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March 19, 1987

Willie N. Mayfield, et al., Plaintiffs,
Edwin Meese, United States Attorney General, Defendants

The opinion of the court was delivered by: PRATT

 The court has before it, inter alia, defendant's motion to dismiss, or in the alternative to strike the class allegations. Because the questions raised by the motion to dismiss are logically addressed prior to a determination of the class issues, we address only those parts of defendant's motion attacking the claims of the named plaintiffs. Defendant's alternative motion to strike the class allegations will be addressed at a later date in conjunction with plaintiffs' motion for class certification. Because we conclude, for the reasons set forth below, that plaintiff William Mayfield has exhausted his administrative remedies and stated a proper claim under Title VII, we deny defendant's motion as to Mayfield. The defendant's motion to dismiss the complaint as to plaintiffs Thelma Moore and Ethel Sykes will, however, be granted because these plaintiffs have not exhausted their administrative remedies.


 According to the report of Timothy Falls, (EEO counselor, Ex. B to McBurrows Declaration), plaintiff Mayfield contacted Falls on or about September 3, 1984. An initial interview was held on September 10, 1984, with a final interview on October 11, 1984. In his interviews, Mayfield complained of race discrimination stemming from a lack of promotions, lack of training, and lack of upward mobility programs for blacks in the Tax Division. McBurrows Ex. B at "Part B". Falls wrote that Mayfield made it clear that Mayfield sought to be a class agent, sought only to exhaust legal remedies as directed by counsel, and did not seek informal resolution. McBurrows Ex. B at "Part D".

 Mayfield filed a timely administrative class complaint on October 23, 1984. He alleged that black employees in the Tax Division were subject to an ongoing pattern of race discrimination, including initial assignment to lower level jobs than comparably situated whites and assignment to a disproportionate number of jobs with little or no promotion potential. He further alleged that discrimination had been "carried out through subjective evaluations by white supervisors, false accusations regarding job performance, little or no training or upward mobility programs for lower-grade employees, harassment, failure to adequately post [sic] job vacancies and discriminatory promotion decisions." McBurrows Ex. C. Mayfield alleged that the discrimination was continuing to date.

 In December 1984, Falls (EEO counselor) contacted Mayfield by memo to request the specific facts of the case. After an exchange of several telephone calls, Kerry Scanlon, counsel for Mayfield, wrote to Violet Cromartie at the Department of Justice on February 11, 1985. Scanlon stated that the specific allegations were stated in the complaint, that Mayfield was not reluctant to proceed expeditiously with informal adjudication, and that Mayfield had not been advised by counsel to bypass informal adjudication. McBurrows Ex. F. Scanlon also transmitted to the Department a set of proposed discovery questions. Id.

 On May 13, 1985, the Attorney Examiner Elsa Dik Glass sent a set of preliminary rulings and interrogatories to Mayfield. McBurrows Ex. G. On May 30, 1985, Ms. Glass sent a copy of the preliminary rulings and interrogatories to Scanlon. Glass raised questions about whether Mayfield had properly brought his grievance to the attention of the EEO counselor within the charge filing period and questioned the class allegations. Scanlon submitted a lengthy response on June 21, 1985. Ex. A to Plaintiff's Opp. to Mot. to Dismiss. Attached to this response were six supporting affidavits. Apparently the Justice Department submitted responses also, to which Scanlon submitted a reply filing. Id.

 On January 2, 1986, Glass issued a Recommended Decision urging rejection of the class complaint on several grounds. McBurrows Ex. O. First, she argued that plaintiff had not consulted the EEO Counselor in a timely manner, i.e., within 90 days of an allegedly discriminatory personnel action. Id. at 4. She also stated that because, in her view, Mayfield had not stated a timely claim, he would not adequately represent the parties. Id. at 5-6. She further stated that comment on commonality and typicality was unnecessary in light of the failure to plead a timely, specific individual injury. Id. at 6. Finally she wrote that plaintiff had not shown numerosity of potential claimants. Id.

