Wade v. Secretary of Army

• Decision Date: 14 August 1986
• Docket Number: No. 85-8751,85-8751
• Citation: Wade v. Secretary of Army, 796 F.2d 1369 (11th Cir. 1986)
• Parties: 41 Fair Empl.Prac.Cas. 1691, 41 Empl. Prac. Dec. P 36,562 Raeford D. WADE, et al., Plaintiffs-Appellants, v. SECRETARY OF the ARMY, etc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1369

796 F.2d 1369

41 Fair Empl.Prac.Cas. 1691,

41 Empl. Prac. Dec. P 36,562

Raeford D. WADE, et al., Plaintiffs-Appellants, v.SECRETARY OF the ARMY, etc., Defendant-Appellee.

No. 85-8751.

United States Court of Appeals Eleventh Circuit.

Aug. 14, 1986.

Kenneth Dious, Athens, Ga., George McGriff, Carol Reilly McGriff, Charles Stephen Ralston, Julius LeVonne Chambers, NAACP Legal Defense and Educ. Fund, New York City, for plaintiffs-appellants.

Robert S. Greenspan, Jeffrey Clair, U.S. Dept. of Justice, Civil Div. Appellate Staff, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before CLARK, Circuit Judge, TUTTLE and HENDERSON^*, Senior Circuit Judges.

CLARK, Circuit Judge:

Raeford D. Wade and Ruben Pace, Jr., are black civilian employees at the United States Signal Center ("Signal Center") at Fort Gordon, Georgia.They appeal from the district court's dismissal on the pleadings of their Title VII class action complaint for failure to exhaust administrative remedies.We reverse and remand for a determination whether appellants complied with the regulations governing administrative class complaints.

I.FACTS

On August 1, 1984, Wade and Pace, along with other black Signal Center Employees, contacted an equal employment opportunity ("EEO") counselor at Fort Gordon to allege on behalf of black employees at the Signal Center and at the Eisenhower Army Medical Center ("Medical Center") that such employees suffer discrimination on the basis of race in the areas of promotion, training, awards and recognition, performance appraisal and general terms and conditions.¹On August 30, 1984, after conducting an investigation and attempting informal resolution of the dispute, the EEO counselor issued a report, finding that black employees at the centers receive proportionately fewer awards, training opportunities, temporary promotions and exceptional appraisal ratings and that blacks are severely under-represented in supervisory and management positions at the centers.The report appears to identify only two instances of possible discrimination against the individual complainants.The EEO counselor found that a supervisor arbitrarily refused to certify Connie Hickey's claim for excess travel reimbursement while granting the claims of two white employees and that Hickey was the victim of poorly developed and "absolute" performance appraisal standards.Unable to resolve the dispute to the satisfaction of the complaining employees, the counselor nonetheless made several general recommendations directed toward management and supervisory personnel and designed to reduce the noted disparities.

On August 31, 1984, the same employees filed a class complaint with the Department of the Army.²The complaint was accompanied by five attachments containing class allegations of race discrimination in the five areas of dispute--promotion, training, awards and recognition, performance appraisal and terms and conditions of employment.Also submitted with the complaint were three "enclosures," each headed "Memorandum For Record," setting forth individual accounts by would-be class agents of personal encounters with alleged racial discrimination.These documents and the EEO counselor's report were turned over to an Equal Employment Opportunity Commission("EEOC") complaints examiner pursuant to 29 C.F.R. Sec. 1613.604.

On October 11, 1984, the complaints examiner notified the agents that their complaint did not allege numerosity, typicality, commonality and adequacy of representation as required by 29 C.F.R. Sec. 1613.604(b)(7).³Appellants claim they submitted a forty-nine page response to the complaints examiner's request for further information, detailing individual experiences in each of the five areas of dispute; ⁴ however, it is not clear whether the complaints examiner ever received it.His Statement of Findings and Recommended Decision states that he received only two one-half page letters after notifying the agents of the deficiency in their complaint, neither of which mentioned the four requirements for acceptance of a class complaint.Thus, it appears that if the complaints examiner ever received the response, he did not consider the additional information in reaching his recommendation.

