UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JENNIFER DAHL MURPHY; WENDY K.
JEFFERSON; BARBARA CRAWFORD;
DIANE V. MARSHALL; LINDA V.
ADGERSON; MERICAL F. PAGE-FILLIE;
ANITA BAKER; ALVINA M. WALTERS;
BRENDA L. BERKLEY; CATHY BETHEA;
HELEN PHILIPPE-THEODULE; FLORENCE
R. KIRSCH; CHRISTINE D. JOSEPH;
YVONNE UPSHUR; LORRAINE KELLY;
NELLO POWELL; CHARLES BERKLEY;
JAMES LIVINGSTON; ROBERT C.
                                                       No. 98-2308
MOORE; GEORGE CUFFIA; ROBERT S.
MUSE; VALERIE BENNETT; KELLEE L.
ALLEN; ERNEST A. REID, individually
and as class representatives on
behalf of all individuals similarly
situated,
Plaintiffs-Appellants,

v.

TOGO D. WEST, JR., Secretary of the
Army, Department of the Army,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-98-185-AMD)

Submitted: January 29, 1999

Decided: February 11, 1999

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael J. Wilson, HERMINA LAW GROUP, Laurel, Maryland, for
Appellants. Lynne A. Battaglia, United States Attorney, Charles J.
Peters, Assistant United States Attorney, Baltimore, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants, present and former employees of the Army Research
Laboratory ("ARL") in Adelphi, Maryland, appeal the district court's
order dismissing their class action filed under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-16 (1994), and 42 U.S.C.
§ 1981 (1994), asserting sexual harassment, race and sex discrimina-
tion, and retaliation. We agree with the district court that the class
failed to exhaust its administrative remedies and affirm.

In 1995 Appellants filed a class action in district court. On June 3,
1996, the defendants in that action filed a motion to dismiss asserting
that the plaintiffs had failed to exhaust their administrative remedies
by filing an administrative class complaint with the ARL's Equal
Employment Opportunity Office ("EEO"). On June 26, 1996, class
representative Jennifer Murphy filed an administrative complaint with
the EEO. In accordance with internal agency regulations, the EEO
held the administrative complaint in abeyance pending the resolution
of the federal lawsuit. On November 13, 1996, the district court dis-
missed the class complaint for failure to exhaust administrative reme-
dies. See Murphy v. West, 945 F. Supp. 874, 876-77 (D. Md. 1996).

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In dismissing the action the court refused to recognize a "futility"
exception to the Title VII exhaustion requirement in light of plain-
tiffs' complete disregard for the administrative process. Id. at 876.
The EEO then notified Murphy of her right to contact an EEO coun-
selor so that the EEO could investigate the allegations of discrimina-
tion set forth in the June 26, 1996, class complaint.

Thereafter class counsel sent EEO Counselor Shirley Cason a letter
in which he asserted an unequivocal lack of confidence in the EEO's
ability to adequately investigate and resolve the class's allegations of
discrimination. Nonetheless, counsel and Murphy met with Cason as
part of the precomplaint counseling process. Following the meeting,
Cason sent counsel a series of letters advising him of the established
procedures governing the investigation and disposition of EEO com-
plaints, and further indicating that she would be unable to investigate
the matter unless the class gave her a revised complaint that clearly
articulated the alleged adverse discrimination upon which the class
sought relief. Counsel responded by accusing Cason and the EEO of
delaying the investigation and asserted that the class had already ade-
quately informed the EEO of the discriminatory conduct relevant to
their claims. His letter further stated that if the EEO did not inform
the class of the results of its investigation in ten days, the class would
refile suit in federal court.

On June 9, 1997, Cason terminated the EEO's informal inquiry
based on the class's failure to present her with clear and specific alle-
gations upon which she could base her investigation. Counsel then
filed a formal class action complaint with the EEO. An Administra-
tive Law Judge ultimately dismissed the complaint after the class filed
this action in federal court.

Whether a party is entitled to summary judgment is reviewed de
novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995).1
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1 Appellants are correct in their assertion that while purportedly grant-
ing Defendant's motion to dismiss under Fed. R. Civ. P. 12(b)(6), the
district court's consideration of documents and affidavits outside the
pleadings resulted in a grant of summary judgment. See Fed. R. Civ. P.
12(b); Jakubiak v. Perry, 101 F.3d 23, 25 n.1 (4th Cir. 1996). Appellants
are incorrect, however, that this oversight warrants reversal of the district
court's order. See id.

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A summary judgment motion should be granted only if there is no
genuine dispute as to an issue of material fact and the moving party
is entitled to judgment as a matter of law. Id. (citing Fed. R. Civ. P.
56(c)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Timely exhaustion of administrative remedies is a prerequisite to
filing suit in federal court pursuant to Title VII. See 42 U.S.C.
§ 2000e-16(c) (1994); 29 C.F.R. § 1614.110 (1997) (following the
final decision of an agency, an employee may either appeal to the
Equal Employment Opportunity Commission, or file a civil action in
federal district court); Zografov v. V.A. Med. Ctr., 779 F.2d 967, 968-
69 (4th Cir. 1985); Woodard v. Lehman, 717 F.2d 909, 914 (4th Cir.
1983). The exhaustion procedures set forth in Title 29, section 1614
of the Code of Federal Regulations expressly apply to class com-
plaints. See 29 C.F.R. § 1614.103(a) (1997). Those procedures state:

          [a]n aggrieved person must initiate contact with a[n] [EEO]
          Counselor within 45 days of the date of the matter alleged
          to be discriminatory or, in the case of personnel action,
          within 45 days of the effective date of the action.

