Artis v. Bernanke, 09–5121.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation630 F.3d 1031
Docket NumberNo. 09–5121.,09–5121.
PartiesCynthia ARTIS, et al., Appellantsv.Ben S. BERNANKE, Chairman of the Board of Governors of the Federal Reserve System, Appellee.
Decision Date11 January 2011

630 F.3d 1031
111 Fair Empl.Prac.Cas.
(BNA) 300
94 Empl. Prac. Dec. P 44,078
394 U.S.App.D.C.

Cynthia ARTIS, et al., Appellants
Ben S. BERNANKE, Chairman of the Board of Governors of the Federal Reserve System, Appellee.

No. 09–5121.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 14, 2010.Decided Jan. 11, 2011.

[630 F.3d 1032]

Appeal from the United States District Court for the District of Columbia (No. 1:01–cv–00400).Walter T. Charlton argued the cause and filed the briefs for appellants.Kenneth M. Willner argued the cause for appellee. With him on the brief were Richard M. Ashton and Katherine H. Wheatley, Associate General Counsel, Board of Governors of the Federal Reserve System, and John L. Kuray, Senior Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.Before: BROWN, GRIFFITH and KAVANAUGH, Circuit Judges.Opinion for the Court filed by Circuit Judge BROWN.BROWN, Circuit Judge:

Appellants are members of a putative class of secretaries employed currently and formerly by the Federal Reserve Board. They claim the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court dismissed the complaint for failure to exhaust administrative remedies. Because we conclude the secretaries completed informal counseling in a manner sufficient to give the Board an opportunity to investigate their claims, we vacate the district court's dismissal of their complaint.


Some of these secretaries appeared before us in 1998 when we affirmed the district court's dismissal of their first putative class action without prejudice, due to their failure to exhaust administrative remedies. Artis v. Greenspan ( Artis I ), 158 F.3d 1301, 1306–08 (D.C.Cir.1998). Board regulations provide that “[a]ggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or disability must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.” 12 C.F.R. § 268.104(a). In Artis I, we held the putative class failed to complete counseling before bringing their claims of agency-wide discrimination. The would-be class agents, who were all employed in a single division of the Board, had failed to “identify any agency-wide discriminatory personnel practices” in counseling. 158 F.3d at 1308. Instead, “[t]he four named complainants only addressed Board-wide complaints by way of asking for data on other secretaries.” Id. at 1307.

While the Board's motion to dismiss was pending in Artis I, the same putative class initiated a new round of counseling—this time represented by secretaries employed throughout the Board.1 The Board's

[630 F.3d 1033]

Equal Employment Opportunity (“EEO”) counselors held group counseling sessions on January 15 and February 13, 1997, attended by several of the secretaries and their counsel. No contemporaneous record of the group counseling sessions exists.

On January 17, 1997, in response to the Board's request for information at the January 15 group counseling session, the secretaries submitted fourteen identical copies of a document entitled “Resubmission of Class–Action Complaint.” In that document, the secretaries alleged “a systematic and pervasive pattern of discrimination against African–American ... secretaries” by the Board. In particular, the secretaries claimed the Board paid them lower salaries than non-minority secretaries, awarded them fewer and smaller bonuses, granted them fewer promotions, deflated their performance appraisals, denied them privileges and training that non-minority secretaries enjoyed, unfairly enforced leave procedures against them, and discriminated against them in the quantity and quality of work assignments.

Between approximately January 24 and February 18, 1997, the Board's counselors met individually with nine secretaries, including six who are named plaintiffs in this case. In the individual counseling sessions, the secretaries confirmed the general allegations in the “Resubmission,” and some of them alleged specific instances of discrimination from personal experience. The EEO counselors prepared reports based on the notes they took in these individual counseling sessions.

The secretaries filed their administrative complaint with the Board on March 3, 1997, and it wound its way through the adjudicatory functions of the Board and the U.S. Equal Employment Opportunity Commission (“EEOC”) without success.2

After we issued our decision in Artis I, the secretaries filed the underlying complaint in the district court.3 As in Artis I, the Board moved to dismiss for failure to exhaust administrative remedies. The district court denied the motion and ordered discovery on the issue of exhaustion-specifically “whether plaintiffs have satisfied their obligation to engage in counseling” and whether “the administrative counseling process was a futile exercise.” Artis v. Greenspan, 223 F.Supp.2d 149, 155 (D.D.C.2002).

