Artis v. Greenspan

Decision Date20 October 1998
Docket NumberNo. 97-5235,97-5235
Citation332 U.S.App.D.C. 395,158 F.3d 1301
Parties78 Fair Empl.Prac.Cas. (BNA) 74, 332 U.S.App.D.C. 395 Cynthia ARTIS, et al., Appellants, v. Alan GREENSPAN, Chairman, The Board of Governors of the Federal Reserve System,Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 96cv02105).

Richard T. Sampson argued the cause for appellants. With him on the briefs was Walter Theodore Charlton.

Richard M. Ashton, Associate General Counsel, Board of Governors of the Federal Reserve System, argued the cause for appellee. With him on the brief were James V. Mattingly, Jr., General Counsel, and Gerald S. Hartman.

Before: WALD and TATEL, Circuit Judges and BUCKLEY, Senior Circuit Judge.

WALD, Circuit Judge:

The four named plaintiffs in this case, all African-American secretaries working for the Legal Division of the Federal Reserve Board ("Board"), first brought their individual claims of race discrimination to their employer's attention in early 1995. As they forded the administrative process, they insisted at various points that their complaints covered discriminatory practices permeating all of the Board's divisions, and in August 1995, they amended their administrative complaint to allege a status as class agents on behalf of all the Board's African-American secretaries. Almost a year later, the Board dismissed their class complaint on the ground that the four agents had failed to present class-wide claims during the Board's mandatory Equal Employment Opportunity ("EEO") counseling process. The would-be class agents then filed this class complaint in federal district court. The Board moved to dismiss the complaint under FED.R.CIV.P. 12(b)(1) on the ground that the plaintiffs had failed to exhaust their administrative remedies. The district court granted the motion, and the plaintiffs appealed. 1

The plaintiffs' primary argument is that they did exhaust their administrative remedies because they placed the Board "on notice" during the counseling period that they intended to pursue class claims. And, they continue, even if they were not successful in presenting the substance of their class-wide issues to the EEO Counselor, it was only because the Board itself prevented them from doing so. We conclude that plaintiffs did not raise their class complaints with the EEO Counselor and that the fault for this did not lie with the Board. We therefore affirm the district court's dismissal of the class complaint.

I.

Plaintiffs' arguments against dismissal on exhaustion grounds are quite fact-specific, so it is necessary to set out the relevant facts at some length.

A. The Beginning

In January 1995, Cynthia Artis, Sharon Logan and Sharon Ellis, three of the four putative class agents in this case, filed a complaint with their EEO Counselor, charging race discrimination in the way the Legal Division meted out cash awards, performance ratings, and merit pay increases. By the end of the counseling period, Kimberly Hardy, the fourth plaintiff here, had joined in the charges of the other three. Counseling is required by Board regulations: "Aggrieved persons who believe they have been discriminated against on the basis of race ... must consult an EEO Counselor prior to filing a complaint in order to try to informally resolve the matter." 12 C.F.R. § 268.204(a) (1995). After counseling, "The Board shall dismiss a complaint or portion of a complaint: ... (2) ... that raises a matter that has not been brought to the attention of an EEO Counselor and is not like or related to a matter that has been brought to the attention of an EEO Counselor." Id. § 268.206(a).

B. The First Complaint

On March 17, 1995, after counseling was completed, the four women filed a "class action discrimination complaint based on race" with the Board against the "Legal Division of the Federal Reserve." A month later, Artis wrote a letter to an EEO officer at the Board requesting data on all secretaries working throughout the Board including the distribution of cash awards, starting salaries, and performance ratings. The information was sought "[i]n order to determine if the class action complaint we have filed with the EEOC adequately meets the requirements of a class...." Sheila Clark, the EEO Programs Director at the Board, responded that the Board's regulations did not authorize the disclosure of such data unless or until the Administrative Law Judge ("ALJ") assigned to hear the complaint requested it.

