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. § 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, the agency's decision is subject to the normal statutory de novo review in federal court.
The government raises one other exhaustion argument. It argues that because the agency has only adjudicated the class issues, the plaintiffs' class suit here should be limited to a challenge of the agency determination of the class issues. Memo. of P & A's at 24-25; Hogan v. Orr, 672 F. Supp. 1388, slip op. at 2 (W.D.Okla. 1986); Harrison v. Orr, 672 F. Supp. 1387, slip op. at 2 (W.D.Okla. 1986); Abdul-Raheem v. Orr, 672 F. Supp. 1389, slip op. at 2 (W.D.Okla. 1986); Wade v. Secretary of Navy, Civ. No. CV 85-028 (S.D.Ga. Aug. 2, 1985). Whatever the correctness of the decisions in these cases, they should not apply here. In this case, the final decision on Mayfield's complaint rejected the entire complaint. Although the government had the option of rejecting only a portion of the complaint, it did not do so. The government did not indicate that it had accepted any part of Mayfield's complaint. As the covering letter transmitting the decision to Mayfield stated, the decision was a final adjudication of Mayfield's complaint, which of necessity included its merits. Thus, Mayfield was entitled, under 29 C.F.R. § 1613.641, to bring civil suit on the entire complaint within thirty days of his receipt of the agency decision.
In its rush to attempt to get this court to expand the scope of Woodard v. Lehman, the Justice Department has failed to raise one important exhaustion issue. The civil complaint alleges one discriminatory practice that does not appear in the administrative complaint:
defendants have failed to determine, in accordance with professional standards, the knowledge, skills and abilities that are critical to the successful performance of job to which class members could have been promoted. As a result, blacks have been denied or were unable to compete for positions for which they were qualified in fact.