Blackmon-Malloy v. U.S. Capitol Police Bd.

• Citation: 575 F.3d 699
• Decision Date: 31 July 2009
• Docket Number: No. 07-5321.,No. 07-5322.,No. 07-5320.,07-5320.,07-5321.,07-5322.
• Parties: Sharon BLACKMON-MALLOY, et al., Appellants v. UNITED STATES CAPITOL POLICE BOARD, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

575 F.3d 699

Sharon BLACKMON-MALLOY, et al., Appellants v. UNITED STATES CAPITOL POLICE BOARD, Appellee.

No. 07-5320.

No. 07-5321.

No. 07-5322.

United States Court of Appeals, District of Columbia Circuit.

Argued May 8, 2009.

Decided July 31, 2009.

Appeals from the United States District Court for the District of Columbia (No. 01cv02221).

Lenore C. Garon argued the cause for appellants. With him on the briefs were Joseph D. Gebhardt and Charles W. Day, Jr.

Peter Ames Eveleth, General Counsel, and William Wachter, Attorney, were on the brief for amicus curiae Office of Compliance in support of appellants.

Harry B. Roback, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney. Frederick M. Herrera, Attorney, United States Capitol Police Board, entered an appearance.

Before SENTELLE, Chief Judge, GINSBURG and ROGERS, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

In the Congressional Accountability Act of 1995 ("the CAA"), 2 U.S.C. § 1301, et seq., Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other remedial federal statutes, to employees of the legislative branch. In Subchapter IV Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief. However, rather than use the pre-complaint regimes in place for other federal employees, Congress created an Office of Compliance and vested it with broad responsibility for counseling and mediation and adoption of rules of procedure.

In these appeals by United States Capitol Police officers from the dismissal of their discrimination complaint for failure to exhaust, three aspects of this regime are at issue: whether the three-step process is jurisdictional, whether in-person attendance by the employee is required at counseling or mediation, and whether receipt of end of counseling and mediation notices demonstrates completion of counseling and mediation. We hold the three-step process is jurisdictional and thus affirm the district court ruling that equitable doctrines, such as vicarious exhaustion, do not apply to excuse compliance with it. We reverse, however, the district court's in-person ruling, holding that neither the CAA nor the procedural rules of the Office of Compliance require in-person attendance by the employee at counseling or mediation. Finally, we hold that receipt of written notice of the end of mediation from the Office of Compliance triggered the CAA's 30 to 90-day period for electing whether to pursue judicial or administrative relief and demonstrated the employee's completion of counseling and mediation. Accordingly, we remand the cases to the district court.

I.

Subchapter IV of the CAA, titled "Administrative and Judicial Dispute Resolution Procedures," provides that prior to filing a complaint with the Office of Compliance ("Office") pursuant to section 1405 or in the district court pursuant to section 1408, an employee¹ must do three things:

First, "to commence a proceeding," the employee must request counseling within 180 days of the date of the alleged violation of a law made applicable by the CAA. Id. § 1402(a). As regards counseling, "[t]he Office shall provide the employee with all relevant information with respect to the rights of the employee." Id. The CAA further provides that "[t]he period for counseling shall be 30 days unless the employee and the Office agree to reduce the period." Id. § 1402(b). The Office must "notify the employee in writing when the counseling period has ended." Id. § 1402(c).

Second, "[n]ot later than 15 days after receipt ... of notice of the end of the counseling period ... but prior to and as a condition of making an election under section 1404," the employee must "file a request for mediation with the Office." Id. § 1403(a). Mediation "may include the Office, the covered employee, the employing office, and one or more individuals appointed by the Executive Director" of the Office, id. § 1403(b)(1), but "shall involve meetings with the parties separately or jointly for the purpose of resolving the dispute between the covered employee and the employing office," id. § 1403(b)(2). The mediation period "shall be 30 days," which may be extended upon joint request of the parties, id. § 1403(c), and (as with counseling) the Office must "notify in writing the covered employee and the employing office when the mediation period has ended," id.