 On January 16, 1986, the Department of Justice issued its final decision on the class complaint. McBurrows Ex. P. Justice rejected Mayfield's class complaint, but on different grounds than were relied on by Glass in her recommended decision. Id. at 1. The Justice Department rejected the class complaint solely on grounds of commonality and numerosity. Id. at 2-3.

 Thereafter the class action complaint in this court was filed on February 18, 1986. In addition to Mayfield, Thelma Moore and Ethel Sykes were also named plaintiffs. Neither Moore nor Sykes has initiated related administrative proceedings.


 Defendant's motion to dismiss, as distinguished from its motion in the alternative to strike the class allegations, raises four issues: (1) did Mayfield properly exhaust his administrative remedies; (2) did Mayfield bring a timely action; (3) has Mayfield pleaded a claim cognizable under Title VII; and (4) can Moore and Sykes be considered to have exhausted their administrative remedies through operation of the doctrine of "vicarious exhaustion". We address these issues seriatim.

 I. Mayfield's Exhaustion of his Administrative Remedies

 It is clear that in order to bring a civil suit against the federal government for violation of Title VII, plaintiff must first exhaust his administrative remedies. Defendant does not allege that Mayfield did not follow through on the appropriate administrative steps outlined at 29 C.F.R. ยง 1613.601, et seq., or that Mayfield missed any of the relevant administrative time deadlines. Instead, citing Woodard v. Lehman, 717 F.2d 909 (4th Cir. 1983) and Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980), the government argues that because Mayfield allegedly failed to make more specific his complaint at the administrative level and because he allegedly lacked interest in informal resolution of his claims, Mayfield should be deemed not to have exhausted his administrative remedies.

 Defendant argues that Woodard is so factually close to this case that we should follow Woodard. In Woodard, the plaintiffs had brought individual claims for disparate treatment based on an alleged use of "subjective criteria" and on an alleged "denial of opportunities for training and doing certain types of work which are said to be prerequisites for advancement." Id. at 912. The EEO Counselor in Woodard requested that the plaintiffs provide written statements with specific illustrations of the alleged discrimination and specific statements of the corrective action required. Id. The plaintiffs filed statements saying that the initial complaints were sufficient and that the charge was one of systemic and continuous discrimination. Id. The Commanding Officer then cancelled the administrative complaint. Id. On review of the district court's judgment for defendants after a bench trial, the Fourth Circuit held that where the administrative complaint had been cancelled because of plaintiffs' failure to provide specific details, plaintiffs failed to exhaust administrative remedies. Similarly, in Johnson v. Bergland, 614 F.2d at 415, the administrative complaints had also been cancelled for lack of prosecution.

 This case is not on the same procedural footing as either Woodard or Johnson. Neither the complaints adjudication officer who issued the final decision on Mayfield's class complaint, nor the attorney examiner who made a recommended decision, issued findings that Mayfield had not complied adequately with the administrative process. Instead, both these people adjudicated Mayfield's class complaint on the merits of the class allegations. This is clear from the text of the decisions, as well as from the terms used to describe the agency's disposition of the complaint. In this case, the complaint was "rejected," a term of art which under the class action regulations is used to refer only to substantive decisions. By contrast, a complaint that is dismissed for want of prosecution, such as occurred in Woodard and Johnson, is "cancelled."

 We believe that this distinction between a "rejected" complaint and a "cancelled" complaint limits the reach of Woodard and Johnson. Where the agency decides during the processing of the complaint that it has sufficient information to proceed with the adjudication of the complaint, the agency should be bound by that decision. The fact that the agency proceeded to a decision on the merits is a much more reliable indicator that a plaintiff's cooperation was adequate than the government's assertions during subsequent litigation. In the situation where the agency has taken the step of deciding the merits of a claim, ...

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