Wade v. Secretary of the Army Brief for Appellees

    No. S5-8751

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

RAEFORD D. WADE, et al.

THE SECRETARY OF THE ARMY, et al.

HINTON R. PIERCEUnited States Attorney
ROEERT S. GREENSPAN 
JEFFREY CLAIR

Attorneys, Appellate Staff Civil Division, Room 2S17 
U .S. Department of Justice 
Washington, D.C. 20530
Telephone: (202)_633-3602

Appellants

v.

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR AFPELLEES

Assistant Attorney General

ITLED TO PREFERENCE.



TABLE OF CONTENTS
Page

Statement Regarding Preference................  1
Statement Regarding Oral Argument.............  1
Statement of the Issue........................  2
Statement of the Case.........................  2
Summary of Argument........................... 8
Argument......................................  9

THE APPELLANTS FAILED TO EXHAUST
ADMINISTRATIVE REMEDIES AND THE
COURT PROPERLY DISMISSED THE CASE......... 9

Conclusion....................................  18
Certificate of Service........................  19
Appendix

TABLE OF AUTHORITIES

Cases:
Barrett v. U.S. Civil Service Commission, 69 

F.R.D. 544, 439 F. Supp. 216 (D.D.C.1975)......................................  11
Bell v. New Jersey and Pennsylvania, 461 U.S.

773 (1983).................................  10
Berry v. Pierce 98 F.R.D. 237 (E.D. Tex 1983)... 17
Brown v. General Services Administration, 425

U.S. 833 (1976)............................  9,17
Chisolm v. U.S. Postal Service, 665 F.2d 482

(4th Cir. 1982 )............................  12
Downes v. Adams, 33 FEP Cases 929 (E.D. N.5

1982)......................................  12
Fitzwater v. Veterans Administration, 90

F.R.D. 435 (S.D. Ohio 1981)................  12
General Telephone Co. of the Southwest v.

Falcon, 452 U.S. 147 (1982)................ 6



Griffin v. Carlin, 755 F.2d 1515 (11th Cir.
1985)......................................  10,11

Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir.
1975)......................................  15

Johnson v. Bergland, 514 F.2d 415 (5th Cir.
1980)............... ....................... 15

Lewis v. Smith, 731 F.2d 1535 (11th Cir.
1984)......................................  10,11

McIntosh v. Weinberger, 34 FE"P Cases 911
(E.D. Mo. 1984).............................  12

McKart v. U.S., 395 U.S. 185 (1959).............  10
Milam v. U. S. Postal Service, 574 F.2d

860 (11th Cir. 1982)......................  17
Moore v. Orr, 33 FEP Cases 523 (D. Col.

1982)............. ......................... 12
Patton v. Brown, 95 F.R.D. 205 (E.D. Pa.

1982)......................................  10,11,12
Swain v. Hoffman, 547 F.2d 92-1 (5th Cir.

1977)......................................  17
Thomas v. United States Postal Service, 33

FEP Cases 521 (N.D. Cal. 1981)..............  10,12
Williams v. U. S. Postal Service, 33 FEP Cases

533 (N.D. Ga. 1983)......................  10,11
Zines v. TransWorld Airlines, 455 U.S. 385(

(1982).....................................  17
Statutes, Regulations, and other Authority:

Civil Right Act of 1964, Title VII,
42 U.S.C. 2000e et seq..................  Passim

29 C.F.R. 1613.601 et sag................... 2-5
Rule 23, Fed. Rules of Civ. Procedures Passim



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

RAEFORD D. WADE, et al.
Appellants,

v.

THE SECRETARY OF THE ARMY, et al.
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLEES

STATEMENT REGARDING PREFERENCE 
In accordance with Rule 22(f)(3) of the Rules of the United 

States Court of Appeals for the Eleventh Circuit, counsel for 
the appellees state this case is not entitled to preference in 
processing and disposition.

STATEMENT REGARDING ORAL ARGUMENT 
In accordance with Rule 22(f)(4) of the Rules of the United 

States Court of Appeals for the Eleventh Circuit, counsel for 
the appellees respectfully submit that oral argument is 
unnecessary. This case raises well settled issues concerning 
the necessity of exhausting administrative remedies and oral 
argument will not be of significant further benefit to the court 
in rendering a decision.



STATEMENT OF THE ISSUE
Whether the district court correctly dismissed the case for 

failure to exhaust adminstrative remedies.
STATEMENT OF THE CASE

This is an appeal from an order of the United States 
District Court for the Southern District of Georgia dismissing 
plaintiffs' employment discrimination class action for failure 
to exhaust administrative remedies. The plaintiffs alleged that 
the Department of Army had, in violation of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., discriminated 
against a class of black civilian employees and former 
employees. Specifically, plaintiffs asserted that the Army's 
employment practices at the Ei'senhower Medical Center and the 
U.S. Army Signal Center -- both located at Fort Gordon, Georgia, 
-- discriminated against blacks in determining selection for 
promotions, training, and performance awards, in administering 
the employment performance appraisal system, and in establishing 
other terms and conditions of employment. In addition, the 
plaintiffs' alleged that the Army committed further acts of 
discrimination by subjecting members of the putative class to 
harassment and retaliation for instituting complaints about the 
Army's employment practices at -Fort Gordon.

Before filing this class action in district court, the named 
plaintiffs had attempted to pursue a class action at the 
administrative level under procedures set out at 29 CFR 1613.601 
et seq. These regulations establish a set of administrative

2



remedies modeled on the class action procedures of Rule 23 of 
the Federal Rules of Civil Procedures. Under these regulations, 
an individual may seek administrative redress of employment 
discrimination on behalf of a class of similarly situated 
individuals. An individual who wishes to use these procedures 
must first consult with an Equal Employment Opportunity 
Counselor at the employing agency. The counselor is required to 
seek an informal resolution of the matters at issue and is 
accordingly empowered to obtain information pertaining to the 
complaint and to suggest corrective action if necessary. 29 CFR 
1613.602.

If the complainant is not satisfied with the results of this 
informal conciliation process, he or she, acting as representa­
tive or "agent" of the class, may file a formal written com­
plaint with officials of the employing agency. The complaint 
must declare that (1) the class is so numerous that consolidated 
treatment of the individual members' claims is impractical; (2) 
there are questions of fact common to the class members; (3) the 
claims of the class agent typify the claims of the class 
members; and (4) the class agent can fairly and adequately 
protect the interests of the class. 29 CFR 1613.601. In 
addition, -the administrative complaint must describe and detail 
the specific policy or practice giving rise to the complaint.
29 CFR 1613.603(b).

Once the complaint is filed with the agency, it is forwarded 
for review to an independent complaints examiner. As an initial

3



matter, the complaints examiner must determine whether the 
complaint meets the legal and factual requirements for 
maintaining an administrative class action. This step of the 
administrative process is analogous to the class certification 
step under Rule 23 of the Federal Rules of Civil Procedure.
Thus, the examiner may recommend that the employing agency 
"reject" the complaint for processing as a class action if the 
complaint is too vague or if the complaint fails to satisfy the 
class action requirements of numerosity, commonality, 
typicality, or adequacy of class representation. 29 CFR 
1613.604(b). If the agency follows this recommendation and 
rejects the class action complaint, the agent may appeal to 
either the Equal Employment Opportunity Commission's Office of 
Review and Appeals or to a United States District Court. 29 CFR 
1613.631(a); 1613.641(a). In addition, the class agent may 
institute an individual complaint of discrimination at the 
administrative level. See 29 CFR 1613.604(i).

If, however, the complaint is accepted for processing as an 
administrative class action, the complaints examiner must 
evaluate the substance and merits of the class allegations of 
discrimination. To facilitate this evaluation, both the 
complainants and the agency are afforded an opportunity to- 
develop relevant evidence through interrogatories, depositions, 
and requests for production of documents. 29 CFR 1613.608(b). 
After both parties have had a reasonable opportunity to develop 
evidence and prepare the case, the examiner must conduct a 
hearing at which further evidence may be taken. 29 CFR 1613.610.

4



Upon reviewing the evidence in the record, the examiner 
prepares findings and recommendations. These recommendations 
are forwarded to the agency which may accept, reject, or modify 
the examiner's decision. This then becomes the final agency 
decision and is binding on the agency and all members of the 
class. 29 CFR 1613.602. In light of the binding effect of an 
agency decision, the agency must notify all class members of the 
existence of the class complaint before a final decision is 
reached and afford each class member the opportunity of opting 
out of the class. 29 CFR 1613.605. Once the agency renders a 
final decision, an aggrieved class agent may appeal to either 
the Equal Employment Opportunity Commission or to a United 
States District Court. 29 CFR 1613.631; 29 CFR 16134.641.

Plaintiffs' administrative class action complaint was filed 
with the Fort Gordon Equal Employment Opportunity Officer on 
August 31, 1984. (O.R.A. Tab 4, Exhibit A -- certified
administrative record). The complaint was forwarded to the EEOC 
and received by a complaints examiner on September 21, 1984.
(R.E. 13). After reviewing the complaint, the examiner 
concluded that the plaintiffs had failed to show satisfaction of 
the class action requirements of numerosity, commonality, 
typicality, and adequacy of representation. He therefore wrote 
plaintiffs' counsel, indicated deficiencies in the allegations, 
and offered to consider supplemental materials related to the 
class action criteria. (R.E. 20-21).

5



Plaintiffs responded with a document describing instances of 
allegedly discriminatory treatment suffered by the class agents 
and selected members of the putative class. ( R.E. 73-129). 
Nevertheless, the examiner, applying the principles set forth in 
General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 
(1982), concluded that the plaintiffs had failed to satisfy the 
requirements for maintaining an administrative class action. 
Specifically, the examiner concluded that the complaint did not 
aver numerosity of the class, that the complaint failed to 
plead, present, or identify a common question of law or fact, 
that the complaint failed to show the typicality of the agents' 
claims, and that the class agents had not shown they could 
provide adequate representation for absent class members. In 
addition, the examiner found that the complaint did not specify 
and detail the management policies or practices at issue. 
Consequently, the examiner recommended that the Army reject the 
complaint for processing as an administrative class action.
(R.E. 15-19). On January 4, 1985 the examiner's recommendations 
were adopted as the Army's final decision. (R.E. 8-10). Each 
class agent was then notified of his or her right to appeal the 
decision rejecting the complaint for processing as a class 
action and of the right to proceed with an individual complaint 
of discrimination. (R.E. 8-9).

