Académique Documents
Professionnel Documents
Culture Documents
No. 09-5121
v.
1
For example, Barbara Carter was employed in the Bank Operations
Division, Donna Dorey by the Research and Statistics Division, and
Donna Love-Blackwell by the Banking Supervision and Regulation
Division.
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2
The Board dismissed the secretaries’ administrative complaint on
July 23, 1997. The EEOC affirmed the Board’s decision on
November 18, 1998. Although we had filed our decision in Artis I
almost a month earlier, the EEOC found “no indication in the record
that the United States Court of Appeals for the District of Columbia
Circuit has issued a decision on the matter,” and concluded that
dismissal was appropriate to avoid the risk of “inconsistent rulings
by the United States Court of Appeals and the Commission.” See 29
C.F.R. § 1614.107(a)(1), (3) (“[T]he agency shall dismiss an entire
complaint . . . [t]hat . . . states the same claim that is pending before
or has been decided by the agency . . . or that was the basis of a civil
action decided by a United States District Court in which the
complainant was a party . . . .”). For reasons that are not clear on the
record before us, an EEOC Administrative Law Judge dismissed the
administrative class complaint again on December 18, 2000—again
on the ground that it was the subject of the present civil action, then
pending in the district court. The Board “fully implement[ed]” that
decision on January 30, 2001.
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3
The operative complaint in this case was filed on February 22,
2001, after the Board’s “final action” on the administrative
complaint. See Dist. Ct. Docket No. 1. It was consolidated with a
virtually identical complaint filed on August 3, 1999. See Dist. Ct.
Docket No. 6.
4
We pause to note that failure to exhaust administrative remedies is
not jurisdictional under current precedents. The Supreme Court
recently clarified that “a threshold limitation on a statute’s scope
shall count as jurisdictional” only “[i]f the Legislature clearly states”
as much; otherwise “courts should treat the restriction as
nonjurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16
(2006). Because Title VII includes no such clear statement, we have
recently said Title VII’s exhaustion requirements are not
jurisdictional. See Menominee Indian Tribe of Wis. v. United States,
614 F.3d 519, 527 (D.C. Cir. 2010); see also Colbert v. Potter, 471
F.3d 158, 167 (D.C. Cir. 2006) (“The filing time limit imposed by
Title VII, 42 U.S.C. § 2000e-16(c), is not a jurisdictional
requirement but rather is similar to a statute of limitations.”
(quotation marks omitted)).
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II
suit.” Wilson v. Peña, 79 F.3d 154, 164 (D.C. Cir. 1996). 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.
5
The only general allegations that were not directly corroborated by
the specific allegations of class agents in counseling were (b), (f),
(g), and (j), relating to the amount of money awarded in bonuses to
class members, segregated facilities, discriminatory telephone usage
policies, and unfair distribution of work. This appeal does not
require us to decide whether these four claims are sufficiently related
to others for which the secretaries exhausted administrative remedies
such that they are proper subjects of the civil action. See Payne v.
Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010).
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6
The secretaries also argue statements secretary Kim Hardy
allegedly made at the January 15, 1997 group counseling session
should have been included in a counseling report and would confirm
that she satisfied the counseling requirement. The district court did
not abuse its discretion in refusing to consider Hardy’s 2007
declaration. Her recollection was previously available to the
secretaries, so her declaration was not an appropriate basis for a
motion to alter or amend the judgment. See Messina v. Krakower,
439 F.3d 755, 758 (D.C. Cir. 2006).
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III
So ordered.