Munoz v. Aldridge
| Decision Date | 28 February 1990 |
| Docket Number | No. 89-5531,89-5531 |
| Citation | 894 F.2d 1489 |
| Parties | 52 Fair Empl.Prac.Cas. 489, 52 Empl. Prac. Dec. P 39,703, 58 USLW 2587 Manuel MUNOZ, Jr., and Jesus G. Munoz, Plaintiffs-Appellants, v. Edward C. ALDRIDGE, III, Secretary of the United States Dept. of the Air Force, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven M. Angel, Oklahoma City, Okl., for plaintiffs-appellants.
Drake Cutini, Judith F. Ledbetter, Robert S. Greenspan, Dept. of Justice, Civ. Div., Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before LIVELY, * JOLLY, and DUHE, Circuit Judges.
In this Title VII class action case the plaintiffs, two civilian employees of the air force, appeal the district court's grant of summary judgment to the defendant air force. Despite the fact that this case has languished in the administrative proceeding phase for over three years, the district court found that the plaintiffs had failed to exhaust their administrative remedies, and that plaintiff Manuel Munoz's individual claim was both untimely and barred by res judicata. Because the district court's conclusion that the plaintiffs failed to exhaust their administrative remedies contradicts the plain language of Title VII's implementing regulations and there is no evidence that the plaintiffs frustrated the administrative process, we hold that this conclusion is erroneous. Furthermore, because we also hold that the district court erred in concluding that Manuel Munoz's claim was barred by the statute of limitations and res judicata, we reverse the grant of summary judgment.
The plaintiffs, brothers Manuel and Jesus Munoz, are civilian employees of the air force who work at the Air Logistics Center at Kelly Air Force Base in San Antonio, Texas. They are both Mexican-American males. On May 25, 1982, they and two other male Mexican-American civilian employees at the base complained to the base EEO counselor about systematic discrimination in promotion against Hispanic males and stated that they wished to pursue a class complaint on this basis. On May 28, pursuant to the EEOC regulations governing class complaints by federal employees, 29 C.F.R. Sec. 1613 subpart F (1989), they filed a written informal complaint alleging that Mexican-American males were subject to discrimination in promotion above grade level GS-11 because of their national origin.
Their complaint challenged promotion and selection practices at the base, including various appraisal, awards and performance evaluation systems. They sought to represent a class of "male Americans of Mexican descent who are past, present or prospective employees of the San Antonio Air Logistics Center, and who have endeavored, or will endeavor to obtain a position, as employees, at the grade level of GS-11 and above." As specific instances of alleged discrimination, Manuel Munoz listed his nonselection for a GS-12 supervisory production-controller position in March 1982, and Jesus Munoz listed his nonselection as a GS-11 supervisory production-controller in April 1982.
An air force EEO counselor at the base reviewed the informal complaint and determined that, for several reasons, the plaintiffs were inappropriate class representatives. He specifically found that Manuel was an inappropriate representative because his claims were identical to those in seven previous unsuccessful administrative complaints he had filed. He recommended that no relief be provided. All four complainants then filed formal complaints with the EEO counselor, which were forwarded, along with the counselor's report, to a regional EEOC complaints examiner in Houston, pursuant to the applicable regulations. See 29 C.F.R. Sec. 1613.604(a). The complaints examiner recommended that the air force accept the complaint but that only the Munozes be accepted as class representatives. On April 8, 1983, the air force accepted the examiner's recommendation and defined the class as:
all Hispanic male employees GS-9 to GS-14 at the San Antonio Air Logistics Center ("SA-ALC") who, on or after February 26, 1982, were eligible for promotion to positions at grade GS-11 and above at SA-ALC which are covered by merit promotion certificates produced by the central civilian personnel office at SA-ALC.
