When a federal employee initiates the EEO process through the internal counseling, the agency sometimes claims that the employee failed to provide sufficient information about the alleged discrimination/retaliation at the outset, so that the employee did not adequately exhaust her administrative remedies at the outset. In Artis, et al. v. Bernanke, a group of secretaries at the Federal Reserve attempted to bring a class action based on race discrimination, alleging denials of promotion, lower salaries, less favorable work assignments, and other adverse employment actions. The Federal Reserve argued to the district court (J. Sullivan), that the plaintiffs failed to provide sufficient information in support of their class allegations during the counseling and other internal processes.
On appeal, the D.C. Circuit reversed, finding that at least some of the plaintiffs provided sufficient information about their own individual circumstances. Critically, the court held that it would be improper to require the plaintiffs to provide information about their class allegations at the outset, since that information requires a formal statistical analysis of employment data – information that is solely in the hands of the employer and can usually only be obtained through discovery after the initiation of formal legal process.
Some excerpts follow:
http://pacer.cadc.uscourts.gov/common/opinions/201101/09-5121-1287236.pdf
Artis v. Bernanke, No. 09-5121 (D.C. Cir. Jan. 11, 2011)
Appeal from the United States District Court for the District of Columbia
(No. 1:01-cv-00400)
Walter T. Charlton argued the cause and filed the briefs for appellants.
Kenneth M. Willner argued the cause for appellee. With him on the brief were Richard M. Ashton and Katherine H. Wheatley, Associate General Counsel, Board of Governors of the Federal Reserve System, and John L. Kuray, Senior Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Before: BROWN, GRIFFITH and KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge:
Appellants are members of a putative class of secretaries employed currently and formerly by the Federal Reserve Board. They claim 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. The district court dismissed the complaint for failure to exhaust administrative remedies. Because we conclude the secretaries completed informal counseling in a manner sufficient to give the Board an opportunity to investigate their claims, we vacate the district court’s dismissal of their complaint. . . .
. . . . The district court concluded the secretaries failed to satisfy this counseling requirement because they “declined to cooperate with the Board by failing to provide any meaningful information about specific instances of discrimination.” Artis, 474 F. Supp. 2d at 19. We disagree.
The purpose of EEO counseling is clear from the text of the regulation: Counseling is designed to enable the agency and its employee “to try to informally resolve the matter” before an administrative charge is filed. 12 C.F.R. § 268.104(a), quoted in Artis I, 158 F.3d at 1306; see Wilson, 79 F.3d at 165 (“The purpose of the [administrative exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.”); see also Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 711–12 (D.C. Cir. 2009) (“[U]nlike agency exhaustion in other contexts, the purposes of counseling and mediation are not to compile a record for judicial review but instead simply to afford the employee and the employing office an opportunity to explore and possibly resolve the employee’s claims informally.” (describing a similar counseling requirement in the Congressional Accountability Act)).
Where counseling produces “sufficient information to enable the agency to investigate the claim,” that purpose has been served. Artis I, 158 F.3d at 1306 (quoting Wilson, 79 F.3d at 164). Thus, we recognized that “where a complainant has pleaded a nonpromotion claim to the agency, it is not her responsibility to identify the positions for which she applied.” Id. at 1308 (citing Mangiapane v. Adams, 661 F.2d 1388 (D.C. Cir. 1981) (per curiam)). To hold otherwise would turn the informal counseling requirement into a trap for unwary counselees rather than a step toward remediation, and it would violate the principle that “Title VII’s exhaustion requirement should not be read to create useless procedural technicalities.” President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980).
An agency risks misusing the counseling requirement when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination. Unlike an allegation of overt harassment or a specific instance of retaliation against an individual employee, class-wide claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by a statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees. See generally Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984) (“A plaintiff class seeking to show a pattern or practice of disparate treatment must carry the initial burden of offering evidence adequate to create an inference that employment decisions were based on a discriminatory criterion illegal under [Title VII]. This usually means providing evidence—often in statistical form—of a disparity in the position of members of the plaintiff class and comparably qualified whites.” (citation, quotation marks, and emphasis omitted)). Usually, such an analysis will be possible only after the employees obtain data from their employer, whether informally or through discovery. 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.
Alan R. Kabat
Bernabei & Wachtel, PLLC
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