Plaintiffs, however, never challenged the Army's decision to 
reject the complaint for processing as an administrative class 
action; nor did they pursue individual complaints of

6



discrimination. Instead, the plaintiffs attempted to institute 
a fresh class action in district court. On January 20, 1985, 
the plaintiffs filed a class action complaint alleging that 
their action was brought pursuant to Rule 23 (a) and (b)(2) of 
the Federal Rules of Civil Procedure and asserting exhaustion of 
administrative remedies. (R.E. 3-6). At the time the civil 
action was filed, however, the Army had not rendered any 
decision on the merits of the class action allegations or on 
any named plaintiff's individual complaint of discrimination.

In district court, the government moved to dismiss for lack 
of jurisdiction. The motion was based on two separate grounds: 
First, the government argued that the named plaintiffs lacked 
standing because they had failed to allege that they had 
personally suffered any individualized, concrete injury. 
(Original Record on Appeal, Tab 4, pp.. 8-9). Second, the 
government argued that the plaintiffs had failed to exhaust 
administrative remedies with respect to maintaining a class 
action in federal court. (Original Record on Appeal, Tab 4,
pp.10-16).

The district court concluded that the plaintiffs had indeed 
failed to exhaust their administrative remedies and it there­
fore dismissed the action for lack of subject matter jurisdic­
tion. The court first reasoned that the plaintiffs had not 
challenged the Army's refusal to process the administrative 
complaint as a class action but had instead attempted to proceed 
with a class action in the district court. The court then

7



observed that the Army had not decided the merits of the class 
allegations or ruled on the merits of any named plaintiff's 
individual complaint of discrimination. Consequently, the 
court, without addressing whether the plaintiffs had standing to 
maintain the suit, dismissed the case for lack of jurisdiction 
on the ground that the plaintiffs had failed to exhaust their 
administrative remedies. (R.E. 128-130).

SUMMARY OF THE ARGUMENT
The district court correctly dismissed this case for failure 

to exhaust administrative remedies. Title VII of the Civil 
Rights Act of 1964 vests agencies with the exclusive initial 
authority to adjudicate claims of discrimination in federal 
employment. This adjudicatory authority encompasses allegations 
of class-wide discrimination. Applicable regulations therefore 
establish a fair and comprehensive framework for pursuing an 
employment discrimination class action through the 
administrative process. These remedies must be exhausted before 
a federal court has jurisdiction to consider certifying a classi
action under Rule 23.

The appellants attempted to institute a class action in 
federal court before the agency had rendered a decision on the 
merits on any of the class or individual allegations of 
discrimination. At the time suit was filed, the agency had 
decided only that the appellants could not maintain an 
administrative class action but must instead proceed with 
individual complaints of discrimination.Rather than contest this

8



decision or proceed with individual claims of discrimination, 
the appellants filed a fresh class action in federal court.

An aggrieved employee, however, cannot satisfy the statutory 
requirement of exhaustion of remedies merely by obtaining a 
preliminary procedural ruling from the agency. To the contrary, 
the statutory scheme requires that a court refrain from 
adjudicating an employment discrimination claim unless and until 
the agency has had a full opportunity to remedy the problem 
through the administrative enforcement machinery mandated by 
Congress. The district court correctly decided that the 
appellants had not exhausted these administrative remedies and 
its order should therefore be affirmed.

ARGUMENT
THE APPELLANTS FAILED TO EXHAUST ADMINISTRATIVE 
REMEDIES AID THE DISTRICT COURT PROPERLY 
DISMISSED THE CASE.__________________________

Administrative remedies play a crucial role in the 
eradication of discrimination in federal employment. The 
Supreme Court has stated that the remedial scheme set out in 
section 717 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-16, 
"does not contemplate merely judicial relief. Rather, it 
provides for a careful blend of administrative and judicial 
enforcement powers." - Brown v. General Services Administration, 
425 U.S. 820, 833 (1976). Consequently, the Court has held that 
resort to the administrative remedies contemplated by section 
717 is a precondition to filing an employment discrimination 
suit in federal district court. Brown, 425 U.S. at 832.

9



In light of the significance of the administrative remedies
in the enforcement of rights under Title VII, the courts have 
consistently held that a federal employee may not maintain a 
Title VII action in federal court until applicable administra­
tive remedies are exhausted. Griffin v. Carlin, 755 F.2d 
1516,1529-30 (11th Cir. 1985); Lewis v. Smith, 731 F.2d 1535, 
1540 (11th Cir. 1984); Patton v. Brown, 95 F.R.D. 205 (E.D. Pa. 
1982); Thomas v. United States Postal Service, 33 FEP Cases 
521 (N.D. Cal. 1981)(appendix pp. la-3a); Williams v. U.S. 
Postal Service, 33 FEP Cases 533 (N.D. Ga. 1983)(appendix pp. 
5a-7a). This holding follows from the general principle that a 
court should not prematurely intrude into the administrative 
process but should instead permit an agency to attempt 
resolution of the disputed matters. See generally McKart v. 
United States, 395 U.S. 185, 193-94 (1969); Bell v. New Jersey 
and Pennsylvania, 461 U.S. 773, 778-780 (1983). Moreover, 
this holding accords with the statutory scheme, which clearly 
reflects Congress' expectation that agencies have the initial 
adjudicatory authority for remedying discrimination charges 
under Title VII. Brown, 425 U.S. at 831-33; Patton, 95 F.R.D. 
at 208.

An agency's adjudicatory authority clearly encompasses the 
authority to rule on class-wide allegations of employment 
discrimination. It is well settled that the remedial scheme set 
out in Title VII requires administrative consideration, 
processing, and resolution of complaints raising issues of class

10



discrimination. Barrett v. United States Civil Service
Commission, 69 F.R.D. 544,553 (D.D.C. 1975). The current 
regulations outlining procedures for pursuing administrative 
remedies for class-wide discrimination were developed 
specifically to discharge this administrative enforcement 
obligation. See generally Griffin v. Carlin, 755 F.2d 1516,1529- 
31 (11th Cir. 1985). Thus, in proposing the administrative 
class action regulations, the Civil Service Commission stated 
that the regulations were "designed to assure Federal employees 
and applicants for Federal employment of their right to fair and 
fast adjudication of class discrimination complaints and to 
ensure that Federal agencies move affirmatively in accordance 
with the law in effecting equal employment opportunity for all 
persons. " 41 Fed. Reg. 8079 (1976).^

These remedies for class-wide discrimination must be 
exhausted before class claims may be raised in federal court. 
Lewis v. Smith, 731 F.2d 1535, 1540 (11th Cir. 1984). At the 
very least, one of the named plaintiffs must exhaust to the 
administrative class action process before filing a class action 
in federal court. Patton v. Brown, 95 F.R.D. 205 (E.D. Pa.
1982); Williams v. U.S. Postal Service, 33 FEP Cases 533

The Civil Service Commission published final regulations for 
administrative class actions on March 1, 1977. 42 Fed. Reg.
11802 (1977). After the transfer of federal government equal 
opportunity enforcement authority to the EEOC, the EEOC adopted 
and recodified the Civil Service Commission regulations without 
substantial modification. 43 Fed. Reg. 60900 (1978).

11



(N.D. Ga. 1983); Thomas v. U.S. Postal Service, 33 FEP Cases
521 (N.D. Ca. 1981); Downes v. Adams, 33 FEP Cases 930
(E.D .N.Y.)(appendix pp. lla-13a); Moore v. Orr, 33 FEP Cases
523 (D. Col. 1982)(appendix pp. 3a-4a)); McIntosh v. Weinberger,

234 FEP Cases 911 (E.D. Mo. 1984)(appendix pp. 8a-10a).
The importance of exhausting administrative remedies was

explained in Patton v. Brown, supra:
"To allow plaintiff to maintain (a) class 
action without the benefit of prior 
administrative investigation, in complete 
disregard of the regulations, certainly does 
not conform to Congress' expectation that 
agencies should have initial adjudicatory 
authority for remedying discrimination 
charges under Title VII. While I am well 
aware that a court should not erect 
technical, procedural barriers to suit under 
Title VII, there is a counter-vailing 
interest in encouraging agency resolution of 
Title VII disputes. This interest weighs in 
favor of requiring compliance with procedures 
designed to achieve informal resolution to 
the benefit of the class members as well as 
the agency."

Patton, 95 F.R.D. at 208 (citation omitted).
On the facts of this case, it is clear that the appellants 

did not exhaust the appropriate administrative remedies and were 
not entitled to maintain a class action in federal court. At

There is some contrary authority: Fitzwater v. Veterans
Administration, 90 F.R.D. 435 (S.D. Ohio 1981); Chisolm v.
U.S, Postal Service, 665 F.2d 482 (4th Cir. 1982). These 
cases appear to be wrongly decided as they would circumvent the 
administrative process for handling class actions and undercut 
the adjudicatory role assigned by Congress to the administrative 
agencies. See McIntosh, 33 FEP Cases at 913; Downes, 33 FEP 
Cases at 930-31.

12



the time the suit was filed, the only decision that had been 
rendered by the Army stated that the administrative complaint 
could not be "certified" as an administrative class action. Had 
appellants sought review of this decision, the district court 
would have had the opportunity to consider whether the agency 
erred in rejecting the class action complaint. The district 
court would then have reviewed whether an administrative class 
action could be maintained, thereby vindicating the appellants' 
interests in proceeding with the adjudication of properly 
raised class-wide allegations of discrimination and protecting 
Congress' fundamental interest in insuring that the agencies 
maintain initial adjudicatory authority over complaints of 
employment discrimination.

The appellants, however, did not challenge the agency's
rejection of the class complaint. The judicial complaint does
not allege procedural deficiencies in the admininstrative
decision-making or contend that the applicable regulations
mandated processing of the administrative complaint as a class 

3 1action. Nor does the complaint allege -- as the appellants 
argue here for the first time -- that the administrative class 
action regulations fail to provide a fair opportunity to 
demonstrate the necessity of processing an administrative

Although the government noted in its motion to dismiss that 
the complaint could not be construed to challenge the agency's 
ruling (O.R.A. Tab 4, p.3), the appellants did not amend the 
complaint to include such allegations.

13



complaint as a class action. Instead, the allegations relate 
solely to whether a class action could be maintained in federal 
court. (R.E. 3-7).

The district court was therefore correct in holding that the 
appellants had not exhausted their administrative remedies. The 
court expressly noted the appellants did have a right "to file a 
civil action challenging the rejection of their class 
complaint," but the court further observed that, "The complaint 
in this action does not challenge the agency's ruling regarding 
the class complaint." (R.E. 128-129). The court therefore 
characterized the complaint as an attempt to proceed with a 
fresh class action in district court. (R.E. 129). As the merits 
of the allegations of class-wide discrimination had not been 
decided by the agency, the court concluded that the appellants 
had failed to pursue and exhaust their administrative remedies. 
(R.E. 129).

