Barnes v. Levitt , 118 F.3d 404 ( 1997 )

United States Court of Appeals,
Fifth Circuit.
No. 96-20597.
Wanderlon Ann BARNES, Plaintiff-Appellee,
v.
Arthur J. LEVITT, Jr., in his official capacity as Chairman of
the United States Securities & Exchange Commission, et al.,
Defendants,
Arthur J. Levitt, Jr., in his official capacity as Chairman of
the United States Securities & Exchange Commission, Defendant-
Appellant.
July 31, 1997.
Appeals from the United States District Court for the Southern
District of Texas.
Before DAVIS, STEWART and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Appellant, Arthur J. Levitt, Jr., in his official capacity as
Chairman of the United States Securities and Exchange Commission
("the Chairman") appeals the judgment for Appellee Wanderlon Ann
Barnes ("Barnes") on her employment discrimination claims. Finding
that the district court lacked jurisdiction over her claims, we
reverse.
FACTS AND PROCEEDINGS BELOW
Barnes is an African-American female who was employed as a
staff attorney in the Houston Branch Office of the Securities and
Exchange Commission ("SEC") from August 28, 1988 until September 6,
1991. Joseph C. Matta, an Hispanic male, served as the Branch
Chief of the Houston Branch Office from April 1986, until October
1987, when he was promoted to Assistant Regional Administrator in
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the same office. When he became Assistant Regional Administrator,
Joy Boddie, an African-American female, replaced him as Branch
Chief until she was transferred to the Chicago office. Nancy
McGinley, a Caucasian female, succeeded Boddie as Branch Chief and
remained in that position throughout the remainder of Barnes's
employment. Boddie, and later McGinley, served as Barnes's
immediate supervisors and their immediate supervisor was Matta.
During her first year, Barnes had a good relationship with
both Boddie and Matta and received "outstanding," the highest
possible rating on her annual performance evaluation. In September
1989, Barnes's supervisors strongly urged her to attend a training
conference in Austin, Texas along with the other attorneys in the
Houston Branch office. She refused, telling her supervisors that
she would not be going for personal reasons. In court she
testified that the real reason she refused to attend was that she
did not like to fly and that she thought that she would have to
ride to the conference with Matta. She did not want to ride with
Matta because she had heard rumors that he had sexually harassed
someone in the past and she did not like his tendency to "talk on
and on and on and on and repeat himself over and over again."
Matta never asked Barnes to travel to the conference with him nor
did he know the reason for her refusal. Barnes testified that
after the conference her relationship with Boddie and Matta soured
and they began to criticize her work in ways that she thought were
unfair.
In late 1989, about the same time Barnes begin to have trouble
2
with her supervisors, Adrian Martinez was hired as a staff attorney
in the Houston Branch Office. Martinez, like Matta, was an
Hispanic male. His starting salary was higher than Barnes's
starting salary, but the same as her current pay rate. In February
of 1991, Martinez received a pay raise and was then making more
money than Barnes. When Barnes learned about Martinez's pay raise,
she sought counseling with the SEC's Office of Equal Opportunity
("EEO") complaining of disparate treatment by Matta on the basis of
race with respect to work assignments, promotions, time and
attendance, working conditions, and support staff assistance.
Susann Reilly, the EEO counselor who was assigned to handle the
informal complaint, interviewed Barnes on numerous occasions,
interviewed twenty individuals identified as witnesses to the
events forming the basis of the claims and prepared a Counseling
Report. After approximately four months of investigation, Reilly
contacted Matta's supervisor to explore settlement options.
However, because Barnes's demands could not be acted upon within
the one-week time frame Barnes stipulated, Reilly finalized the EEO
counseling report and sent Barnes a notification of her right to
file a formal administrative EEO complaint.
