board raised in support of dismissal. Because genuine issues of material fact exist regarding Count I and Count II, we reverse the summary judgment on each. We also reverse the court’s dismissal of Count III because Miller did not, as the district court concluded, concede arguments raised by the NTSB.

 
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