The opinion of the court was delivered by: Sullivan, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs have filed a class action complaint for racial
discrimination in employment against Alan Greenspan in his
official capacity as the Chairman of the Board of Governors of
the Federal Reserve System ("Board").
Defendant moves pursuant to Fed.R.Civ.P. 12(b)(1) and (6) to
dismiss plaintiffs' five-count complaint. Defendant argues that
all of the counts in plaintiffs' second amended complaint are
subject to dismissal because plaintiffs have failed to exhaust
their administrative remedies and, therefore, this Court is
without jurisdiction over plaintiffs' claims. Specifically,
defendant contends that plaintiffs failed to provide Board Equal
Employment Opportunity ("EEO") counselors with specific and
detailed information regarding the claims of racial
For the following reasons, the Court denies defendant's motion
to dismiss without prejudice and orders the parties to submit a
discovery plan that would permit the parties to conduct limited
jurisdictional discovery on the issue of plaintiffs' exhaustion
of administrative remedies.
Plaintiffs are sixteen secretaries employed or formerly
employed by defendant Board. Pending before the Court is
defendant's second amended complaint. Four of the plaintiffs
were plaintiffs in a previously filed lawsuit, Artis v.
Greenspan, Civ. Action No. 96-2105 ("Artis I".)
An administrative complaint in Artis I was filed March 1995
as a putative class action. See Artis v. Greenspan,
158 F.3d 1301, 1303 (D.C. Cir. 1998). The complaint was amended to assert
claims on behalf of "all African-American secretaries at the
Board," and not just those within the Legal Division. The Board
found that the amended complaint impermissibly expanded the
class to include members whose claims had not been discussed at
the counseling stage. The EEOC administrative judge assigned to
decide whether the case should proceed as a class action
remanded the case to the Board for further EEO counseling. The
plaintiffs, however, did not cooperate with EEO counselors. The
Board then dismissed Artis I plaintiffs' administrative
complaint in June 1996, in part because the events at issue had
"not been the subject of counseling as required under the EEO
rules." 158 F.3d at 1307 (quoting Board's final agency action).
Following the dismissal of their complaint at the
administrative stage, Artis I plaintiffs filed a complaint in
this Court. See Artis, Civ. Action 96-2105. The Board moved to
dismiss the complaint for failure to exhaust administrative
remedies. This Court held that the plaintiffs had not exhausted
their administrative remedies, finding that the plaintiffs had
"declined to cooperate with the Board." 158 F.3d at 1307. The
D.C. Circuit upheld the dismissal of the case. See Artis I,
158 F.3d 1301.
The nineteen plaintiffs who are parties to this lawsuit filed
an agency-wide class-action discrimination complaint with the
Board on March 3, 1997. See Opp'n, Ex. B34. Plaintiffs' Second
Amended Complaint alleges that plaintiffs filed a formal
complaint with the EEOC on April 4, 1997. Sec. Am. Compl. ¶ 49.
Indeed, a copy of an August 10, 2000 decision by the EEOC
attached to plaintiffs' opposition memorandum suggests that the
administrative class-action complaint was the subject of an EEOC
hearing request. See Opp'n, Ex. Cl. The August 10, 2000
decision recounts that, on June 11, 1997, the Acting Director of
the Washington field office dismissed the complaint because of
the pendency of Artis I, and remanded the file to the agency
for proper disposition. Id. The August 10, 2000 decision
reinstated the administrative proceedings, noting that Artis I
had been resolved. Id.
However, on December 18, 2000, Administrative Law Judge
Kathryn Brown dismissed the administrative proceedings because
of the pendency of the instant lawsuit. See Opp'n Ex. C2.
Judge Brown's order stated that the complainants could not
directly appeal to the Commission from her decision. Rather, in
accordance with EEOC regulations, the agency was required to
take final agency action within forty days of receipt of her
order of dismissal. Upon final agency action, the complainants
would have thirty days to appeal to the EEOC.
The Board issued a notice of final agency action on January
30, 2001. The Board's decision found that only class-wide claims
had been raised. The decision informed plaintiffs that a class
agent could appeal to a District Court: (1) within 90 days if
the agent did not seek an appeal to the EEOC; (2) 90 days after
receipt of a decision on an appeal to the EEOC; or (3) 180 days
after filing of an appeal if the EEOC failed to issue a
decision. The plaintiffs apparently did not file an appeal to
the EEOC. Accordingly, the class agents had 90 days from January
30, 2001 to file a law suit in District Court.
The first complaint in this case was filed on August 3, 1999.
An amended complaint was filed on August 7, 2000, three days
before the administrative proceedings were reinstated. On
February 22, 2001, plaintiffs filed a new civil action, Civil
Action No. 01-400. The Court subsequently consolidated Civil
Action No. 01-400 with the instant law suit, and ordered
plaintiffs to file the complaint from Civil Action 01400 as the
second amended complaint in this case. The second amended
complaint was filed on August 21, 2002.
Plaintiffs' amended complaint asserts five counts. Count I
alleges that defendant maintains a discriminatory system of
promotions, advancements, salary increases and a racially
segregated management structure in violation of Title VII of the
Civil Rights Act of 1969 ("Title VII"), 42 U.S.C. § 2000e et
seq. Sec. Am. Compl. ¶¶ 62-64. Count II alleges intentional
obstruction of complainants' access to a fair and effective
means of asserting EEO complaints in violation of Title VII, as
well as the Board's own regulations. Id. ¶¶ 65-72. Count III
avers that defendant retaliated against plaintiffs by failing to
process their EEO complaints, in violation of Title VII. Id. ¶
73. Counts IV and V assert claims of obstruction of justice by
the defendant's alleged material misrepresentations in court
proceedings, intimidation of plaintiffs and ...