Artis, Cynthia v. Greenspan, Alan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 1998 Decided October 20, 1998

No. 97-5235

Cynthia Artis, et al.,

Appellants

v.

Alan Greenspan, Chairman,

The Board of Governors of the Federal Reserve System,

Appellee

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. Matting-

ly, Jr., General Counsel, and Gerald S. Hartman.

Before: Wald and Tatel, Circuit Judges and Buckley,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Wald.

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 secre-

taries. 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 reme-

dies. The district court granted the motion, and the plaintiffs

appealed.1

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1 The plaintiffs state that they are also appealing "the denial as

moot of two motions to intervene brought by thirteen additional

current or former secretarial employees of the Board" as well as

"their related motions for an evidentiary hearing on the issue of

failure to exhaust administrative remedies, to the right to jury trial

on disputed factual issue [sic], and for leave to issue subpoenas for

depositions of witnesses on key factual issues." Appellants' Brief at

2. We discuss below the reason why the plaintiffs' request for a

remand to resolve the factual issues surrounding the motion to

dismiss is rejected. The other issues were not briefed on appeal

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 discrim-

ination 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. Counsel-

ing 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. s 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. s 268.206(a).

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and so are waived. See, e.g., Terry v. Reno, 101 F.3d 1412, 1415

(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997).

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 secretar-

ies 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 adequate-

ly 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. s 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 repre-

sent "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 re-

sponded 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 pro-

mote, 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. s 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 s 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 ap-

parently 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 No-

vember 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 re-

tracted 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." Subsequent-

ly, Wiggins tried to contact the eight members of the expand-

ed class and issued a second counseling report on December

4.2

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2 The ALJ's letter came after the initial counseling period had

ended, and there is some confusion in the record as to whether or

how the counseling period was extended. Title VII regulations

provide that the 30-day counseling period may be extended only if

the complainants agree with the agency in writing to postpone the

date of the final interview. 29 C.F.R. s 1614.105(d)-(e). But

according to Wiggins' December 4 report, the EEO office had

instructed her that counseling was to conclude on December 1,

suggesting that the counseling period was extended past the origi-

nal November 2 cut-off.

In the December 4 report, Wiggins noted that Artis had contact-

ed her twice at the end of November to protest the continued

counseling: "Ms. Artis stated the time for counseling has expired

and there is no requirement in any orders from the Judge ordering

counselors to do this counseling. She stated that those were the

exact words of her attorney. Ms. Artis informed me that she would

let the ladies know what their attorney said and they will make up

their minds whether they will have counseling or not." Thus the

This December 4 counseling report is particularly impor-

tant 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. Accord-

ing 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 unavail-

able 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 counsel-

ing reports and the case file were forwarded to the ALJ on

January 5, 1996.

On January 17, 1996, complainants' lawyer sent the ALJ

three documents "for filing" in the case. One document was

a "Second Amended Complaint," which again provided names

of potential class agents outside of the Legal Division. The

Second Amended Complaint is identical to the First Amended

Complaint, except that it contains a new paragraph 71 naming

seven additional class agents.4 These additional seven women

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putative class agents resisted any further counseling following the

ALJ's clarification letter. Moreover, as the ALJ noted in his

opinion, the four complainants had withdrawn the names of the

other eight secretaries during the original 30-day period.

3 Proctor told the counselor that she is Native American, not

African-American. In addition, her statement of reprisal seems to

indicate that, unlike the other complainants, her alleged reprisal

resulted not from protected activity but from her attempt to take

time off to care for two sick children. Although she said in her

statement that she was placed on "career transition" after the

Board discovered she was involved in this class complaint, in August

1995, Proctor also said that she wanted to be placed on career

transition.

4 The paragraph states, in pertinent part: "Seven additional

persons have requested that they be added to the case as named

were the same women whom the Board had contacted or tried

to contact while counseling was ongoing. The agents' counsel

suggested a formal hearing or "a short period of discovery"--

a process not provided for in EEOC or Board regulations--to

determine the precise status and scope of the complaint.

F.The Final Ruling

On June 3, 1996, the ALJ recommended dismissal of the

agents' class claims. He found that complainants had failed

to present evidence sufficient to show the commonality and

typicality of discrimination claims required for a class com-

plaint encompassing all African-American secretaries at the

Board. "In response to my request for information concern-

ing whether there is a centralized administration and/or

decision-making system, the class representative stated that

although class members belong to more than one Agency

division, the Agency has a centralized personnel system (and

therefore centralized decision-making)." The ALJ found this

proffer to be inadequate: "[C]ommonality requires that there

be questions of fact common to the class. Conclusory allega-

tions of discrimination in different [personnel] practices are

not certified merely because the purported class members

share the same race, national origin, or sex." On June 28, the

Board adopted the ALJ's recommendation with the additional

finding that "dismissal of the amended complaints is also

warranted because events allegedly occurring outside of the

Legal Division have not been the subject of counseling as

required under the EEO rules."

