Author’s note: This post will differ from previous posts in that it will feature a longer exposition. It is important to be a little longer because the case involving the class plaintiffs and the Federal Reserve Board has been ongoing for about 18 years. This case before the D.C. Circuit was decided in January 2011. On September 29, 2014, the district court denied class certification to the plaintiffs. See Artis v. Yellen, Civil Action No. 01-400 (EGS). The case remains active as of the date of this post.
Artis v. Bernanke, No. 09-5121 (D.C. Cir. 2011)
Summary: D.C. Circuit Court of Appeals held that class members claiming racial discrimination at the Federal Reserve Board (Board) did satisfy the Board’s Equal Employment Opportunity (EEO) regulations requiring a counseling session with the Board’s EEO office because the class did provide information about specific instances of discrimination and offered corresponding allegations of discrimination against individual class agents. The D.C. Circuit determined that such information was enough for the Board to investigate and try to resolve the class claims.
Facts: The plaintiffs, a class of secretaries currently and formerly employed by the Board, claimed that the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.).
On January 15 and February 13, 1997, several class members, with counsel, initiated counseling with the Board, in accordance with Board regulations 12 C.F.R. §268.104(a). (Board EEO counselors, with a Board lawyer, held group counseling sessions on these days.)
On January 17, 1997, class members, responding to the Boards request for information, submitted 14 identical copies of a document, “Resubmission of Class-Action Complaint.” In the January 17 document, the secretaries alleged a systemic and pervasive pattern of discrimination against African American secretaries by the Board. Particularly, that the Board–
- Paid them lower salaries than non-minority secretaries,
- Awarded them fewer and smaller bonuses,
- Granted them fewer promotions,
- Deflated their performance appraisals,
- Denied them privileges and training that non-minority secretaries enjoyed,
- Unfairly enforced leave procedures against them, and
- Discriminated against them in the quantity and quality of work assignments.
Between January 24 and February 18, 1997, Board EEO counselors met individually with nine secretaries, in which those secretaries confirmed the general allegations in the January 17 Resubmission document, and some of them recounted specific instances of discrimination from personal experience. The Board’s EEO counselors prepared reports based on the notes they took in these counseling sessions.
The class members filed an administrative complaint on March 3, 1997, but the Board dismissed the complaint on July 23, 1997. And, the U.S. Equal Employment Opportunity Commission affirmed the Board’s dismissal on November 18, 1998. The class filed a complaint in the federal district court on February 22, 2001.
The Board filed a motion to dismiss, which the district court denied. The district court ordered discovery on the issue of exhaustion, “whether the plaintiffs have satisfied their obligation to engage in counseling” and whether “the administrative counseling process was a futile exercise,” citing Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).
After five years of contentious discovery, the Board renewed its motion to dismiss in 2005, which the district court granted on January 31, 2007, holding that the court lacked subject matter jurisdiction over the class because the class members failed to exhaust the counseling requirement because the class failed to provide any meaningful information about specific instances of discrimination. The class members appealed.
Holding: The D.C. Circuit, vacating the decision of the district court and remanding the case to the district court, held that where counseling produces sufficient information to enable the agency to investigate the claim, that counseling purpose has been served. The court determined that the class members did provide meaningful information about specific instances of discrimination in the January 17 Resubmission document and offered corresponding allegations of discrimination against individual class agents. Such information, the D.C. Circuit reasoned, was enough for the Board to investigate and try to resolves the claims of the class members. (See pages 9-12 of the opinion for the specific allegations and the individual experiences of discrimination.)
Moreover, the court stated that it reviews challenges to dismissals for lack of administrative exhaustion de novo, as it is a question of law, citing Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800 (D.C. Cir. 2010).
Analysis: The purpose of counseling, the court explained, in the Title VII context, is clear from the text of the Board’s regulation–to enable the agency and its employee “to try to informally resolve the matter,” citing 12 C.F.R. §268.104(a), Wilson v. Peña, 79 F.3d 154 (D.C. Cir. 1996), and Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699 (D.C. Cir. 2009).
The court noted that Title VII’s exhaustion requirement should not be read to create useless procedural technicalities, citing President v. Vance, 627 F2d 353 (D.C. Cir. 1980). An agency risks misusing the counseling requirement, the court explained, when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination.
Claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees, the court noted. The court continued, stating that such an analysis will only be possible after employees obtain data from their employer, informally or through discovery.
Thus, the court concluded that it would be perverse to dismiss a complaint for failure to provide adequate detail in counseling when all of the relevant data is in the employer’s exclusive control.
In addition, the court noted that the class status of the plaintiffs allows a representative plaintiff to satisfy the counseling requirement on behalf of similarly situated class members. As a result, the entire class exhausted administrative remedies by virtue of the class agents successful completion of counseling.
Moreover, the court noted in a footnote that failure to exhaust administrative remedies under Title VII is not jurisdictional because Title VII does not include a clear statement of that intent.