The appellants challenge this holding on several grounds. 
First, they assert that the statute specifically provides that a 
federal employee has the right to file a civil action in federal 
court immediately upon a final agency decision disposing of a 
complaint. Thus, the appellants' argue, they were entitled to 
proceed directly to federal court without lodging an appeal with 
the EEOC. (App. Brief 21-22). This argument, while true in 
certain respects, is wide of the mark. The statute clearly 
provides for direct judicial review of the subject matter of the 
agency's action on a discrimination complaint; nothing in the

14



statute, however, suggests that a plaintiff may seek .judicial
review of matters that were not properly before the agency for
decision. Congress has made clear that the federal agencies have

4initial adjudicatory authority over discrimination claims.
This statutory requirement would be defeated if an employee 
could circumvent administrative remedies merely by obtaining a 
preliminary procedural ruling from the agency and then 
challenging in court a host of matters that have not been 
reached in the administrative decision-making process. Cf. 
Johnson v. Bergland, 614 F.2d 415, 417-418 (5th Cir. 1980)
(court should not reach the merits if agency rules on procedural 
grounds and does not rule on the merits of the discrimination 
claim). The only decision reached by the agency related to 
whether the administrative complaint could proceed as an 
administrative class action; consequently, the only issue that

There is one exception to the requirement that the agency 
adjudicate the complaint before a civil action may be filed.
The statute provides that if the agency or the EEOC fails to 
acts on a matter within 180 days, the aggrieved employee may 
file suit in federal court. 42 U.S.C. 2000e -16(c). The 
purpose of this provision has been explained as follows: "The
180 day provision represents a Congressional determination that 
providing prompt access to the courts in discrimination disputes 
is so important that the administrative process will be given 
only a finite time to deal alone with a given dispute."
Grubbs v. Butz, 514 F.2d 1323, 1328 (D.C. Cir. 1975). (emphasis 
added) Thus, if -- and only if -- the agency fails to act 
promptly, it loses its exclusive initial adjudicatory authority 
over the dispute. On the facts of this case, however, it is 
clear that the Army acted well within the statutory time 
frame: the complaint was initiated on August 31, 1984 and a
final decision was reached approximately 125 days later on 
January 4, 1985.

15



could have been raised in the district court was whether that 
decision was in accordance with applicable law.

Second, the appellants suggest that fundamental deficiencies 
in the regulatory scheme make exhaustion of administrative 
remedies a futile act which need not be performed before seeking 
judicial intervention. (App. Brief 14-15). This argument, 
however, fails on several grounds. It is by no means apparent 
that resort to the administrative process is a futile act. In 
particular, the regulations clearly articulate the standards for 
maintaining an administrative class action, provide adequate 
access to the information needed to demonstrate compliance with 
those standards, and subject the agency's decision to reject or 
accept the class complaint to de novo review. For example, the 
employees may obtain relevant information after the. class 
complaint is accepted through interrogatories and other dis­
covery devices. Moreover, and as the appellants recognize, both 
the complaints examiner and the Equal Employment Opportunity 
Counselor have the power to obtain information bearing on 
whether the complaint should proceed as a class action before 
the class complaint is accepted or rejected. (App Brief 12- 
13). Contrary to appellants' assertion,these measures are not 
futile but instead provide a full and fair opportunity -to raise 
allegations of class-wide discrimination at the administrative 
level.

In addition, the requirement that an employee exhaust these 
administrative remedies is a jurisdictional requirement that may

16



not be waived on the basis of such equitable considerations as 
the alleged futility of undertaking the prescribed actions. In 
Brown, the Supreme Court characterized an attempt to secure 
relief from, the federal agency as a precondition to maintaining 
suit. Subsequent decisions therefore characterized exhaustion 
of administrative remedies as a jurisdictional prerequisite to 
suit. See, e.g., Swain v. Hoffman, 547 F.2d 921,923 (5th Cir. 
1977); Downes v. Adams, 33 FEP Cases 929 (E.D.N.Y. 1982). Other 
decisions later held that adherence to the time limits on 
requesting administrative relief was not jurisdictional but was 
instead subject to waiver, estoppel, and equitable tolling.
Zipes v. Trans World Airlines, 455 U.S. 385 (1982); Milam v. 
United States Postal Service, 674 F.2d 860,862 (11th Cir.
1982); Berry v. Pierce, 98 F.R.D. 237 (E.D. Tex. 1983). 
Nonetheless, no decision holds that exhaustion of appropriate 
administrative remedies may be waived entirely; the cases hold 
only that untimely resort to administrative remedies will not 
necessarily bar a civil action. Thus, those cases holding that 
exhaustion of administrative remedies is a jurisdictional 
prerequisite remain good law and preclude arguments that 
exhaustion may be waived if the remedies appear to be futile.

The appellants had an adequate -remedy in this case. The 
administrative process afforded the appellants a reasonable 
opportunity to show why a class action was appropriate. A 
decision on the complaint was rendered promptly, the bases for 
the decision were clearly explained, and notice of the right to

17



appeal the decision was communicated to each representative of 
the putative class. The appellants attempted to circumvent this 
administrative process by ignoring the administrative decision 
and instituting a fresh class action suit in district court.
The district court properly concluded that the civil action on 
the merits of the class allegations, in the absence of an 
administrative decision on the merits, was premature. This 
court should therefore affirm the decision below.

CONCLUSION
For the foregoing reasons, the order of the district court 

should be affirmed.
Respectfully submitted,

RICHARD K. WILLARD
Assistant Attorney General

HINTON R. PIERCEUnited States Attorney
ROBERT S. GREENSPAN
JEFFREY CLAIRAttorneys, Appellate Staff 
Civil Division, Room 3617 
U.S. Department of Justice 
Washington, D.C. 20530
Telephone; (202) 633-3602

18



CERTIFICATE OF SERVICE
I hereby certify that on this _th day of December, 1985, I

served the foregoing Brief For Appellees upon counsel of record
by causing two copies to be mailed, postage prepaid, to:

Julius LeVonne Chambers 
Charles Stephen Ralston 
99 Hudson Street 
16th Floor
New York, New York 10013
Kenneth Dious 
George W. McGriff 
Carol R. McGriff 
680 S. Mi Hedge Avenue 
Athens, GA 30605

JEFFREY CLAIR, Attorney

19



■ A P P E N D I X



regarded as an excellent teacher. (Tes­
timony of Dr. Roberts, Dr. Detlefsen),

CONCLUSIONS OF LAW

thirty committees. The report, in rele­
vant part, states,
Tee operation of the department depends on 
S  members cooperating by serving, either 
voluntarily by appointment, on at least thir- 
-T departmental, school, or college commit- 
-Tes annually. Our evidence is that Dr. Hou is 
iiir-g a minimal amount of departmental 
and college work other than teaching his 
normal course load. During the last five 
j “ars he has served on the departmental 
Tenure and Sabbatical Leave committee 
twice, the Math 101 committee and the usual 
textbook selection committees. (Defendant’s 
Z_x.v- A). - -- . V. >

While there is some ambiguity, we 
accept the testimony o f numerous wit­
nesses from the College that the evalu­
ation merely referred to plaintiff’s obli­
gation to help meet the required de­
partmental participation on thirty- 
committees, not that each faculty 
member was expected to serve on thir­
ty committees.

We have noted the college's presenta­
tion of a statistical analysis by its ex­
pert. Dr. Romboski, demonstrating 
that failure to be promoted, even after 
a number of applications, is not statisti­
cally significant. As the court stated in 
Presseisen v. Swarthmore College, 442 
F.Supp. 593, 15 FEP Cases 1466 (E.D. 
Pa. 1977), aff’d. 582 F.2d 1275, 18 FEP 
Cases 866 (3d Cir. 1978), the best that 
can be said about statistical evidence 
concerning promotions is that it is a 
very difficult area to statistically har­
ness. While plaintiff offered no statisti­
cal analysis of his own. we believe plain­
tiff's expert’s rebuttal o f the methodol­
ogy of defendant’s report serves to 
show the difficulty inherent in such an 
area. Even without the statistical re­
port, we believe that the defendant has 
articulated a legitimate basis-for dispa­
rate treatment o f  plaintiff which could 
be considered reasonable and support­
ed by the evidence. -

The major part of plaintiff’s case was 
devoted to a recital of his own profes­
sional accomplishments. We do not. in 
any way. discount these, nor .do we 

• :ei:eve the college did, as evidenced by 
“ tuigs of "excellent'’ in Mastery of 
Subject Matter. Testimony as to cer- 
:a_n other accomplishments, such as 
Dr. Hou's success in tutoring math 
students for a national intercollegiate 
mathematics competition, the Putnam 
Competition, varied as to its bearing on 
'■ caching effectiveness. While Dr. Hou 
found the success of the participants 
reflective of his teaching effectiveness, 
other faculty members testified that 
the competition affected few students 
ar.d was not in itself cause for him to be

We find that plaintiff has not proven 
by a preponderance of the evidence 
that defendant Slippery Rock College 
discriminated against plaintiff on the 
basis of race by failing to promote 
plaintiff to the rank of full professor, 
in violation of Title VII of the Civil 
Rights Act of 1964, as amended. Plain­
tiff presented a prima facie case of 
discrimination as to defendants failure 
to grant a promotion to plaintiff. How­
ever, defendant has rebutted plaintiff’s 
prima facie case, articulating a legiti­
mate. non-discriminatory job-related 
reason for its decision not to promote 
plaintiff based on teaching effective­
ness. Plaintiff was unable to show that 
this reason was pretextual.

Plaintiff has not proven, by a prepon­
derance of the evidence, that he was 
subjected to different terms and condi­
tions of employment because of race or 
national origin. To the contrary, it ap­
pears that plaintiff was judged by the 
same criteria as other faculty members 
and found deficient in one or more 
areas considered by the college to be 
important for promotion to full profes­
sor.

In summary, plaintiff has not shown 
that any disparate treatment was the 
result of purposeful discrimination in 
violation of Title VII of the Civil 
Rights Act of 1964, as amended, or in 
violation o f 42 U.S.C. § 1981.

An appropriate order will issue.