On August 23, 1991, Barnes's attorney, Beville May ("May"),
sent the SEC a formal EEO complaint and on September 3, 1991
submitted an amended formal EEO complaint. Barnes did not sign
either complaint as required by the EEOC regulations then in
effect. See 29 C.F.R. 1613.214(a)(1). The amended EEO complaint
alleged, inter alia, that from autumn of 1989 until September
3
1991(1) Matta subjected Barnes to a campaign of racially and
sexually motivated harassment; (2) Matta subjected Barnes to
disparate treatment and work sabotage; (3) Matta retaliated
against Barnes after she filed her informal EEO complaint; (4)
Matta sexually propositioned Barnes and others at the Houston
office; (5) "other senior officials," including former regional
administrator Edwin Tomko, created a hostile and offensive
environment, and that their conduct included rape, sexual assault,
sexually suggestive mannerisms, leering, dirty and racist jokes;
and (6) Barnes's mail was tampered with, her telephone calls
monitored, and her life threatened after filing her EEO complaint.
In response to the complaints, the SEC began an investigation
(eventually interviewing approximately thirty people) and
immediately placed Matta on indefinite leave status.
On Monday, September 9, 1991 Barnes started a job as an
attorney at the Resolution Trust Corporation ("RTC") earning the
same salary she was then making at the SEC. On that date, she told
the SEC that it should consider her constructively discharged as of
September 6, 1991.
The SEC requested that Barnes provide information, such as the
names of the SEC officials who had allegedly engaged in the
misconduct, the specific conduct engaged in, the identities of the
alleged victims and when the alleged conduct occurred. On
September 10, 1991, Barnes's attorney, Beville May responded to the
requests in writing, stating:
It is correct that I have declined to provide detailed
information supporting the allegations in Ms. Barnes' Formal
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Complaint of Discrimination to the Commission. The reason for
this refusal, however, was because the SEC has had the
information for years and refused to conduct a meaningful
investigation and/or do anything to stop it.
May repeatedly declined to cooperate with the SEC
investigation, remarking that "you will get it in discovery" and
rather than "provide any specifics" she "intended to file a
complaint in court."1 While declining to discuss the complaint
with the SEC, May granted an interview to a newspaper reporter with
the Houston Chronicle. A front page article quoted May as stating
that an EEOC "complaint filed August 27 claims Matta sexually
assaulted a female employee" and "that Matta overlooked rapes by
other men in the six-person office," when, in fact, the complaint
did not make those allegations against Matta. See Matta v. May,
No. 96-20418, --- F.3d ---- (5th Cir.1997)(discussing the
defamation claim against May arising out of the newspaper article).
Despite the lack of cooperation from Barnes, the SEC appointed
special EEO investigators who interviewed approximately thirty past
and present SEC employees. Several additional former employees
declined to be interviewed.
By letter to attorney May, the SEC informed Barnes that she
had an obligation under the applicable regulations (29 C.F.R.
1
During the administrative complaint stage, attorney May made
repeated references to Broderick v. Ruder, 685 F.Supp. 1269(D.D.C.1988), where May had successfully represented a plaintiff
who brought sexual harassment claims against the SEC. One of May's
letters to the EEOC investigator took issue with a letter sent to
Barnes and advised the investigator, "You might just find yourself
Absent Without Job. Your predecessor is named in the Broderick
decision as a result of tangling with me. I wouldn't seek out that
kind of notoriety if I were you."
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1613.216(b)(2)) to cooperate with the investigation, by providing
sworn testimony and documentation concerning her complaint and that
the failure to do so could cause cancellation of her complaint.
May responded that Barnes would give a deposition only if the SEC
provided her a copy of Reilly's EEO report. The agency agreed to
release the report, but needed May to sign a routine
confidentiality agreement, agreeing not to disclose any nonpublic
information about ongoing SEC securities fraud cases. May never
executed the agreement or attempted to amend the agreement, despite
repeated efforts by the SEC to accommodate any concern she might
have.
On January 29, 1992, the SEC sent Barnes a letter stating that
if she maintained her lack of cooperation, the agency would cancel
her complaint. Barnes then agreed to provide a deposition, which
was scheduled for February 5, 1992. On February 4, May informed
the SEC that Barnes would not attend the deposition because she had
surgery scheduled for the next week, but made no attempt to
reschedule the deposition or to claim that Barnes's health
prevented her participation in the scheduled deposition. The SEC
asked May to agree to extend the 180-day period for filing suit,
which would have expired on February 23, 1992, but she refused.