On July 24, 1995, the ALJ formally requested additional information from the four secretaries before recommending acceptance or rejection of the class element of the complaint. In essence, the ALJ asked the complainants to submit any material specifically relevant to the four requirements for class certification--typicality, commonality, numerosity, and adequacy of representation. See 29 C.F.R. § 1614.204(a)(2) (1995). The ALJ did not request any information from the Board.

C. The First Amended Complaint

The four secretaries responded on August 7 by obtaining counsel and filing a "First Amended Complaint" with the Board. In this complaint, the secretaries purported to represent "all African-American secretarial employees at the Board of Governors of the Federal Reserve System grade 33 to 36 and exempt secretaries, from grade 21 to 25, for which equivalent G/S levels are currently unknown." Although the document did make generalized accusations of discrimination against the entire Board, the only detailed charges concerned the secretaries at the Legal Division, who were the only named class agents. In a separate letter, the complainants' counsel provided the ALJ with names of eight potential class members in other divisions. Counsel did not set forth which alleged discriminatory practices or policies affected these other secretaries and declined to provide more information, citing the Board's earlier refusal to provide statistics on secretaries working throughout the Board. The Board responded with a request that the claims be dismissed, charging that the new complaint impermissibly expanded the class to include members whose claims of discrimination had not been discussed at the counseling stage, as well as new allegations of discriminatory behavior in failure to train, failure to promote, maintenance of segregated facilities, and reprisal that had not been raised in counseling.

D. Counseling

On September 25, 1995, the ALJ determined that, in light of the new complaint, the case should be remanded for further EEO counseling. See 29 C.F.R. § 1614.204(d)(3) (1995). The ALJ directed Clark, the Board's EEO Programs Director, to conduct counseling "with regard to the expanded class and issues not previously counseled" and to complete the counseling within the parameters of § 1614.105 (providing for 30 days of counseling unless parties agree to extend the period). Communication, however, broke down between the complainants and their EEO Counselor, Millie Wiggins, and on October 12 the four secretaries sent a letter to the ALJ asking for written clarification of the issues that should be the subject of post-remand counseling. This confusion appears to have stemmed from the new allegations of retaliation about which Artis informed the EEO Counselor during an October 2 counseling session. Two former secretaries from other divisions of the Board, who were named in counsel's August 7 letter but not in the First Amended Complaint, were claiming that they had been retaliated against for taking time off work to which they were entitled, and the counselor was unsure whether these two women should be allowed to take part in counseling at the request of the named class agents. Before the ALJ responded to the complainants' letter, Wiggins apparently decided to contact the two secretaries, Crystal Clay Wilson and Linda Proctor. On October 25, Wiggins sent letters notifying them to contact her for counseling by November 2, 1995--the last day of the counseling period. Both submitted, through Artis, "Statement[s] of Reprisal" setting forth their allegations

On November 14, Wiggins submitted a final counseling report to Clark. The report includes notes that during an October 6 meeting, the four complainants requested "five data sets that they feel will enable them to name other members of the class action suit." According to the report, the four would-be class agents "stated that they could not name other members of the class until they obtain certain information. Names previously given to [Wiggins] were retracted except for Ms. Wilson and Ms. Proctor."

E. Further Counseling on Class Issues

Before Wiggins sent the November 14 report to the ALJ, the ALJ responded on November 8 to the complainants' request for clarification of the scope of counseling: "At a minimum, EEO counseling should address: the expanded class; training; assignment of positions; segregated facilities; distribution of work; promotion; and reprisal." Subsequently, Wiggins tried to contact the eight members of the expanded class and issued a second counseling report on December 4. 2

This December 4 counseling report is particularly important because it is the only document outlining the Board's repeated efforts to contact secretaries who worked or had worked for the Board outside of the Legal Division. According to the report, three women on the outside (including Wilson, who apparently did not forward a working telephone number to the EEO Counselor when Artis submitted her statement) were unreachable because of incorrect or unavailable telephone numbers; one woman did not respond to offers of an interview; two women declined to take part in counseling because they had been told by Artis' lawyer that the time for counseling had expired; one woman, Proctor, said she thought her issues were distinct from those of the class; 3 and one woman declined to participate. Both...

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