Order
" AND NOW, to-wit, this 7th day of 
November, 1983. in accordance with the 
accompanying Findings of Fact. Dis­
cussion, and Conclusions of Law, fol­
lowing a nonjury trial, it is ORDERED 
ADJUDGED and DECREED that 
judgment be and hereby is entered in
fn’-nr r\f n o f o n H o n f  on r l  nerpin^f P la in -favor o f Defendant and against Plain­
tiff Dr. Roger Hou.

THOMAS v. U.S. POSTAL SVC.

y U.S. District Court, 
Northern District of California

THOMAS, et al. v. UNITED STATES 
POSTAL SERVICE, et al.. No. C-81-36 
RPA. October 20,1981



33 FEP Cases 522 THOMAS v. U.S. POSTAL SVC.

REHABILITATION ACT OF 1973 
Federal employment — Class action 

► 110.2208 ► 110.75 ► 110.125 
U.S. Postal Service employee who 

exhausted administrative remedies 
with respect to his individual claim but 
who never filed class claim at agency 
level may not maintain his action un­
der Rehabilitation Act of 1973 as class 
action.

Aciion under Rehabilitation Act of 
1973 bv employee against U.S. Postal 
Service, wherein employee moved for 
class certification. Motion denied.

John Plotz (Mocine & Plotz), Oak­
land. Calif., for plaintiff.

Deborah Seymour, Assistant U.S. At­
torney for the Northern District of 
California, for defendants. . L

Full Text of Opinion ' r f .

AGUILAR. District Judge: — 1 /I ;

OPINION AND ORDER DENYING 
PLAINTIFF'S MOTION FOR • 

CLASS CERTIFICATION

This action is before the Cburt on 
plaintiffs motion to certify a class of 
former and present United States Post­
al Sendee employees assigned to Pay 
Location 902 ("902") at the Oakland, 
California Post Office. Plaintiff al­
leges. hater alia, that defendants have 
maintained a workforce that is segre­
gated by handicap and have subjected 
said workforce to a policy of discrimi­
natory employment practices. First 
Amended Complaint. <1H VI-VII.

BACKGROUND
• 7 • 4k— —

In January of 1981, plaintiff Arthur 
Thomas brought an individual action 
against defendants alleging that he 
had been subjected to discriminatory 
policies by defendants because of his 
physical handicap. In July of 1981, 
plainTff filed a motion for summary 
judgment. Although this Court denied 
that motion (Order of August 20.1981), 
it granted plaintiff leave to file an 
amended complaint.

Pursuant to the Court's leave, plain­
tiff t ied an amended complaint on 
August 27, 1981, at which time he 
framed his original cause of action as a 
class claim. He alleged generally, that 
all of employees of 902 were assigned to 
that location only because they were 
victims of a physical or mental impair­
ment acquired while employed by the

Postal Service, or because they had a 
record of such impairment, or because 
defendants regarded them as having 
such an impairment. The complaint 
further charged defendants with dis­
criminatory policies and practices as 
noted above. First Amended Complaint' 
IIVII.

On the basis of said amended com­
plaint, plaintiff now wishes to pursue a 
class action at the district court level 
and accordingly, seeks certification of a 
class composed of "all persons who 
worked in the Oakland Section Center 
at Pay Location 902 at any time be­
tween September 2,1979. (or such earli­
er date as may be appropriate) and the 
present." P i ’s. Memorandum in Sup­
port of the Motion for Determination 
of Class at 2. ,.j

DISCUSSION

Although Mr. Thomas has consis­
tently alleged the existence of a "poli­
cy” of discriminatory practices at 902, 
and filed an individual grievance on his 
own behalf at the administrative level, 
he has never filed a class claim per se at 
the agency level. It is plaintiff’s posi­
tion that as long as he has exhausted 
his administrative remedies with re­
spect to his individual claim, he may 
now pursue a class action at the district 
court level. Defendants, however, urge 
that the exhaustion requirements set 
forth at 42 U.S.C. §2000e-16(c) require 
that plaintiff pursue the class action 
procedures outlined at 29 C.F.R. 
1613.607.

While it is clear that every prospec­
tive class member need not exhaust his 
individual administrative remedies be­
fore a class action may proceed, Barrett 
v Civil Service Commission, 69 F.R.D. 
544, 10 E.P.D. 1110,586, 11 FEP Cases 
1089 (D.D.C. 1975), plaintiff’s assertion 
that no individual in the prospective 
class need present a class complaint at 
the administrative level prior to pursu­
ing such a cause of action at the district 
court level is wholly misplaced.

Both parties cite James v. Rumsfeld. 
580 F.2d 224, 17 FEP Cases 1398 (6th 
Cir. 1979) as supportive of their respec­
tive positions regarding the exhaustion 
requirement. In Rumsfeld the court 
dismissed a •complaint alleging racial 
and sexual discrimination regarding 
any individual matter because the mat­
ter was initially filed as a "third party 
allegation” of discrimination. While 
Rumsfeld was concerned with the gen­
erality of third party allegations ot 
discrimination as opposed to the ex­
haustion requirement per se, the



MOORE v. ORRcourt's dictum on that issue is control-
ling.

In support of their proposition that 
an official complaint at the agency 
level in which an individual claimant 
clearly states that he wishes to be the 
• agent for a class” is not a necessary 
prerequisite to the later filing of a civil 
suit, plaintiffs’ cite the Rumsfeld court 
as follows:
We need not address the question of whether 
it is still sufficient before bringing a federal 
class action, to have merely a class represen­
tative who has exhausted his individual ad­
ministrative remedies. Although Williams, 
supra. 'Williams v. Tennessee Valley Author­
ity. 552 F.2d 691. 14 FEP Cases 998 .'6th Cir. 
1S771 suggests an affirmative answer, that 
case dealt with administrative relief begun 
before the effective date (April 18. 1977) of
the new regulations__(emphasis supplied)
,580 F.2d at 228 n.5>.
However, the remainder of that quota­
tion reads as follows: ,
.... Litigants can avoid, uncertainty by re~ 
sorting to the administrative class complaint 
procedure prior to filing a federal class ac­
tion in a district court (Emphasis added.) 
Moreover, the Court noted that federal 
regulation regarding suits by federal 
employees were revised to include a 
new section for the filing of class ac­
tions: ” as to class actions, then, the 
preferred administrative route for 
meeting § 1717(c)’s (See 42 U.S.C. 
f 2000e-16(c)) requirement is now the 
filing of a class complaint initially at 
the agency level.” Id. at 228. (Emphasis 
added.)

It is also significant to note that the 
key cases cited by plaintiff in support 
o f his position were all decided before 
the promulgation of the new federal 
regulations dealing specifically with 
class actions: Sanchez v. Standard 
Brands, Inc., 431 P.2d 455, 2 FEP Cases 
783 15th Cir. 1970); Oatis vu Crown 
Zeilerbach Corp., 3S8 F.2d 496, 499, 1 
FEP Cases 328. 63 LRRM 2732 (5th Cir. 
1963 r. Sylvester v. United States Postal 
Service, 393 F.Supp. 1334, 1341, 10 FEP 
Cases 758 (S.D. Texas 1975).__

Thus, in light of the strong judicial 
preference for exhaustion of adminis­
trative procedures (See generally, 
McXart v. United States, 395 U.S. 185
1963)), together with the language of 

Rumsfeld, supra, which clearly reaf­
firms that preference, plaintiff’s mo­
tion for class certification at this time 
is premature.

For the above reasons and good cause 
appearing therefor, plaintiff’s motion 
for ciass certification is DENIED.

U.S. District Court.
District of Colorado

MOORE v. ORR, Secretary of the 
Air Force, et al„ No. 81-M-1S24, Febru­
ary 2,1982
CIVIL RIGHTS ACT OF 1964 

Federal employment — Class action 
► 110.125 ► 110.2208 

U.S. Air Force employee has failed to 
exhaust administrative remedies avail­
able for members o f class, where she 
failed to assert class claims in her ad­
ministrative complaint, which she pur­
sued entirely as individual complaint.

Action under Title VII of Civil Rights 
Act of 1964 by employee against US. 
Air Force and base commander, where­
in Air Force moved to dismiss or. in the 
alternative, for summary judgment. 
Class certification den ie i and base 
commander dismissed as defendant, 

Penfield W. Tate, n  (Trimble & 
Tate), Denver, Colo., for plaintiff.

Robert N. Miller, U.S. Attorney for 
the District of Colorado, and Robert G. 
Gurthe, Assistant U.S. Attorney, for 
defendants.

Full Text of Opinion
MATSCH, District Judge: — This civ­

il action was initiated by a complaint, 
filed November 4, 1931. by a_black 
female civilian employee of the united 
States Air Force, working at Lowry Air 
Force Base in Denver, Colorado. The 
complaint includes allegations of a 
class action, seeking relief on behalf of 
all black female persons now employed, 
who were employed, or who might have 
been employed or might become em­
ployed, since 1965, and who have been 
or might be adversely affected by the 
hiring, promotional and seniority sys­
tem employed by the Air Force at Low­
ry Air Force Base. A motion to dismiss, 
or alternatively, for summary judg­
ment, challenges the class allegations 
on the ground that the plaintiff failed 
to assert ciass claims in her formal 
administrative complaint, which was 
pursued entirely as an individual com­
plaint. Accordingly, it is asserted that 
this plaintiff has failed to exhaust the 
administrative remedies available for 
members of the class.

I am in agreement with that position. 
Additionally, the complaint does not 
make the required allegations under



'■■■$&' WWW ̂ yrntr****̂ **™** iVTf,■ ..ss-a^M tsagg

33 FEP Cases 524 JOHNSON v. BOND

Rule 23(a) and the class which is 
sought to be created here is wholly 
unmanageable. Additionally, the com­
plaint fails to state a claim for relief 
within the jurisdiction of this court 
against the defendant Titus C. Hall. 
Upon the foregoing, it is 

ORDERED, this civil action will not 
be maintained as a class action, but will 
proceed upon the individual claims of 
the plaintiff, and it is 

FURTHER ORDERED, that the de­
fendant Titus C. Hall is dismissed from 
this civil action.

JOHNSON v. BOND

.. U.S. District Court,
Northern District of Illinois

JOHNSON, et al. v. BOND, Adminis­
trator Federal Aviation Administra­
tion, No. 80 C 0080, April 6,1982
CIVIL RIGHTS ACT OF 1964

1. Federal employment — Class ac­
tion ► 110.2208 ► 110.125

Federal Aviation Administration 
(FAA) employees’ filing of individual 
grievances at administrative level are 
insufficient to satisfy requirement of 
exhaustion of class action administra­
tive remedies, but one employee’s class 
allegations will not be dismissed in view 
of FAA’s failure to show conclusively 
that he failed to comply with class 
action administrative procedures be­
fore bringing Title VII action.