Third, between 30 and 90 days of the receipt of the end-of-mediation notice, the employee who wishes to pursue his or her claims must elect, pursuant to section 1404, to file either (1) an administrative complaint with the Office pursuant to section 1405 or (2) a civil complaint in the federal district court pursuant to section 1408. Only the latter proceeding is at issue here.

In providing for judicial proceedings, two sections of the CAA are relevant here. Section 1408(a), titled "Jurisdiction," provides:

The district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 of this title and this section by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation.

Id. § 1408(a). Section 1410, titled "Other judicial review prohibited," provides that "[e]xcept as expressly authorized by sections 1407, 1408, and 1409 ..., the compliance or noncompliance with the provisions of this chapter and any action taken pursuant to this chapter shall not be subject to judicial review." Id. § 1410.

This was the statutory framework when, between April 12 and May 15, 2001, officers from the United States Capitol Black Police Association delivered materials to the Office, on behalf of "approximately 200 individual Capitol Police officers, former officers, and former recruits" (collectively "officers"), asserting that the Police Board and others had violated 2 U.S.C. § 1311, which made applicable protections under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, and Title I of the Americans with Disabilities Act of 1990. The materials identified Charles Jerome Ware, Esq., as their attorney. By letter of April 13, the Executive Director of the Office informed the Association and Attorney Ware of the CAA's counseling and mediation requirements and advised that he had accepted the materials submitted as "requests for counseling by each and every individual named in the material." Ltr. from William W. Thompson II to Charles Jerome Ware at 2 (Apr. 13, 2001). Counseling was conducted in three mass counseling sessions that took place on April 28, April 30, and May 5, 2001. The Office issued to the complainants written "Notifications of End of Counseling Period" on May 16 and June 15, 2001, based on the date counseling was requested.

On June 5, 2001, Attorney Ware requested mediation "on behalf of all the employees he represent[s]." Ltr. From Charles Jerome Ware to William W. Thompson II at 1. On June 12, the Office appointed Herbert Fishgold and Marvin Johnson as mediators for the cases. Additional officers requested mediation on June 27, 2001. On June 28, the parties jointly requested extension of the mediation period to October 1, 2001, but the Executive Director extended the period only to August 1, explaining that "[i]f the parties are engaged in serious mediation efforts, further extensions will be reviewed favorably." Notice of Extension of Mediation (June 29, 2001). In mid-July, Attorney Ware provided further information about approximately 76 of his clients. Upon agreement of the parties to proceed in alphabetical order, multiple mediation sessions were conducted on July 23 and 25, 2001. Attorney Ware's records show various telephone calls and meetings with the mediators in June and July, and by sworn declaration he stated that prior to August 2, 2001, he had spoken on behalf of all his clients with Office representatives, the mediators, and counsel for the Police Board and had represented selected officers in joint mediation sessions conducted by the Office. Ware Decl. May 21, 2004.

On August 2, 2001, the Office sent Attorney Ware and the Police Board a "NOTICE OF END OF MEDIATION" advising them of the dates of mediation and that the matters underlying the requests for mediation were not resolved. The notice also advised that the officers had to make an election pursuant to section 1404 to proceed under sections 1405 or 1408 "not later than 90 days, but no sooner than 30 days, after [they] ha[d] received this notice." The notice provided further details about proceedings under section 1405. Attached to the notice was a five-page single-spaced listing of the names and case numbers of the officers to whose claims the notice applied. On October 2, 2001 the Office certified, through its custodian of records, the dates of the requests for counseling and mediation, the dates the notices of the ends of those periods were mailed, and the dates receipt of the notices was acknowledged.

The officers filed a complaint in the district court on October 29, 2001, identifying by name more than 250 current and former Capitol Police officers. They alleged systematic discrimination against minority and female officers, including discrimination in hiring, promotion, discipline, retaliation, and maintaining a hostile work environment, in violation of Title VII, 42 U.S.C. §§ 2000e, et seq., and the Civil Rights Act of 1991, id. § 1981a. Various amended complaints were filed adding plaintiffs. An amended class action complaint filed January 29, 2003, the...