The complainants appealed the air force decision to the EEOC in Washington, seeking acceptance of all four individuals as class representatives and a broader class definition that would include lower grade employees whom they perceived had been discriminatorily excluded from the promotion system. See 29 C.F.R. Sec. 1613.631. On February 8, 1984, the EEOC office of review and appeals issued its final ruling approving the definition of the class which the air force had accepted and denying the other two individuals' motions to be made class representatives. The office notified the plaintiffs that, pursuant to 29 C.F.R. Sec. 1613.641, they had thirty days to challenge this decision in court. No challenge was brought.
In March 1984, the air force began notifying potential class members that the suit existed and gave them the opportunity to opt out. An EEOC hearing examiner was appointed in April 1984. The parties met with the hearing examiner in late May 1984 and agreed to a tentative schedule for completion of administrative discovery (which the examiner anticipated would take approximately sixty days), an administrative hearing, and dates by which each party would tender prospective witness lists. Discovery continued through the rest of 1984 and the first five months of 1985. The plaintiffs made six principal requests for production and answers to interrogatories, in response to which the air force produced a large quantity of employment data and made available for inspection by the plaintiffs what it described as "thousands of pages of documents."
The plaintiffs' discovery requests produced an unexpectedly large quantity of data; this caused delay. In order to expedite the process, the hearing examiner took an active role. He directly contacted subordinate air force personnel without notifying the air force's attorney. The air force counsel protested this ex parte contact and informed EEOC headquarters of the examiner's actions. The examiner denied acting improperly, but at his own request was transferred from the case in May 1985. At about the same time the plaintiffs, whose attorney was overwhelmed by the task of reviewing the discovery documents, obtained different counsel. Apart from the change of counsel and the change of hearing examiner, the administrative record reveals no action taken by, nor any correspondence between the parties after early May 1985. The plaintiffs filed their complaint in district court on November 11, 1985, which halted the administrative process.
The plaintiffs' court complaint alleges both individual and class claims of discrimination against male employees of Mexican-American national origin and challenges the defendant's promotion system. It seeks to represent a class of "all present, past and future male employees of Mexican American national origin who are employed, or might be employed, by Defendant, who have been and continue to be or might be adversely affected by the practices complained of."
The defendant moved for dismissal on February 24, 1986. The air force argued that the plaintiffs were attempting to evade the administrative process (by filing a court complaint) in order to obtain a larger class than had been permitted in the administrative proceedings. It also contended that Manuel Munoz's administrative complaint was untimely and that his claim was further barred by res judicata, based on his three prior unsuccessful suits in federal court. On March 17, 1986 the plaintiffs sought class certification. On that date the plaintiffs' attorney also submitted an affidavit stating that the former hearing examiner had warned him that the air force had sought the examiner's removal because he had supported aggressive discovery requests by the plaintiffs. In response to defendant's motion to dismiss, the plaintiffs argued that their filing in federal court was necessitated by the air force's "improper manipulation of the administrative process." On April 8, 1986, the district court ordered that the motion for class certification be held in abeyance until the defendant's motion to dismiss could be ruled upon. On February 8, 1989, the court granted the defendant's motion to dismiss, holding that the plaintiffs had "not exhausted their administrative remedies properly," and that Manuel Munoz's individual claims were untimely and were barred by res judicata. The plaintiffs filed a timely notice of appeal on February 28, 1989.
The district court dismissed the plaintiffs' class complaint because they had failed to exhaust their administrative remedies "properly." The plaintiffs, however, had spent far longer in the administrative phase than the 180 days required by the statute. Although exhaustion does require good faith participation in the administrative process, the administrative record here does not disclose that the plaintiffs failed to cooperate or that the lack of progress in the administrative proceedings was otherwise attributable to them. The district court's dismissal for failure to exhaust was thus erroneous and must be reversed. The district court also dismissed Manuel Munoz's individual claims as untimely filed and, further, as barred by res judicata. The air force never raised the issue of timeliness throughout the nearly four years that the administrative proceedings continued, and we conclude that it is barred from doing so now. Manuel Munoz's prior individual claims were based on different instances of alleged discrimination, and thus cannot be a basis for dismissal under the doctrine of res judicata.
The Munozes argue on appeal that they have exhausted their...
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