2. Federal employment — Class ac­
tion — Geographic definition
► 110.2208 ► 108.7512

Black. Federal Aviation Administra­
tion (FAA) employees whose claims 
involve alleged discrimination at three 
FAA facilities may not seek to repre­
sent class from six-state region, where 
they have not established any basis 
from which it could be inferred that 
FAA discriminates on region-wide ba­
sis.

3. Federal employment — Class ac­
tion _  Commonality ► 110.2208
► 108.7504

Federal Aviation Administration em­
ployees have iaiied to satisfy common­
ality requirement for maintaining their 
Title VH action as class action, where 
their own claims would require explo­
ration at trial of two entirely distinct 
employment situations, and putative 
class would involve employees in still 
different employment conditions.

4. Federal employment — Class ac­
tion — Typicality ► 110—208
► 108.7505

Claims of Federal Aviation Adminis­
tration employees who seek to main­
tain their Title VII action as class ac­
tion are not typical of those oi putative 
class members in that such claims do 
not arise out of common factual ana 
legal situation, but, rather, their claims 
are personal and are susceptible to 
individual defenses.

5. Federal employment — Class ac­
tion — Adequacy of representation
► 110.2208 ► 108.7507

Black Federal Aviation Administra­
tion employees have not met adequacy 
of representation requirement tor 
maintaining their Title VII action as 
class action, where separate claims oi 
denial of promotion can present sub­
stantially different facts with result 
that employees' energies may end up 
being directed toward presenting ana 
defending their own claims at expense 
of class, and there is even possibility ot 
conflict of interest because it could 
develop that other putative class mem­
bers competed with one of the employ­
ees for particular promotion or place­
ment. ,

Action under Title VII of Civil Rights 
Act of 1964 by employees against Fea- 
eral Aviation Administration, wherein 
employees moved for class certifica­
tion, and FAA moved to dismiss class 
allegations or, in the alternative, fo 
judgment on pleadings as to such alle­
gations. Both motions denied.

Martin P. Greene (LaFontant, Wil­
kins & Butler), Chicago, 111., for plain-

1 Martin B. Lowery, Assistant U.S At­
torney for the Northern District of 
Illinois, for defendant.

Full Text of Opinion
GETZENDANNER. District Judge: 

— This matter is before the court on 
plaintiffs’ motion for class certification 
and defendant’s cross-motion to dis­
miss the class allegations or in me 
alternative, for judgment on the plead 
ings as to the class action all?^rions. 
These motions raise issues of both a 
procedural and a substantive nature.
Background, of the Case

Plaintiffs are three black federal em­
ployees or former employees. Defen 
dant Bond is the Administrator of the



I ....... ....

and the Rehabilitation Act of 1973. 
This action is before the court on the 
plaintiffs’ motion for certification of a 
class action. Fed. R. Civ. P. 23(b)(2), 
and the defendant's motion to dismiss 
the class allegations.

Plaintiffs assert that the employ­
ment practices of the defendant United 
States Postal Service (Postal Service) 
constitute unlawful and prohibited em­
ployment discrimination based on phy- 
sicial condition and handicap. Plain­
tiffs seek, damages and injunctive relief 
as individuals and as representatives of 
the class of employees subject to the 
defendant’s allegedly discriminatory 
employment practices. In response, the
Postal Service argues that the plain­
tiffs are barred from bringing a class 
action because they failed to exhaust 
the administrative remedies prescribed 
for class action complaints o f employ­
ment discrimination. See 29 C_F.R- 
51613.601-.643 (1981). Postal Service 
also argues that the plaintiffs have 
failed to satisfy the prerequisites for 
maintaining a class action. See Rule 23. 
Fed. R. Civ. P.

Plaintiff Williams received a career 
appointment as a mailhandler with the 
Postal Service in 1973. In 1976 he was 
given a limited duty assignment after 
being diagnosed as having a permanent 
low back condition. Limited duty as­
signments are made for employees un­
able to perform their regular duties 
because of on-the-job illness or injury. 
Plaintiff Washington became a full­
time mail-handler in 1977. He was diag­
nosed as suffering from a permanent 
military service-connected joint disease 
in 1981 and received a light duty assign­
ment. Light duty assignments are given

. .. .... _ to employees with injuries or illnesses
Action under Rehabilitation Act of that are not job-related.

1973 by employees against U-S. Postal Qn May 16,1981, twenty-one employ- 
Service, wherein employees moved for ees on light arid limited duty, including 
i-Im ; certification, and Postal Service the individual plaintiffs in this action, 
moved to dismiss class allegations. E n t w’ere reassigned from their regular du- 
ployees' motion denied, and Postal Ser- tjes t0 a newly established 1:00 a.m. to 
vice’s motion granted. 9:50 a.m. work tour. All employees as-

Curtis A. Thurston. J r , Atlanta, Ga., signed to this tour were light- and 
for plaintiffs. - limited-duty employees. On June 13.

Nina L. Hunt, Assistant U.S. Attor- 1981, this tour was abolished and all 
ney for the Northern District of Geor- the employees were returned to their 
g-a and Harvey D. Rurneid, Washing- original work schedules.
-on. D.C., for defendant. Plaintiff Williams filed an Equal Em-

ILS. District Court, .
Northern District of Georgia j - ‘

WILLIAMS, et- aL v. UNITED 
STATES POSTAL SERVICE. No, C82- 
2230A. July 13.1983
REHABILITATION ACT OF 1973 

federal employment — Class action 
► 110.123 ► 110.2208 ► 110.75 c- V 

US. Postal Service employees’ failure 
to exhaust administrative remedies 
prescribed by EEOC for class action 
complainants precludes them from 
bringing class action under Rehabilita­
tion Act of 1973, especially since their 
administrative complaints contain spe­
cific allegations of discrimination 
against them and do not allege pattern 
or practice of discrimination against a 
class. . - ■’- " ; :'V

Full Text o f  Opinion
FREEMAN. District Judge: — Plain­

tiffs brought this.employment discrim­
ination action pursuant to Title VII of 
the Civil Rights Act of 1964. as amend­
ed by the Equal Employment Opportu­
nity Act o f 1972, 42 UJS.C. §2000e-16,



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33 FEP Cases 534 WILLIAMS v. U.S. POSTAL SVC.
tember 15,1982, with final agency deci­
sions finding no discrimination.

The instant class action was filed on 
October 25, 1982. Plaintiffs assert that 

- they and all other light and limited 
duty employees of the defendant were 
unlawfully discriminated against when 
they were reassigned to the special 
work: tour in May 1981 and that the 
reassignment was part of a longstand­
ing and continuous pattern of employ­
ment discrimination by the defendant.

The Rehabilitation Act of 1973 re­
quires that claims of handicap discrimi­
nation be pursued in accordance with 
the procedural requirements of Title 
VIL See 29 U.S.C. §§791. 794a (1); 
Shirey v. Campbell. 27 FEP Cases 1142 
iD.D.C. 1980), reversed and remanded 
on other grounds sub nom. Shirey v 
Devine, 670 F.2d 1188, 27 FEP Cases 
1148 (D.C. Cir. 1982). Plaintiffs filed 
this action after having exhausted all 
of the administrative remedies pre­
scribed for; individual complaints of 
handicap discrimination. See 29 C.F.R.
§ 1613.201-.283~ (1981). Equal Employ­
ee™  Opportunity Commission 
(LtiOC) regulations, pursuant to sec- 
tion 717(b) of Title VII, prescribe the 
administrative procedures for filing 
class complaints of handicap discrimi­
nation. See 29 C.FLR. § § 1613.601-.643 
(1981). No class complaints were filed 
m administrative proceedings in this 

. action. Plaintiffs seek tu assert class 
claims for the first time in this courL 
For the following reasons the court 
tinds that the plaintiffs are precluded 
from maintaining this action as a class 

-  action. -
First, plaintiffs failed to pursue their 

complaints at the administrative level 
as class complaints and therefore have 
not exhausted their administrative 
remedies as to the class allegations. 
The established judicial preference for 
exhaustion of administrative remedies 
see, e.g., McKart v. United States. 395 
U.S. 185, 89 S.Ct. 1657 (1968), has been 
applied to the administrative remedies 
provided in Title VII for employment 
discrimination. See Brown v. General 
Services Administration. 425 U.S 820 
96 S.Ct. 1961,12 FEP Cases 1361 ( 1976)! 
Plaintiffs argue that they need not 
nave exhausted the class allegations in 
tms case because chey pursued the 
proper administrative procedures and 
exhausted their individual complaints 
They also assert that Title VII employ­
ment discrimination complaints are by 
their nature class allegations and thus 
any charge asserting grievances com­
mon to a class should be adequate t& 
allow the complainants to bring a ciacs

action. The court finds that the pro­
mulgation of EEOC regulations 
scribing administrative procedures 
class complaints and the case law inter­
preting these regulations undermine 
the plaintiffs position and supersede 
the authority relied upon by plaintiffs.

In 1977 the EEOC promulgated pro- 
cedures for administrative processing 
of class action complaints of discrimi­
nation- See 29 C.F.R. § § 1613.601-.643 
(1981). These regulations were estab­
lished “ in direct response to judicial 
criticism that there was no regulatory 
provision for maintaining class com­
plaints advanced in the context of indi­
vidual claims of discrimination__ ” See
Patton v. Brown. 95 F.R.D. 205 33 FEP 
Cases 529 (E.D. Pa. 1982): Barrett v. 
United States Civil Service Commis­
sion, 69 F.R.D. 544, 11 FEP Cases 1089 
(D.D.C. 1975) (ordering Civil Service 
Commission to modify its regulations) 
In cases arising after promulgation of 
the class complaint procedures, courts 
have found that failure to exhaust the 
administrative class complaint remed- 
ies precludes certification of a class 
when the administrative action is re­
viewed in federal court. See Patton v 
Brown, 95 F.R.D. 205, 33 FEP Cases 529 
(E.D. Pa. 1982); Thomas v. United 
States Postal Service, 27 EPD 732 272 
33 FEP Cases 521 (N.D. Cal. 1981). --- 

The Thomas case arose from a factu­
al background similar to the instant 
case and the court there discussed sev­
eral of the arguments made by the 
parties in this action. In Thomas, the 
plaintiff filed an individual complaint 
at the administrative level in which he 
alleged discriminatory employment 
practices based on physical handicap, 
but he did not file a class complaint 
with the agency prior to pursuing a 
class action in federal court. The plain­
tiff asserted that he need not file a 
class administrative complaint with the 
agency and that his individual com­
plaint sufficiently exhausted the ad­
ministrative remedies. The court how­
ever, found that the plaintiffs argu­
ment rested on cases predating the 
class action regulations and denied the 
motion for class certification as prema­
ture for failure to exhaust class action 
administrative remedies. Id. at 7 32,273.