On February 20, 1992, the SEC sent Barnes a letter canceling
her complaint for her failure to cooperate. The letter detailed
Barnes's allegations, the agency's investigation, and the need for
more information from Barnes. On March 23, 1992, Barnes filed this
civil action under Title VII, 42 U.S.C. § 2000e and the Equal Pay
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Act, 29 U.S.C. § 203. After bench trial, the district court found
that the SEC had essentially completed its investigation, except
that it wanted Barnes's deposition, holding that the "fact that the
SEC wanted to close its investigation with Barnes's deposition and
was unable to get the deposition within the SEC's time frame is no
reflection on Barnes's cooperation." The district court held that
Barnes acted in good faith and made reasonable efforts to provide
the necessary information to the SEC. On the merits, the district
court concluded that Matta's conduct "represented a pattern and
practice of discrimination against plaintiff based on both her
gender and race." The district court awarded Barnes $275,426 in
back pay under Title VII, $53,983.50 for "lost fringe benefits"
under Title VII, $210,468 as liquidated damages under the Equal Pay
Act, $283,856 in attorneys' fees and adopted the injunction order
entered in Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C.1988).2
JURISDICTIONAL PREREQUISITES FOR TITLE VII ACTION
The filing of an administrative complaint is a jurisdictional
prerequisite to a Title VII action. Dollis v. Rubin, 77 F.3d 777,
781 (5th Cir.1995). Further, a complainant must pursue and exhaust
his administrative remedies prior to filing a judicial complaint.
Johnson v. Bergland, 614 F.2d 415, 417 (5th Cir.1980). If the
agency does not reach the merits of the complaint because the
complainant fails to comply with the administrative procedures the
2
In Broderick, the district court for the District of Columbia
entered a consent order in a sexual harassment case arising out of
a SEC field office in Virginia. The order included an injunction
against sexual harassment of SEC employees.
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Court should not reach the merits either. Id. at 418.
As a threshold matter in the trial court, the Secretary
contended that the court lacked jurisdiction over Barnes's claims.
The district court held that Barnes sufficiently exhausted the
administrative procedures available to her, finding that Barnes
acted in good faith and made reasonable efforts to provide the
necessary relevant information to the SEC.
On appeal, the Secretary argues that the district court erred
in finding that Barnes acted in good faith and with reasonable
effort. He alleges that the record establishes that Barnes failed
to cooperate with the administrative procedures and the district
court therefore lacked jurisdiction over her Title VII claims. We
agree.
Title VII describes the procedure for bringing a civil action
alleging discrimination:
Within thirty days of receipt of notice of final action taken
by a department, agency, or unit ... or after one hundred and
eighty days from the filing of the initial charge with the
department, agency or unit or with the Equal Employment
Opportunity Commission on appeal from a decision or order of
such department, agency or unit until such time as final
action may be taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved by the
final disposition of his complaint, or by the failure to take
final action on his complaint, may file a civil action as
provided in section 2000e-5 of this title....
42 U.S.C. § 2000e-16(c) (1989).
The 180-day provision essentially allows the claimant to
appeal to the district court if there has not been final agency
action on her claim after six months from filing the claim with the
agency. Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.1990).
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There is no dispute that more than 180 days passed between the time
Barnes filed her formal complaint and the time she filed her Title
VII action in district court. However, it is well established
that, notwithstanding the passage of 180 days, plaintiffs who
resort to the administrative process but do not cooperate in the
proceedings can thereby fail to exhaust their administrative
remedies. Johnson v. Bergland, 614 F.2d 415, 418 (5th
Cir.1980)(finding no federal court jurisdiction where plaintiff's
administrative complaint "described general situations that could
have occurred at any time; ... [and] did not set out any specific
incidents or dates of discrimination"). The purpose of exhaustion
is to give the agency the information it needs to investigate and
resolve the dispute between the employee and the employer. "The
test for cooperation in the administrative process is a common
sense one, geared to the functional demands of dispute resolution."
