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.