In the instant case the plaintiffs also 
rely on cases predating the administra­
tive regulations for class action com- 
plaints. See, e.g., Williams v. Tennessee 
Valley Authority, 552 F.2d 691, 14 FEP 
Cases 998 (6th Cir. 1977); Oatis v. 
Crown Zellerbach Corp., 398 F.2d 496,1 
FEP Cases 328, 68 LRRM 2782 (5th Cir. 
1968). The court is aware of no cases



BOUCHET v. NATIONAL URBAN LEAGUE_____________33 FEP Cases 535

arising after promulgation of the class 
action regulations which allowed indi­
viduals to raise class allegations after 
administrative exhaustion of individu- 
--1 complaints. In James v. Rumsfeld, 
530 F.2d 224, 17 FEP Cases 1398 (6th 
Cir. 1978), the court, noting that the 
class action regulations had been pro­
mulgated during the pendency of the 
appeal, reserved the question of wheth­
er exhaustion of individual administra­
tive remedies was sufficient to allow a 
class complaint. The court acknowh 
edged that an earlier case suggested an 
affirmative answer but noted that the 
case arose before the class action regu­
lations were effective. Id. at 228 n.5. 
The James court advised that litigants 
couid avoid uncertainty by complying 
with the class complaint procedure be­
fore filing a federal class action. Id. 
Cases decided subsequently have re­
quired complaintants to follow the 
class action administrative procedures 
ar.d have denied certification motions 
based upon exhaustion of individual 
administrative remedies. See Patton v. 
Brown. 95 P.R.D, 205,33 FEP Cases 529 
E.D. Pa. 1982); Thomas v. United Post­

al Service. 27 EPD 1132,272, 33 FEP 
Cases 521 (N.D. Cal. 1981); Johnson v. 
3ond. 94 F.R.D. 125. 33 FEP Cases 524 
N.D. 111. 1982) (following Thomas’ in­

terpretation of the regulations). The 
court believes these cases to be correct­
ly decided.

Second, the plaintiffs cannot rely on 
the doctrine of equitable modification 
or tolling to raise their class allegations 
in this court after failing to exhaust 
the allegations in an administrative 
proceeding. In Zipes v. Trans World 
Airlines, Inc., 455 U.S. 385, 102 S.Ct. 
i!27, 28 FEP Cases 1 (1982), the Su­
preme Court held that failure to- ex­
haust administrative remedies is not a 
unsdfctional defense, and that the 

time restraints o f Title VII are instead 
.imitations subject to waiver, estoppel, 
and equitable tolling.

Plaintiffs argue that the Zipes logic 
adtms equitable modification of their 
' t-mplaints so that they would not be 
i -t.tided from bringing class allega- 

in this action. However, there are 
---t-ral aspects of the instant case 
■-p.'.h lead the court to conclude that 
rr.: mfication is not appropriate here. In 
Z.pes some class members filed a class 
action complaint within the time limit 
-Prcified in Title VII. The modification 
ssur arose over the question of wheth­
er to exclude from the class action 
: ' me class members who had failed to
. - timely charges with the EEOC. The 

b-preme Court held that modification

was appropriate for these members. In 
contrast, in the instant case, no class 
complaint was filed by any potential 
class member at the agency level, and 
thus the agency did not have the op­
portunity to discover and attempt to 
resolve the alleged class-wide discrimi­
nation. “ To allow plaintifftsl to main­
tain la] class action without the benefit 
of prior administrative investigation, in 
complete disregard of the regulations, 
certainly does not conform to Congress’ 
expectation that agencies should have 
initial adjudicatory authority for reme­
dying discrimination charges under Ti­
tle VII." Patton, 95 F.R.D. at 208.

The court also finds that the individ­
ual complaints filed by the plaintiffs 
contain specific allegations of discrimi­
nation against the individual complain­
ants and do not make allegations about 
patterns or practices of discrimination 
by the defendant against a class. Plain­
tiffs’ complaints were made and main­
tained as individual actions throughout 
the administrative process. No attempt 
was made to assert class claims until 
the plaintiffs came to this court. There 
is no evidence in the record to suggest 
that the agency’s action in response to 
the individual complaints wouid make 
waiver or estoppel of the administra­
tive exhaustion requirements appropri­
ate here.

Because the court finds that failure 
to exhaust the administrative remedies 
precludes certification of a class, the 
court does not reach the question of 
whether the plaintiffs have satisfied 
the prerequisites to maintaining a class 
action under Rule 23, Fed. R. Civ. P.

Accordingly, the plaintiffs' motion 
for certification of a class action is 
DENIED. Defendant’s motion to dis­
miss the class allegations is GRANT­
ED.

IT IS SO ORDERED.

BOUCHET v. NATIONAL URBAN 
LEAGUE

U.S. District Court.
District of Columbia

BOUCHET v. NATIONAL URBAN 
LEAGUE, INC., et al.. No. 78-2133, Feb­
ruary 18,1981
CIVIL RIGHTS ACT OF 1964 

Amendment of complaint ► 108.7221 
Female former employee may not file 

amended complaint in her Title VII 
action to add claims for defamation and 
“ sexual extortion," where same allega-



34 FEP Cases 911

dants wiU collectively be referred to as 
defendant Army). A bench-heard mass 
certification hearing was held on Octo­
ber 20-21. 1983. The motion was tasen 
under advisement until all parties had 
submitted their briefs and reply memo­
randum.

The plaintiffs are five past ana 
present women civilian employees of 
the United States Army — specifically 
the St. Louis facility of the Automated 
Logistics Management System Activity 
(ALMSA), a division of the Material 
Developmental Readiness Command. 
They seek to represent three sub­
classes of present and former civilian

ie n t who no earlier than Feb- 
~1 1973. have been rejected for 
osition of Philadelphia police 
r because of the background 
i  gallon. .
nification is conditional pend- 
her discovery regarding the na- 
olaintiffs' claims and the com- 

of the class as defined. See. 
Civ. P. 23(c)(1).

U.S. District Court,
:em District of Missouri
OSS et al. v. WE EMBER- 
aL Mo. 82-491C( 5). March..21,

,-lL RIGHTS ACT OF 1964 
ederol employment — Class action 
Exhaustion of remedies ► 108.7o01 
110.2208 ► 110.125 -
Failure of U2S. Army employees, who 
rd only individual administrative 
nplainis, to pursue class complaint 
xedures precludes them from main- 
-•ng '^eir Title VII action as class 
^ a . since they failed to exhaust

Action under Title V il of Civil Righte 
I -  of 1964 by employees against U.S. 
ju— v. wherein employees moved to 
determine maintainability of class ac- 
ncn. Motion denied.

Louis Gilden and Susan Mello, St. 
Louis, M o, for plaintiffs.

Captain John 9. Woodley, Jr., and 
Ma'or Bernard J. McKay, U.S. Depart- 
soeist of the Army, for defendants.

Full Text o f Opinion
LIM3AUGH, District Judge: — This 
alter is before the Court on plain- 
fls motion to determine the main-

umability of their class action under 
Count m  of their Title VII complaint. 
Plaintiffs’ motion is filed pursuant to 
Buie 23(0(1) Federal Rules of Civil 
Procedure. The defendants Caspar We- 
rtberrer (Secretary of Defense), John 
Marsh (Secretary of the Army), and 
Edward Turner (Assistant Civilian Per­
sonnel Officer for Troop Support and 
Aviation Material Readiness Com­
mand) have filed their objections to the 
hats certification (hereinafter defen-



V'tt
i

34 FEP Cases 912 McINTOSH v. WEINBERGER

class administrative remedies; a precon­
dition to filing a Title VII federal em­
ployees class complaint in federal dis­
trict court. .

A jurisdictional prerequisite to main­
taining a Title VII action, whether in 
the private or federal sector, is the 
exhaustion of administrative remedies. 
Brown v. GSA, 425 U.S. 820, 12 PEP 
Cases 1361 (1976).

Section 717(c) of Title VII provides 
the exclusive judicial remedy for feder­
al employees alleging discriminatory 
employment practices. It proscribes 
certain preconditions to filing suit in 
federal court, including initial recourse 
at the agency level for relief. Patton v. 
Brown. 95 P.R.D. 205. 33 FEP Cases 529 
(1982); Johnson v. Bond, 94 P.R.D. 12o, „ 
33 FEP Cases 524 (1982).

In 1977. the Equal Employment Op­
portunity Commission (EEOC) promul­
gated procedures, pursuant to § 717(b) 
of Title VII, for administrative process­
ing of class action complaints. 29 C.F.R.
11613.601-.643. These procedures differ 
greatly from the procedures for admin­
istrative processing of individual com­
plaints 29 CT.R  51613.201 et seq. Basi­
cally, the two types of procedures are 
as follows: ' . . "

In filing a class complaint, the charg­
in'31' party must declare that she pur­
ports to be the representative of a 
specific class and must specify that the 
class meets the requirements of numer- 
osity, typicality and commonality and 
that she is an adequate class represen­
tative. 29 C.F.R §1613.601. The com­
plaint must specify and describe in 
detail the agency personnel policy or 
practice giving rise to the complamt. 29 
C.F.R §1613.604. If the complaint is 
accepted, the agency must notify all 
class members of the existence of the 
complaint, their right to opt out and 
the method of doing so, and must give 
an explanation of the binding nature of 
the final decision or resolution of the 
complaint. § 1613.605. Thereafter, in­
vestigation is undertaken by an ap­
pointed agency representative at. an 
agency level commensurate with, the 
class complaint accepted. §1613.608. 
There are provisions for resolution of 
the comolaint during the investigative 
process with notice to the class. 
§ 1613.609. If not resolved, a hearing is 
held on the complaint and a report of 
findings and recommendation is made 
to the agency which shall issue a deci­
sion. § 1613.610-611. The class receives 
notification of the decision and of the 
required corrective action, if any. The 
affected agency must attempt to elimi­
nate any personnel practice or policy 
found to be discriminatory and provide 
individual corrective action for all af­

fected class members. § 1613.614. Ag­
grieved class members have a right to 
appeal to the Office of Review and 
Appeals § 1613.631.