29 C.F.R. § 1614.105(a)(1) (1997). During this precomplaint proce-
dure, the complainant must provide the EEO Counselor with "specific
information or details of discriminatory action suffered by [the
class]." Woodward, 717 F.2d at 914. The failure to provide such spec-
ified information requires the dismissal of a complaint for failure to
exhaust administrative remedies. Id.

Appellants' June 26, 1996, class complaint alleged only general
acts of discrimination against African Americans and women, without
naming the specific individuals subject to discrimination, the specific
date on which the discrimination took place, or any other details
regarding the discrimination. During the precomplaint procedure,
Appellants did not provide the EEO Counselor with more detailed
information about the alleged discriminatory actions forming the basis
of the class complaint. On this basis we find that the district court
properly dismissed Appellants' Title VII claims for failure to exhaust
administrative remedies.2
_________________________________________________________________
2 The district court also dismissed the complaint to the extent that it
sought to predicate jurisdiction upon 42 U.S.C.§ 1981. While the Appel-

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We find no merit to Appellants' contention that a past history of
individual complaints of discrimination and the filing of the 1995 fed-
eral lawsuit absolved them of the obligation to provide the EEO with
additional information. The precomplaint procedures set forth in 29
C.F.R. §§ 1614.103-105, provide no such exception to the require-
ment that the complainant provide "specific information or details of
discriminatory action suffered by [the class]" within 45 days of the
initial contact with the counselor. Woodward, 717 F.2d at 914. Appel-
lants offer no support for their assertion that because EEO Counselor
Cason had no knowledge of the past complaints she was not qualified
to terminate the precomplaint process based on her inability to obtain
requisite information from the Plaintiffs.

The record is devoid of any indication that the class ever contacted
the EEO prior to the class complaint filed June 26, 1996, and prior
complaints filed by individual class members and the exhaustion of
individual administrative remedies are not sufficient to satisfy the
exhaustion requirements for a class action suit. See Gulley v. Orr, 905
F.2d 1383, 1385 (10th Cir. 1990) (citing cases). Hence, Appellants'
failure to provide specific information of discriminatory conduct
occurring within the forty-five days prior to the class's initiation of
contact with the EEO constituted a failure to comply with the exhaus-
tion procedures.

Appellants also claim that the district court erred in denying limited
discovery to investigate whether the EEO complied with its own regu-
latory scheme and properly handled the past complaints of discrimi-
nation filed by individual class members. We review a district court's
actions in managing discovery for an abuse of discretion. See Lone
Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d
922, 929 (4th Cir. 1995). The district court refused to permit discov-
ery based on Appellants' failure to make a substantial showing that
_________________________________________________________________
lants have not challenged the dismissal of their§ 1981 claims, we note
that § 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e-16, provides the exclusive judicial remedy for claims of discrim-
ination by federal employees. See Brown v. General Serv. Admin., 425
U.S. 820, 835 (1976); Zombro v. Baltimore City Police Dep't, 868 F.2d
1364, 1368 (4th Cir. 1989).

                    5
the requested discovery was essential to the fair resolution of the
pending motion to dismiss. We can find no authority in support of
Appellants' assertion that under the circumstances the district court
was required to permit discovery on the issue of exhaustion. Even
without EEO records, Appellants had the opportunity to present affi-
davits to the district court to demonstrate that a material dispute
existed on the issue of whether or not they had exhausted their admin-
istrative remedies.3 Accordingly, we find no abuse of discretion in the
district court's denial of Appellants' discovery motion.

Finally, Appellants assert that the futility exception to the exhaus-
tion requirement is applicable to this case, and that the district court
erred in not equitably tolling the Title VII time requirements in light
of the alleged history of discrimination complaints class members
filed with the EEO. We find that Appellants have waived these claims
on appeal based on their failure to raise them in this case before the
district court. See Liberty Corp. v. NCNB Nat'l Bank, 984 F.2d 1383,
1389 (4th Cir. 1993).

The record contains no evidence from which we can conclude that
Appellants, as a class, initiated contact with the EEO within 45 days
of the alleged discriminatory conduct suffered by the class. We there-
fore find that Appellants failed to comply with the exhaustion proce-
dures set forth in 29 C.F.R. § 1614.105(a)(1), and affirm the district
court's dismissal of the class complaint on this basis. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
_________________________________________________________________
3 We note that the only affidavit Appellants produced acknowledged
that the EEO never gave any indication that any of the past complaints
filed by individual class members would be addressed as class com-
plaints.




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