II.

The district court decided appellant's Fed. R. Civ. P.

12(b)(1) motion to dismiss based on the pleadings as well as

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complainants. Those persons have retained undersigned counsel

and authorized counsel to represent each of them in the complaint.

Each of the following named complainants adopt [sic] the factual

representations (in general) and represent that similar discriminato-

ry acts have been applied to each and every one of them following

exactly the pattern described by the original four named complain-

ants."

materials from the administrative record submitted by both

sides. The material facts themselves upon which the district

court's decision rests were undisputed,5 and plaintiffs no-

where set forth which, if any, material facts they are disput-

ing here. Instead, plaintiffs appear to contest the inferences

the Board and the district court have drawn from the uncon-

tested record of agency proceedings. The nonmoving party

is entitled to all reasonable inferences that can be drawn in

her favor. Cf. Shields v. Eli Lilly & Co., 895 F.2d 1463, 1465

(D.C. Cir. 1990). We conclude that plaintiffs have not prof-

fered any reasonable inferences that differ from the Board's

and are material to this dispute. Thus, we apply the de novo

standard of review to the district court's application of law to

undisputed fact. See, e.g., Herbert v. National Academy of

Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

The purpose of EEO counseling is "to try to informally

resolve the matter." 12 C.F.R. s 268.204(a) (1995) (emphasis

added). Claims must be brought to the EEO Counselor in a

manner that lends itself to potential resolution. Thus we

have held that providing the agency with bare "notice" of the

basis of a complaint during the counseling stage is not

enough. Agencies cannot make informed decisions based on

"vague allegations of discrimination ... [without] details or

dates" because this "frustrat[es] the agencies' ability to inves-

tigate complaints" and impedes their efforts to issue final

rulings on the merits. Wilson v. Pea, 79 F.3d 154, 164-65

(D.C. Cir. 1996) ("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, he

may not file a judicial suit."); see also Barnes v. Levitt, 118

F.3d 404 (5th Cir. 1997) (plaintiff did not comply with exhaus-

tion requirement when she told EEO Counselor that she

refused to participate in counseling because the agency had

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5 Appellants claim that they were prejudiced by the district

court's consideration of material outside the pleadings, but at oral

argument on appeal, appellants' lawyer conceded that no Rule 56(f)

motion had been filed in the district court and that appellants had

submitted 37 exhibits of their own in opposition to the Board's

motion. Accordingly, this argument fails.

known of her specific allegations for two years), cert. denied,

118 S. Ct. 1839 (1998); Pack v. Marsh, 986 F.2d 1155 (7th

Cir. 1993) (per curiam) (when agency is not given the oppor-

tunity to reach merits of an EEOC claim, federal courts will

not reach the merits either); Woodard v. Lehman, 717 F.2d

909 (4th Cir. 1983) (agency properly found that complaint

must be canceled or dismissed when complainant in counsel-

ing declines to describe the specific event that gave rise to

the complaint); Johnson v. Bergland, 614 F.2d 415 (5th Cir.

1980) (per curiam) (plaintiff's general claims of discriminatory

grading and seniority policies insufficient for exhaustion pur-

poses); cf. Brown v. Marsh, 777 F.2d 8, 15 (D.C. Cir. 1985)

(in case with long and tortured history of administrative

litigation "it was [not] beyond the intellectual resources of the

Army to surmise that when plaintiff applied to no avail for

two specific positions he might consider those two rejections

to be further evidence of the continuing pattern of discrimina-

tory nonpromotion of which he had already complained");

Shehadeh v. C & P Telephone Co., 595 F.2d 711 (D.C. Cir.

1978) (exhaustion requirement met even though plaintiff omit-

ted the name of respondent in formal complaint because

complaint still provided notice to the wrongdoer and could

facilitate conciliation).