An agent is authorized to file a class 
action in federal court only within thir­
ty calendar days of receipt of the deci­
sion of the Office of Review and Ap­
peals or after 180 calendar days after 
the appeal is lodged with that review 
body. § 1613.641. Importantly, the regu­
lations specify that the decision of an 
agency shall be final only when the 
agency makes a determination on all of 
the issues in the complaint, including 
whether attorney’s fees and costs are to 
be awarded and* if so, the amount has 
been determined under the regulations. 
§1613.641.

In order to pursue an individual Title 
VII claim prior to filing suit in a federal 
district court, an aggrieved employee 
must seek relief in the agency wThich 
has allegedly discriminated against 
him. He may then seek further admin­
istrative review before the Equal Em­
ployment Opportunity Commission 
(“ EEOC” ). Alternatively, he may file 
suit in the federal district court within 
thirty days of receipt of notice of the 
agency’s final decision without ap­
pealing to the EEOC. If he does appeal 
to the EEOC, he may file suit within 
thirty days of its final decision. In 
either case, the complainant may file a 
civil action, if after 180 days from the 
filling of the charge or appeal, neither 
the agency nor the EEOC lj£s taken 
final action.

Even though not all of the proposed 
class members need to exhaust their 
administrative remedies, Eastland v. 
TV A, 553 F.’2d 264, 15 FEP Cases 1115 
(5th C), cert, denied, 434 U.S. 985, lo 
FEP Cases 146 (1977), at least one 
named plaintiff representative must 
have used the class action administra­
tive process. Patton, supra; Thomas, 
supra. In cases arising after the pro­
mulgation of the EEOC regulations 
pertaining to class action complaints, 
the courts have found the failure to 
exhaust the administrative class com­
plaint remedies to be fatal to certifica­
tion of the class in federal court. Wil­
liams v. U.S.P.S., 33 FEP Cases^ î 
(ND. Ga. 1983); Moore v. Orr. 33 r Mr 
Cases 523 (D.Col. 1982); Patton, supnu 
Johnson, supra; Downes v. Acams, 
FEP Cases 929 (E.D. NY 1982); Thom3S 
v. U.S.P.S., 33 FEP Cases 521 
Calif. 1981). The exhaustion of indivio- - 
ual administrative remedies is not »  
substitute for adhering to the 
regulations pertaining to class “ “ “  
complaints. Williams, supra; Moore. ^  
pra; Patton, supra; Johnson, 
Downes, supra; Thomas, supra.

McINTOSH v.

The plaintif 
present case, 
cases, both o 
guished from 
case. In Fitzwn 
26 FTP Cases 
court held ths 
did not requiri 
§ 1613.601 et s 
dent to filing 3 
In that case, fc 
complaint wit 
agency “ took ; 
and attempted 
of conciliatior 
438. The court 
decision must! 
facts herein.” 
have declined 
decision becai D<) vr«. ar 9: 
oruy two of : 
their complain 
agency; the ot! 
plain ts are stil 
igrr.cy level, 
therefore. the 
opportunity to 
three of the fit 

The other c 
plaintiffs is C  P hi in which 
filed an 13011 
‘-hat lv« * a* am pea
v..—,rw»tr u-i«
, 1. r-rtiUe C .

Qj <

—a.
- t - i  mm

7 imtm+r1
- . S«

-.’4 -.04

f  t .  +  S ~ T

-» Ur*
*t- —t .-■**:.*

4.,: S? :1

M* <5**41



t>° plaintiff representatives in the 
-,«4ent case, rely principally on two 
-ases* both of which can be distin- 

ed from the facts in the present 
In Fitzwater v. V.A.. 90 P.R.D. 435, 

CXP cases 177 (S.D. Ohio 1981), the 
:ozrt held that the EEOC regulations 
.̂dTnot require adherence to 29 C.F.R. 

r, 513 goi et seq. as a condition prece­
de’-” ' to filing a federal class action suit, 
la that case, four plaintiffs each filed a 
complaint with the agency and the 
a-ency “ took note of these complaints 
^ d  attempted, through law, a process 
of conciliation or resolution.” Id. at 
4-33 The court went on to state that its 
decision must be “ strictly limited to the 
'acts herein.” Id. at 438. Other courts 
hare declined to extend the Fitzwater 
“ .vision because of its narrowness. 
Dow—.es, at 930. In the present case, 
only two of the plaintiffs have had 
their complaints processed through the 
agency, the other three individual com­
plaints are still being processed at the 
agency level. (Plaintiff exhibit 25). 
Therefore, the agency has not had the 
opportunity to attempt resolution with 
three of the five plaintiffs.

The other case relied upon by the 
plaintiffs is Chisholm v. U.S.P.S., 665 
F.lid 482, 27 FEP Cases 425 (4th C 
1332), in which ablack postal employee 
filed an individual complaint alleging 
that he was a victim of discriminatory 
promotion practices and alleging dis­
crimination against black postal em­
ployees (as a class) since 1960. The 
administrative remedies as to the indi­
vidual complaint were exhausted but 
Idlespite Chisholm’s efforts, the 
claim of class-wide discrimination was 
never addressed at any administrative 
level.” Id. at 490. The court held that 
federal employees were no different 
than private sector employees and thus 
could maintain a class suit as long as a 
named plaintiff had exhausted his/her 
administrative remedies. Id. at 490. The 
Chisholm court reached its decision by 
relying upon two 5th Circuit cases pre­
dating the promulgation of 29 C.P.R. 
11513.601 et seq:, Eastland v.. TV A. 
-,ra; McLaughlin v. Hoffman. 547 

? , i i  918, 14 FEP Cases 794 (5th C 1977) 
ar.c m apparent total disregard of the 
uuOC regulations, since they are never 
■“•rn mentioned. In  addition, it was 
uleged in the Chisholm administrative 
agency complaint that there was a spe­
cific class-wide discrimination. There is 
no such allegation in any of the admin- 
strative agency complaints in this case. 
Hi us the agency had the opportunity 
"0 address the class-wide allegations 
made in Chisholm but apparently 
chose not to, whereas in this case that

opportunity has never been given the 
agency.

The courts which have denied class 
certification in analogous situations 
reached their decisions because they 
found that the EEOC regulations and 
case law interpreting these regulations 
superceded any contrary position, and 
also because of policy consideration. 
There is a strong prevailing interest in 
encouraging agency resolution of Title 
VII disputes. Patton, at 208. Congress 
intended for agencies to have the first 
opportunity to resolve Title VII dis­
putes and the EEOC responded to this 
directive by specifically providing pro­
cedures designed to achieve informal 
resolutions. Patton, at 208. Compliance 
with these procedures should not be 
ignored or waived unless strong extenu­
ating circumstances can be shown. No 
such circumstances exist here.

Mr. Crouch, EEO Officer at ALMSA. 
testified that the plaintiffs were in­
formed of the EEOC procedures for 
processing a class complaint. The plain­
tiffs had counsel during the adminis­
trative proceedings. More importantly, 
the complaints were filed and specifi­
cally processed as individual com­
plaints. (Plaintiffs’ exhibit 24, 15a-pg. 
3 ,15b-pg. 3). The complaints contain no 
requests for injunctive relief as to the 
promotion system. The investigatory 
reports only address themselves to the 
specific instances in which Ms. McIn­
tosh and Ms. Sorrells allege denial of a 
promotion due to national origin. Not 
one of the plaintiffs filed a class com­
plaint before an administrative body 
and there is nothing in any of the 
administrative agency complaints filed 
here which clearly indicates an allega­
tion of class-wide discrimination.

The majority o f the circuits are prop­
erly requiring compliance with 29 
C.P.R § 1613.601-.643 prior to filing a 
class complaint at the federal district 
court level. This court finds no compel­
ling reason why it should differ with 
the reasoning of the majority trend. 
Plaintiffs’ motion for class certification 
will be denied.
Order

In accordance with the memorandum 
filed herein this date,

IT IS HEREBY  ORDERED that 
plaintiffs’ motion to determine the 
maintainability of their class action 
suit (under Count III of their Title VII 
complaint) be and is DENIED.

10A



a s s ?;.
or. tie s plain- 
burden 

the pa? ; of tie
at 406- 
ts omit-

dardio 
Is went

Courts .. i i ;  | 
hi«cry m

3. middle ; T:Mr* 
the jobs ii recuire- 
paraile-"

Su-reamtent-a
408. 678
ritaiions i& ff ib j

iu“ raSe  
Glassu . .-*-1 v i 

Lai" test ■ ,.V 
discuss-. •- ■*.

■ '  ajj&s-i tot mean. •: -  iv- 
it merebr. - 
etnaL'A.
if it com-. r.PttS&f3 
in in skill.' " «K»§ - ;■ 
otrem se

F2d a t

of Labor -2'
ter under-' 
P.eport at 
arts have 
filiations 
guide the' - 
arris. See

■

' “CSlSl
. v. Demo- rn'irl

Comm is- .... ..tfv.F.fhompson.
A49. More
she ceter— ■ Riw-;-. 1
performed
ioment. or V̂S>iL -
LStanuaily : - =S-eP-u.-
i.one regu-' 
sandal or
degree or -r itv-v—̂
poiisicihty - j-
ce of jobs; ~~ |
r standard
122. Quot- . ir_.
- Robinson-

. - p i  
that differ^* ; - r  73T
ssigned ' " i - MrraAaied as
h the aggre* *•-
iaily m i i v  ’ . . _ i “ 2

i

DOWNES v. ADAMS 33 FEP Cases 929

skills, efforts and responsibilities, the work 
Will be adjudged equal despite minor varia­
tions. , .When there is disparity between salaries 
□aid men and women for similar positions 
bearing different titles ... the Courts have scrutinized the evidence to discern whether 
The salary differential is justified by hetero­geneous duties.... An employer cannot justi­fy a pay differential by mere assumptions on career-orientation, the duration or probable 
length of working time, or a supposed respect 
for male authority and leadership. ...An employer must show a consistent pat- 
tern of performance of additional duties m 
order to demonstrate that added duties are 
genuinely the motivating factor for the sub­stantially higher pay .... The semblance of a 
-slid job classification system may not be allowed to mask the existence of wage dis­
crimination.Often, evidence superficially purporting to 
justify greater pay as compensation for add- d̂ work is found upon close examination to 
have inconsistencies which render its eviden­
tiary value weaker....
L35 U.S. App. D.C. at 342-343, o67 F.2d
at 449-50 (citations omitted).