Following five years of contentious discovery, the Board renewed its motion to dismiss in 2005. The district court granted the motion on January 31, 2007, holding the court lacked subject matter jurisdiction

[630 F.3d 1034]

over the secretaries' claims because, as in Artis I, the secretaries had failed to exhaust the counseling requirement. Artis v. Greenspan, 474 F.Supp.2d 16, 19 (D.D.C.2007).4

The secretaries filed a motion for reconsideration, repeating their argument that they had successfully completed counseling in the group and individual sessions, and proffering for the first time the declaration of secretary Kim Hardy, who recounted her ten-year-old recollection of the January 15, 1997 group counseling session. Dist. Ct. Docket No. 72. The district court denied the motion, holding Hardy's declaration was not “new evidence” under the standard governing a Rule 59(e) motion to alter or amend the judgment. Artis v. Bernanke, 256 F.R.D. 4, 6 (D.D.C.2009). The secretaries appealed.

“A challenge to a dismissal for lack of administrative exhaustion is a question of law, which this court reviews de novo.Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800, 807 (D.C.Cir.2010).


Title VII protects government employees, like private employees, from personnel actions that discriminate on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–16(a). To bring a civil action in federal court under this section, an employee must first be “aggrieved by the final disposition of his [administrative] complaint, or by the failure to take final action on his complaint.” Id. § 2000e–16(c). Federal Reserve Board regulations modeled on the EEOC's regulations require Board employees to “consult a Counselor ... in order to try to informally resolve the matter” before filing an administrative complaint. 12 C.F.R. § 268.104(a); see 29 C.F.R. § 1614.105(a). If the employee intends to file a class action, she must satisfy the counseling requirement on behalf of the class. See 12 C.F.R. § 268.204(b). “If a complainant forces an agency to dismiss or cancel the complaint by failing to provide sufficient information to enable the agency to investigate the claim, [s]he may not file a judicial suit.” Wilson v. Peña, 79 F.3d 154, 164 (D.C.Cir.1996). The district court concluded the secretaries failed to satisfy this counseling requirement because they “declined to cooperate with the Board by failing to provide any meaningful information about specific instances of discrimination.” Artis, 474 F.Supp.2d at 19. We disagree.


The purpose of EEO counseling is clear from the text of the regulation: Counseling is designed to enable the agency and its employee “to try to informally resolve the matter” before an administrative charge is filed. 12 C.F.R. § 268.104(a), quoted in Artis I, 158 F.3d at 1306; see Wilson, 79 F.3d at 165 (“The purpose of the [administrative exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.”); see

[630 F.3d 1035]

also Blackmon–Malloy v. United States Capitol Police Bd., 575 F.3d 699, 711–12 (D.C.Cir.2009) ( “[U]nlike agency exhaustion in other contexts, the purposes of counseling and mediation are not to compile a record for judicial review but instead simply to afford the employee and the employing office an opportunity to explore and possibly resolve the employee's claims informally.” (describing a similar counseling requirement in the Congressional Accountability Act)).

Where counseling produces “sufficient information to enable the agency to investigate the claim,” that purpose has been served. Artis I, 158 F.3d at 1306 (quoting Wilson, 79 F.3d at 164). Thus, we recognized that “where a complainant has pleaded a nonpromotion claim to the agency, it is not her responsibility to identify the positions for which she applied.” Id. at 1308 (citing Mangiapane v. Adams, 661 F.2d 1388 (D.C.Cir.1981) (per curiam)). To hold otherwise would turn the informal counseling requirement into a trap for unwary counselees rather than a step toward remediation, and it would violate the principle that “Title VII's exhaustion requirement should not be read to create useless procedural technicalities.” President v. Vance, 627 F.2d 353, 362 (D.C.Cir.1980).

An agency risks misusing the counseling requirement when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination. Unlike an allegation of overt harassment or a specific instance of retaliation against an individual employee, class-wide claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by a statistical comparison of the employer's treatment of the class to its treatment of non-minority employees. See...

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