The record of plaintiffs' contacts with the Board indicates

that: (1) they initially provided names of eight secretaries

who worked throughout the Board but did not identify the

discriminatory Board-wide practices of which each com-

plained; (2) they demanded statistical data from the Board

before providing information about such practices and with-

drew the names of six of the secretaries when plaintiffs were

told that they were not entitled to such information during

the counseling stage; and (3) they told the other secretaries

(at least, those whom the counselor could reach) not to talk to

the EEO Counselor when she later attempted to counsel

them in accordance with the ALJ's clarification letter. This

case does not provide us with an exemplary model of an

orderly counseling process; however, the only reasonable

inference we can draw from the record is that plaintiffs failed

to give the Board information to which plaintiffs alone had

access--specific instances of Board-wide discriminatory per-

sonnel practices that affected the members of the putative

class. Wilson and Proctor did submit "Statement[s] of Repri-

sal," but even if their allegations of retaliation for taking days

off could be construed to present claims in common with the

other class members, Proctor herself told the counselor that

her issues were different. In addition, neither Wilson, who

according to the counselor's November report no longer

worked at the Board, nor the other complainants provided the

Board with a working telephone number for Proctor so that

the counselor could work with her and her supervisors to

solve the problem in a nonadversarial manner. Indeed, ex-

haustion of the counseling step is necessary because "Con-

gress wanted to give each agency 'the opportunity as well as

the responsibility to right any wrong that it might have

done.' " Brown, 777 F.2d at 14 (citation omitted). As evi-

denced in the counseling report submitted by Wiggins on

March 27, 1995, pursuant to the four Legal Division secretar-

ies' first complaint, counseling requires extensive interviews

with complainants and their supervisors, as well as identifica-

tion and evaluation of pertinent agency records. Neither

Wilson's nor Proctor's statements alone, and certainly not the

nonresponses of the secretaries outside of the Legal Division,

gave the EEO enough information to counsel the class claims.

In this case, the agency dismissed the class complaint

because the complainants failed to raise issues or to name

representatives beyond the Legal Division during sessions

with the EEO Counselor.6 See 12 C.F.R. s 268.206(a)(2)

(1995); 29 C.F.R. s 1614.107(b) (1995). Plaintiffs argue that

since the ALJ was also able to reach "the merits" of their

class complaint, the Board is barred from taking the position

that they did not provide adequate detail for exhaustion

purposes during counseling. Cf. Wilson, 79 F.3d at 164. But

to the contrary, the Board's denial plainly relied on the

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6 Since there were only six secretaries in the Legal Division, the

ALJ found that the numerosity requirement for class complaints

would not be met if the class were limited to secretaries in that

division.

plaintiffs' failure to engage in counseling their alleged class

complaints. That the Board also rejected the complaint for

failure to meet the threshold typicality and commonality

requirements of a class complaint adds nothing to the mix. A

commonsense reading of the decision reveals that the class

complaint was rejected because agency officials had no infor-

mation on which to base a finding of typicality or commonali-

ty.7

Plaintiffs insist that the Board's actions blocked their ac-

cess to key information that would have enabled them to

pursue their class claims in counseling. However, the record

before us speaks to the contrary; it demonstrates that plain-

tiffs declined to cooperate with the Board. The four named

complainants only addressed Board-wide complaints by way

of asking for data on other secretaries, and they apparently

declined to help--and in fact, took steps to discourage--

Wiggins in contacting the others during the 30-day counsel-

ing period until their informational demands were met. Not

one of the eight secretaries from other divisions came forward

with her claim in a manner that enabled the Board to right its

alleged wrongs. Indeed, counsel's letter to the Board accom-

panying the Second Amended Complaint, as well as counsel's

July 1, 1996 letter to the Board, decried the counseling

process and asked for quick and final administrative rulings

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7 During oral argument, plaintiffs' counsel attempted to draw

our attention to the Second Amended Complaint, which did include

names of secretaries outside the Legal Division. However, this

complaint was filed on January 17, 1996, well beyond the close of

counseling, and was clearly not intended as a request for more

counseling, given that the class representative plainly resisted any

extension of the counseling period in his accompanying letter to the

ALJ. Thus, this complaint could hardly be viewed as evidence that

plaintiffs sought to exhaust their administrative remedies. In

addition, the Second Amended Complaint added the names of seven

more women outside the division but provided no details about their

charges. See 29 C.F.R. s 1614.204(c)(1) ("[a] class complaint must

be signed by the agent or representative and must identify the

policy or practice adversely affecting the class as well as the specific

action or matter affecting the class agent").

on all issues. In that respect, this scenario is quite different

from the cases on which plaintiff chiefly relies, Mangiapane

v. Adams, 661 F.2d 1388 (D.C. Cir. 1981) (per curiam), and

President v. Vance, 627 F.2d 353 (D.C. Cir. 1980). In both of

these cases, unlike this one, the agency had been presented

with detailed complaints about specific personnel practices.

In President, this court ruled that a plaintiff need not specifi-

cally plead in his administrative complaint that the remedy he

seeks is promotion from one grade level to another when it is

made clear in other documents in the administrative record.

In Mangiapane, we extended President to hold 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. By contrast, the plaintiffs here did not identify

any agency-wide discriminatory personnel practices. The

record wholly supports the ALJ's conclusion that "[t]he class

representative provided no probative information of an Agen-

cy policy that created a pattern of discrimination despite the

division-level decision making." If secretaries (perhaps even

one secretary) outside of the Legal Division had agreed to

pursue counseling, the ALJ might have had a basis on which

to find "specific facts that are common to the class." Artis v.

Board of Governors of the Federal Reserve, EEOC No.

100-96-7227X, at 8 (Administrative Law Judge Recommenda-

tion, June 3, 1996). As the record stands, however, it is clear

that the Board fulfilled its statutory duties in dealing with the

plaintiffs. See 29 C.F.R. s 1614.204(d)(3).

The judgment of the district court is therefore affirmed.

So ordered.