In a report issued December 17, 1984, the complaints examiner recommended that the Army reject the complaint for failure to comply with the regulatory requirement that a class complaint allege the existence of the aforementioned elements of a class action.It is not clear from the complaints examiner's discussion whether the fatal deficiency lay in the failure to allege the existence of numerosity, typicality, commonality and adequacy of representation or in the failure to provide sufficient information from which to determine whether these class action elements were present.

The Army accepted the recommendation and issued a "final agency decision" on January 4, 1985, rejecting the class complaint for the reasons set forth in the complaints examiner's report.The same letter that notified the would-be class agents of the final agency decision informed them that their "appeal rights" included the right to appeal to the EEOC or to file a civil action in an appropriate United States District Court.

Appellants chose to file a complaint in the United States District Court for the Southern District of Georgia against the Secretary of the Army, the Department of the Army, the Medical Center and the Signal Center.In a complaint filed on January 28, 1985, they requested class certification and de novo consideration of the merits of their discrimination claims.They asserted that they had exhausted their administrative remedies and attached the final agency decision and complaints examiner's report to the complaint.

Appellees moved to dismiss the complaint on the ground appellants had failed to exhaust their administrative remedies.The district court agreed and ordered the complaint dismissed.The court apparently believed that exhaustion principles required appellants to challenge the final agency decision itself, either by appealing to the EEOC or by charging error in the agency's determination in their federal complaint, ⁵ before seeking de novo review of the merits in federal court.The court also suggested that appellants were required to exhaust individual administrative remedies before bringing an action in federal court.Because the agency had not decided the merits of the claims in the class complaint, and because appellants had not pursued individual administrative remedies, the court concluded that appellants had failed to exhaust their administrative remedies.⁶It is from this determination that Wade and Pace appeal.

II.ISSUES

Appellants contend that they were entitled to file a complaint in federal district court requesting a determination on the merits of their discrimination claims and were not required to appeal or challenge the final agency decision before either the EEOC or a federal district court.They further argue that they could not have furnished any more information than they did to demonstrate that the elements of numerosity, commonality, typicality and adequacy of representation were present and that the agency and complaints examiner therefore erroneously rejected their administrative class complaint.

Appellees respond that an aggrieved employee may not satisfy the exhaustion requirement merely by obtaining a preliminary procedural ruling from the agency but must give the agency a full opportunity to remedy the dispute through administrative mechanisms.Failure to comply with regulatory prerequisites denies the agency that opportunity and so precludes finding that exhaustion has occurred.They further argue that appellants were required to challenge the rejection of their complaint in an appeal to the EEOC or by charging error in the final agency decision in their judicial complaint.Contending that appellants effectively waived any objection to the agency's conclusions by failing to raise them, appellees maintain that the district court did not err in failing to make findings as to whether appellants complied with the regulations.

III.ANALYSIS

In 1977, the Civil Service Commission("CSC") promulgated regulations governing the administrative processing of federal employees' class allegations of employment discrimination.These regulations were adopted by the EEOC in 1978 when it took over the enforcement of equal employment opportunity law pursuant to the President's Reorganization PlanNo. 1 of 1978.See43 Fed.Reg. 60900(1978).The regulations concerning processing of class complaints are now codified at 29 C.F.R. Secs. 1613.601-.643(1985).

A federal employee plaintiff seeking to litigate class claims of Title VII discrimination in federal court is required to have exhausted administrative remedies relating to class complaints.Lewis v. Smith, 731 F.2d 1535, 1540(11th Cir.1984).No longer may a plaintiff who has exhausted individual administrative remedies litigate class claims "like or related to" the individual claims presented and investigated at the administrative level, as was the case prior to adoption of the aforementioned class complaint regulations.SeeGriffin v. Carlin, 755 F.2d 1516, 1531-32(11th Cir.1985).

This case must therefore be viewed against the following regulatory backdrop.29 C.F.R. Sec. 1613.601 provides in relevant part:

(b) a "class complaint" is a written complaint of discrimination filed on behalf of a class by the agent of the class alleging that:

(1) The class is so numerous that a consolidated complaint of the members of the class is impractical;

(2) There are questions of fact common to the class;

(3) The claims of the agent of the class are typical of the claims of the class;

(4) The agent of the class, or his/her representative, if any, will fairly and adquately [sic]...