Id. at 1493. Good faith effort by the employee to cooperate with
the agency and the EEOC and to provide all relevant, available
information is all that is required to demonstrate an exhaustion of
administrative remedies. Id. After reviewing the record, we
conclude that Barnes did not act in good faith or make reasonable
efforts to provide the necessary relevant information to the SEC
after filing her formal complaint. She repeatedly refused to
answer questions, provide details, make a statement, give a
deposition or even sign her complaint. Even after extensive
investigation, the EEOC did not have the information it needed to
pursue and resolve Barnes's dispute with the SEC. It is clear that
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as to her gender and sexual harassment claims, which were only
marginally referenced in the informal process, she wholly failed to
exhaust her administrative remedies.
The factual bases of Barnes's claims of racial discrimination
were better developed during the informal phase of the
administrative process than were her sexual harassment and gender
discrimination claims. This case presents the question whether a
plaintiff who cooperates during the investigation of her informal
complaint but refuses to cooperate after filing a formal complaint
may rely on her earlier cooperation as the basis of exhaustion.
The answer in this case is that she may not. While we recognize
that a plaintiff need not participate in a futile exercise, see
Jordan v. United States, 522 F.2d 1128 (8th Cir.1975), the record
does not support the conclusion that the EEOC's formal complaint
process would have proven futile if Barnes had participated in good
faith. During the informal complaint stage, Barnes took the
position that Matta did not treat her fairly because of her race.
Even after the EEO investigator raised questions about the
possibility of gender discrimination and sexual harassment, Barnes
failed to attribute her problems with Matta to such discrimination
during the informal process. However, in the formal complaint,
sexual harassment and gender discrimination figured prominently in
Barnes's explanation for her alleged suffering of disparate
treatment illustrating the inconsistencies between her formal and
informal complaints. Cooperation in an earlier informal process is
not sufficient to satisfy the obligation to exhaust administrative
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remedies by cooperating in a subsequent formal investigation.
Further, the record indicates that the EEOC took both Matta's
formal and informal complaint seriously, devoting extensive time
and resources to investigating the claims, as well as suspending
Matta until the allegations could be resolved. Had Barnes complied
with the SEC's requests for cooperation, the agency could have
ruled on the merits of her complaint. Due to Barnes's refusal, it
was unable to do so and canceled the complaint. The law affords
the agency discretion to cancel a formal complaint on the ground
that the complainant has failed, after due opportunity, to supply
the agency with the information sufficiently specific to enable it
to conduct a meaningful investigation. Johnson v. Bergland, 614
F.2d 415, 418 (5th Cir.1980). We find that the agency did not
abuse its discretion in canceling the complaint in this case.
Further, a complainant may not be dilatory at the administrative
level, wait for the 180 days to pass, and then invoke the
jurisdiction of the federal court. See Id. Because Barnes refused
to cooperate, thereby failing to exhaust her administrative
remedies, the district court lacked jurisdiction to adjudicate her
Title VII claims. See Id.JURISDICTION OF THE EQUAL PAY ACT CLAIM
The district court also lacked jurisdiction over Barnes's
claims asserted against the United States under the Equal Pay Act.
Under the Tucker Act, 28 U.S.C. § 1491, a plaintiff asserting an
Equal Pay Act cause of action must bring that action in the Court
of Federal Claims if the claim, including the fees sought, exceeds
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$10,000. Because Barnes's claim greatly exceeded the
jurisdictional limit, the district court lacked jurisdiction to
adjudicate the claim. See Wilkerson v. United States, 67 F.3d 112(5th Cir.1995). Although this issue was not raised below, a
jurisdictional matter cannot be waived and can be raised at any
time. See Graham v. Henegar, 640 F.2d 732, 734 n. 4 (5th
Cir.1981).
CONCLUSION
Because the district court lacked jurisdiction to hear
Barnes's claims, we reverse the judgment for Barnes, positing no
opinion on the merits of those claims.
REVERSED.
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