With the foregoing principles in 
mind, and based on the Court’s review 
and analysis o f the uncontroverted 
facts of this case, the Court finds that 
it can decide as a matter of law that 
plaintiff's claim lacks a sufficient foun­
dation. The Court finds that the two 
positions were not “ substantiauy 
equal" Plaintiff has not satisfied the 
legal standards set out above. As indi­
cated by the Joint Stipulation of Facts, 
Ms. Gerson was hired as Director of 
Special Projects, while Dr. Herrmann 
was hired to replace Dr.. Del Prato as 
Director o f Clinical Practices. See Affi­
davit of Dr. Apple, pp. 5-8.

Plaintiff has neither stated a claim 
nor presented factual evidence which 
establishes that defendants discrimi­
nated against her on the basis of sex. 
More particularly, she has not shown 
or suggested how she was treated dif- 
ferently from males. The affidavits 
submitted by the two AFHA adminis­
trators charged with the responsibility 
of hiring and supervising APHA per­
sonnel, are totally devoid of even a hint 
or scintilla of sexually discriminatory 
intent or practices. LriM-vm . .

The undisputed facts, before the 
Court demonstrate that a sincere effort 
was made to provide Ms. Gerson with 
meaningful employment, absent any 
sexual preferences or prejudices. The 
undisputed facts indicate that Dr. 
Herrmann was actively recruited to fill 
a specific and highly technical existing 
job. whereas a position was created by 
APHA as a policy gesture to give Ms. 
Gerson an opportunity to acquure phar- 
maceuical experience and training on

the job. No specific incidents, allega­
tions or facts have been offered by the 
plaintiff in support of the vague and 
generalized references to sexual dis­
crimination. On the otner hand, deien- 
dant has shown that it made rational, 
reasonable and legally prudent person­
nel decisions involving these two em­
ployees. Defendants are therefore enti­
tled to summary judgment as a matter 
of law.

An appropriate Order has been en­
tered by the Court.

DOWNES v. ADAMS

.7’ U.S. District Court,
' Eastern District of New York

DOWNES v. ADAMS, as Secretary of 
Transportation, Department oi Trans­
portation. No. 31 Civ. ol. May 12, 1982
CIVIL RIGHTS ACT OF 1964 

Federal employment — Class action 
► 110.125 ► 110-2205

Federal Aviation Administration em­
ployee’s filing of indi > .dual administra­
tive complaint instead of class action 
administrative - complaint precludes 
him from maintaining his Title VU 
action as class action, since he tailed to 
exhaust administrative remedies in 
that he did not put agency on notice oi 
pattern and practice ol discrimination.

On motion by empl syee to certify his 
action under Title m l of Civil Rights 
Act of 1964 against Federal Avaticn 
Administration as class action. Motion 
denied.

Hall Clifton & Schwartz (Arthur Z. 
Schwartz, of counsel: Susan M- Jennik, 
on briefs) New York. N.Y., for plaintiff.

Edward R. Korman. U.S. Attorney 
for the Eastern District of New York 
(Charles S. Kleinierg. of counsel), for 
defendant.

Full Text c* Opinion

McLAUGHL>IN,_ ~ 
This is a motion for 
pursuant to Fed. R 
This is a Title VII c;v 
U.S.C. § 2000e, et sec 
edy the allegedly rac 
ry policies and pram: 
Aviation Arimirm . 
the Department 
(“DOT” ), which prm.

: strict Judge: — 
-lass certification 

. Civ. P. 23(c)(1). 
il rights action (42 

brought to rem- 
_aliy discriminato- 
ces of the Federal 
.tion ("FAA") of 
,f Transportation 
ented the promo-



-■f-*f
DOWNES v. ADAMS OMAWALX -. a-3tt

tioas of plaintiff and other members of 
the proposed class.

FACTS
Plaintiff

rnntrofscecialist. Grade U S -iu o  uic 
n o t io n  of Air Traffic Control Specud- 
k f  hnirie GS-14. His promotion was 
contingent upon the \U; CS“ ' S  “ ^ S  n-

plaintiff challenges defendant s poll 
cies and practices relating *5°  P̂ R ?*  tion, testing and administrationof the 
training program. The complaint states 
that^he swkTto certify a class of “ Ml 
Rlack Americans who have worked as 
an Air Traffic Control Specialist (De- 
ve1 a omental) at the Eastern Region o 
the Federal Aviation Administration .n 
TsliD New York (hereinafter known as 
W ) ,  who have failed to sat^factordy.

P ^ I r a ^ d  who have been
etoer^ rm in ated  as employees of the
[FAA1 or transferred to.flight service

^T hT pla in tiff in this case fded m  
individual administrative r W W g a t .. 
but failed to invoke the cl^s_acflon 
administrative procedures that were m

gSfiSS s ^ s s s s ^
SteTh?JSittUhlSvei5S vlduf
ffi?c£gl£ SSemployee* and of the .four _only^one 
involves the FAA 
Islip.J The other 1 
plaints were filed 
failed out of the If 
allegedly because 
nated against on ’

.11! Charles Downes sought pro- 
from the position of Air Traffic 

iist. Grade GS-11 to tne 
Traffic Control Special-

- " t “i was
successful comple-

involvimsector is exhaustion of administrative 
See e g Brown v. General 

S i t e s ' A d o r a t i o n .  425 U S 820 
96 S.Ct. 1961,12  FEP Cases 1361(1976).
Mckart v. United States. 395 UA. wo - j a  
(1969); Swain v. Hoffman. 547 F.2d ,
14 FEP Cases797 (5th Cir. 19 <7). .... J|||;

The issue for this Court is whether^ - *  
ni-iintiff who files a Title vu  ciass 
act on complaint of discrimination 
based1 on r̂ace has exhausted his admin- • . 
istrative remedies by fdingmmdivdu-

where others have filed 
ministrative complaint* oi cuscnmm^ 
tion based on race. - . -.,1? •

Only one case. F i l t e r  v Vetem^ - ^

SSSSiŜ -01 s .-s g fflv  I
t ;

ining program at that Us decision ^ s t ^  ® %q F.R.D. at 
r individual com- ed to the tacts ncicm .

f f l S S w  '  This court d ^ a to extend th e m  

eight complaints first place, tfae P»OTOse of tne exn

r -  ;
gag’ss?&‘a.,3 &ais

m to certify must be informal basis. See, e.g.. . 0= 193.94
t ere Cinl Service Commission United States, • O 11808 (M a r c h  1. 
■imtive procedures for the pro- (1 9 6 9 ) . b e e m s o  - -  s  • , c o v e r y  ta k en

artmenL of Transportation ja d patter , h Americans. Here, OlUy p̂Smilff had not been mscnm- against Black A m erica^  thenoted a disturbing pattern of a- Qne 0ther Black WhO ianeu uu ... *
r ^ S S f f f i d s t S t i v e  -r5 ifendant also ^
sas sustained when the C^part- ^ d a s & e s e d ts to ce r tU y  ( P e d - ^ C i ^ P - ^

100broaiwe-



OMAWALE v. W B Z ______________
iilip training program filed a com- 
n’ aint based on discrimination. The 
other lour administrative complaints 
were brought by whites who faded out 
nf the Islip training program. More­
over? the one Black’s complaint was 
informally resolved.

On these facts, this Court would be 
hard pressed to find that the agencies 
rued here were on notice oi a pattern 
and practice of discrimination. At the 

time to the extent th2Lt the en­
tries involved have uncovered statistics right to jury
rhat are somewhat disturbing, it is written <------
dear to the court that the appropriate opposing parties, 
Dltce for a class claim of discrimination checked box on C. 
m be aired, at least in the first instance, eating 
T at the administrative level, and not in made, where 
^he S S  court. Indeed, litigants 
should not be permitted to flout an 
agency’s procedures. T oucheR oss 
Co. v. Securities and Esm-ange 
Comm’n,509 P.2d 570 (2d Cir. 19<8).

Finally, plaintiff has cited no case 
other than Fitzwater in which a court 
permitted a plaintiff to bring a federal 
class action where no previous adminis- 
rrative'Class action had been filed. In­
deed, the few cases on this issue unani­
mously, require that the class action 
administrative procedures be exhaust­
ed as a condition to the certification of 
a federal class action. See Thomas v.
United States Postal Service, 27 E.P.D. 
c 32.273 33 FEP Cases o21 (N.D. Cal.
1981)r: Eastland v 'Tenne^ee Valley 
Authority, 23 EfPJD. ,31.15i, 30 FEP 
CasK 495 (N.D. Ala. 1980). See also 
James v. Rumsfield, 580 F.2d 224. 22B,
17 FEP Cases 1398 (oth Cir. 1573),
LMA.G.E. y. EEOC. 469 RSUPP- gS *.
1037 n.1, 22 FEP Cases 6*3 (D., uoio.
1 9 7 9 ) 1 " 1  ?r-c .tV. ;

For all these reasons, the plaintiffs 
motion for class certification is denied 
and the class action elements ox the 
complaint are dismissed. ... .

SO ORDERED. ;  . ...7, ' " • •

television stations, where he failed to 
demonstrate his qualification for posi­
tions he sought, he failed to estaoUsh 
that he even had applied to several of 
the stations, and he failed to show that 
employers from whom he actually re­
quested employment had any suitable 
positions available.
CIVIL RIGHTS ACT OF 1866 

2. Jury trial ► 108.831 
Unsuccessful job applicant waived 

jury trial by failing to serve 
demand for trial by jury on 

Tj, even though he 
Civil Cover Sheet indi- 

that jury demand had been 
c wl«i-3 notation on Cover Sheet is 

n o t substitute for sendee of requisite 
written notice on opposing parties.

PER CURIAM: — On July 13. 19 ib 
Duke Omawaie filed a complaint w ith 
the United States District Court for 
the District of Massachusetts naming 
as defendants seven operators of vari­
ous radio and television stations in the 
metropolitan Boston area.- Mr. Oma­
waie alleged that these defendants vio-

• Of the Southern District of New Tori, sitting by
d^ e  MtSil names of the corporate defendants are 
as follows: WBZ Radio & TY4

Inc *WLYN is Puritan Broadcast ^rvice^ .nc.. 
WHDH is WHDH Corporation, and WRYT

Omawaie initially brought
action. Noting that he had P 23 > h »nf the class pursuant to Fed. K. Civ ■ r. l i .  cuat

U.s. Court of Appeals.
.First Circuit.(Boston)

O MAW ALE v. WBZ, et aL, No. 79- 
1266, November 29,1979 
CIVIL RIGHTS ACT OF 1964 

L Racial discrimination — Hiring — 
Prima facie case ► 10»-30«3 
► 108.73341 t.V-A

Black individual has failed, to estab­
lish prima facie case of racial discrimi­
nation by seven operators oi radio and