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September 25, 2002


The opinion of the court was delivered by: Sullivan, District Judge.


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 discrimination.

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.

I. Procedural History

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.

After the Board filed its motion to dismiss in the Artis I district court proceedings, plaintiffs requested to meet with a Board EEO counselor. Plaintiffs met with Board counselors twice, once on January 15, 1997, and again on February 13, 1997. When plaintiffs attempted to cite their 1997 counseling in opposition to the motion to dismiss in Artis I, this Court held that any counseling efforts that occurred after the Board's dismissal of the Artis I administrative case were irrelevant to the question of the Court's jurisdiction.

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 ...

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