Cook v. Boorstin
| Decision Date | 07 June 1985 |
| Docket Number | No. 84-5429,84-5429 |
| Citation | 246 U.S.App.D.C. 201,763 F.2d 1462 |
| Parties | 37 Fair Empl.Prac.Cas. 1777, 37 Empl. Prac. Dec. P 35,313, 246 U.S.App.D.C. 201, 2 Fed.R.Serv.3d 733 Howard R.L. COOK, individually and on behalf of the Black Employees of the Library of Congress, et al., v. Daniel J. BOORSTIN, Librarian of Congress, Roland Grayson, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Marc L. Fleischaker, Washington, D.C., with whom Gary S. Marx and Kerry Alan Scanlon, Washington, D.C., were on the brief, for appellants.
John W. Polk, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., and Lana Kay Jones, Asst. Gen. Counsel, Library of Congress, Washington, D.C., were on the brief, for appellees.
Before ROBINSON, Chief Judge, MIKVA and GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge MIKVA.
This is an appeal by thirty-one black employees and former employees of the Library of Congress, challenging the district court's refusal to allow them to intervene in a Title VII class action brought against the Library. We agree with appellants that our decision in Foster v. Gueory, 655 F.2d 1319 (D.C.Cir.1981), requires reversal of the district court's order.
In 1975, Howard Cook, David Andrews, and an organization called the Black Employees of the Library of Congress ("BELC") filed a class action administrative complaint alleging racially and sexually discriminatory employment practices throughout the Library. The Library's final decision, issued more than six years later, concluded that the "investigative file does not support the allegations of discrimination."
In February 1982, Cook and the BELC filed a Title VII class action complaint in the district court. Four months later they filed an amended complaint narrowing their allegations; specifically, they charged that the Library systematically discriminated against its black professional and administrative employees in making promotion and advancement decisions. At the same time, six black Library employees sought to intervene as plaintiffs and additional class representatives. The proposed amended complaint incorporated the claims of the six applicants for intervention and charged the Library with, inter alia, basing promotion decisions on "unvalidated tests which disqualify a disproportionate number of minority and female employees" and on "unchecked, unvalidated subjective recommendations of supervisory personnel."
In late 1983, the district court allowed all six employees to intervene. The court found that two of the employees, who had filed separate administrative complaints, were entitled to intervene of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure. Rule 24(a)(2) requires the district court to grant a timely filed application for intervention whenever
the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
As to the other four applicants, the court found that intervention of right was unavailable, but nonetheless exercised its discretion to allow permissive intervention under Rule 24(b)(2). That subsection states that a court "may" grant a timely motion to intervene if "an applicant's claim or defense and the main action have a question of law or fact in common." The court also granted leave to file the amended complaint, but denied the plaintiffs' motion for class certification. Plaintiffs moved for reconsideration.
While the motion for reconsideration was pending, the thirty-one appellants in this action filed their motion to intervene. All are or were employed in administrative or professional positions at the Library, and all claim to have been discriminated against in promotion or advancement because they are black. Like the original plaintiffs in the action and the six intervenors, the thirty-one applicants alleged that they had been victimized by systematic discrimination in the Library's personnel practices. In individual affidavits filed with a second proposed amended complaint, each of the applicants claimed experience with the Library's personnel system "very similar" to the claims raised by the plaintiffs.
In June 1984, the district court nonetheless denied the intervention motion. The court's terse order commented only that "the four criteria for intervention under Rule 24(a) have not been satisfied and ... intervention under Rule 24(b) would subject defendant to undue prejudice and unduly delay the adjudication of the rights of the parties."
On the same date, the district court granted the plaintiffs' motion for reconsideration of the denial of class certification. Instead of certifying the class as requested by plaintiffs, however, the court created six narrow subclasses defined to match closely the particular facts alleged by six of the named plaintiffs. It is unclear which, if any, of the appellants would have fit within any of the subclasses. In any event, counsel informed this court at oral argument that the district court subsequently decertified all but one of the subclasses, retaining class representation only for those black employees who were allegedly not promoted because of the Library's failure to post certain job openings. Although this subclass contains close to 400 members, it apparently does not include any of the appellants. Since many of the appellants never perfected their claims by timely filing of individual administrative complaints, the district court's denial of their motion to intervene effectively precluded them from obtaining any judicial relief for the wrongs they alleged.
We do not reach appellants' challenge to the district court's discretionary denial of permissive intervention to the thirty-one appellants, because we agree with appellants that our decision in Foster v. Gueory, 655 F.2d 1319 (D.C.Cir.1981), required the district court to grant them intervention of right. In Foster, four union members sued their union and several employers under Title VII, alleging racial discrimination in matters relating to employment as pile drivers. After the district court refused to certify the suit as a class action brought on behalf of all minority victims of racial discrimination with respect to employment as pile drivers, three persons moved to intervene as additional plaintiffs. They alleged that their experience differed from that of the four original plaintiffs only in that racial discrimination had prevented the three movants from even obtaining union membership or apprenticeship training. The district court denied intervention for failure to exhaust administrative remedies, and the movants appealed.
This court reversed, ruling first that the claims raised by the plaintiffs and intervenors were all so similar that the administrative complaint pursued by one of the original plaintiffs had satisfied the exhaustion requirement for the would-be intervenors as well, and second that the three appellants were entitled to intervene of right under Rule 24(a)(2). The court's reasoning in Foster applies fully to the case at hand.
A. Exhaustion. Before bringing a civil action under Title VII, a plaintiff must generally exhaust his or her administrative remedies. See, e.g., United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 1887 n. 4, 52 L.Ed.2d 571 (1977); Kizas v. Webster, 707 F.2d 524, 543 (D.C.Cir.1983). Along with other circuits, this court has allowed the exhaustion requirement to be satisfied vicariously under certain circumstances. See Foster, 655 F.2d at 1321-22. Although most of the thirty-one appellants failed to file timely complaints with the Library's Equal Employment Office, the district court did not mention exhaustion when denying intervention, and the Library has raised the exhaustion issue on appeal only obliquely. Part of the explanation for the Library's reticence may be the district court's earlier ruling on exhaustion with respect to the six employees allowed to intervene. Four of those employees had not filed administrative charges, but the district court held that, under Foster v. Gueory, the exhaustion requirement was satisfied for those employees by the administrative class action filed by Cook and the BELC. We think that determination was correct, and for the same reason we find that the failure by some of the appellants to file individual administrative complaints does not bar their intervention in this action.
The test set forth in Foster for vicarious exhaustion hinges on functional identity of claims:
It thus appears that the critical factor in determining whether an individual Title VII plaintiff must file an [administrative] charge, or whether he may escape this requirement by joining with another plaintiff who has filed such a charge, is the similarity of the two plaintiffs' complaints. Where the two claims are so similar that it can fairly be said that no conciliatory purpose would be served by filing separate [administrative] charges, then it would be "wasteful, if not vain" ... to require separate ... filings. However, where the two complaints differ to the extent that there is a real possibility that one of the claims might be administratively settled while the other can be resolved only by the courts, ... each plaintiff should be required to separately file ... [a] charge in order to effectuate the purpose of Title VII's provisions for administrative relief.
655 F.2d at 1322 (emphasis added).
Although the specific circumstances giving rise to the grievances of each of the plaintiffs and would-be intervenors in this case are distinguishable, each of the employees...
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