## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 17 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LONGINO MONREAL III, Postmaster, Sangelo, Texas; FELIX R. FIGUEROA, U.S. Postal Inspector, San Antonio Domicile, Texas; LORENZO ORTIZ, Plant Manager, North Houston, Texas; DAVID L. MEDINA, Plant Manager, Denver Bulk Mail Center; RICHARD M. SANCHEZ, Lead Plant Manager, Processing and Distribution, Omaha, Nebraska; DAVID E. NARANJO, Postmaster, Espanola, New Mexico; and ERNEST N. CANDELARIA JR., Service Specialist, Denver Bulk Mail Center, on behalf of themselves and others similarly situated, Plaintiffs - Appellants,

v. JOHN E. POTTER, in his official capacity as Postmaster General of the United States Postal Service, Defendant - Appellee. No. 02-1195

Appeal from the United States District Court

for the District of Colorado (D.C. No. 97-S-548)- 2 -

David C. Warren, Warren & Boonin LLP, Boulder, Colo rado (Jonathan B. Boonin, Warren & Boonin LLP, Boulder, Colorado, andHartley David Alley, Wheat Ridge, Colorado, with him on the briefs) for Plaintiffs-Appellants. Eric David Miller, Attorney, Appellate Staff Civil Division, United States Department of Justice, Washington, D.C. (Robert D. McCallum, Jr., Assistant Attorney General, United States Department of Justi ce, Washington, D.C., John W. Suthers, United States Attorney, Denver, Colorad o, and Marleigh D. Dover, Attorney, Appellate Staff Civil Division, United St ates Department of Justice, Washington, D.C. with him on the brief) for Defenda nt-Appellee.

Before EBEL , PORFILIO , and O’BRIEN , Circuit Judges.

EBEL , Circuit Judge.

Seven management-level employees of the United Stat es Postal Service (“Plaintiffs”) appeal the district court’s dismissa l of their individual and class allegations of race and national origin discriminat ion and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U. S.C. § 2000e-16. The district court dismissed their individual claims for failure to exhaust and their class claims for failure to satisfy the requirements of F ederal Rule of Civil Procedure
23. With respect to Plaintiffs’ individual claims, we f ind that the district court erroneously concluded that Plaintiffs failed to exh aust their administrative remedies and REVERSE and REMAND these claims for fu rther proceedings.1 All citations herein are to the 1997 edition of the CFR, which was in effect

during the time events relevant to this case occurr ed. Some sections have since been renumbered, but no substantive amendments rele vant to this case have been made. - 3 - With respect to the district court’s denial of clas s certification, however, we AFFIRM its judgment.

I. BACKGROUND Seven management-level Hispanic employees of the Un ited States Postal Service (“Plaintiffs”) brought this Title VII actio n on behalf of themselves and other similarly situated employees. In addition to asserting individual claims of race and national origin discrimination, Plaintiffs also advance class claims alleging that the United States Postal Service (“US PS”), through numerous policies, engages in a pattern or practice of discr imination against Hispanic management-level employees and that its policies have a disparate impact on these employees. The district court dismissed Plai ntiffs’ individual claims for failure to exhaust and dismissed the class claims f or failure to satisfy the requirements of Rule 23. Special regulations govern the filing of discrimination claims by federal government employees. See generally29 C.F.R., Part 1614. 1 Pursuant to these regulations, employees who wish to file claims of d iscrimination must first2Now 29 C.F.R. § 1614.407.

3 The claims asserted in these complaints were: • In November 1994, Plaintiff Medina alleged that Ar ea Vice President Craig Wade did not select him for promotion to the positi on of Manager of Operations for the Western Area in August 1994, or the position of District Manager, Denver, in September 1994. • In May 1995, Plaintiff Monreal alleged that on Jan uary 3, 1995, he was not selected for the position of Postmaster in Austin, Texas. • In March 1996, Plaintiff Monreal alleged that on D ecember 9, 1996, the Customer Services Manager reduced the staffing of the San Angelo Post (continued...) - 4 - “consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a) (1997 ). If the counseling is unsuccessful, the employee may file a formal compla int with the agency that discriminated against him or her. Id. § 1614.106. Employees wishing to file a complaint of class discrimination must follow similar procedures. Id

. § 1614.204. If 180 days passes without a final decision by the agency or the EEOC on an individual or class complaint, the complaining empl oyee may file a civil action against the agency in an appropriate United States District Court. Id. § 1614.408. 2 In accordance with these regulations, Plaintiffs pu rsued their claims within the grievance system set up by the USPS prior to fi ling the instant action in federal district court. Between 1994 and 1996, thr ee of the Plaintiffs (Monreal, Medina and Figueroa) filed with the USPS individual complaints of race discrimination and retaliation. 3 We will refer to the claims asserted in these3 (...continued)

Office Business Mail Entry Section by 20 hours per week. • In June 1996, Plaintiff Figueroa alleged that he w as discriminated against on April 2, 1996, when his supervisor, Henry Palmer , told him he would face possible discipline for discrepancies in recor d-keeping unless he requested a voluntary transfer to San Antonio, Texa s. • In July 1996, Plaintiff Monreal alleged that he wa s retaliated against on March 22, 1996, when he received an unacceptable me rit rating, was denied a lump sum payment and was not provided with inform ation about the merit ratings of other postmasters. • In September 1996, Plaintiff Medina alleged that h e was discriminated and retaliated against when Area Vice President Craig W ade awarded him an insufficient pay raise and bonus, and unjustly accu sed him of failing to perform his duties. - 5 - complaints as “individual administrative claims.” For over 180 days, the USPS did not act on any of these complaints. In June 1996, five of the Plaintiffs (Monreal, Figu eroa, Ortiz, Candelaria and Medina) initiated a class complaint of discrimi nation on behalf of certain management-level current and former Hispanic employ ees of the USPS. See 29 C.F.R. § 1614.204. They first filed a request for counseling, which asserted individual claims of discrimination and challenged fourteen allegedly discriminatory agency actions or policies: 1) a di scriminatory Corporate Succession Planning Process; 2) a hostile and retal iatory environment that deterred class members from complaining about Title VII violations; 3) retaliation against class members who complained about Title VI I violations; 4) inequitable merit raises, promotions, and bonuses; 5) unjustifi ably low evaluations; 6)4 These claims are:

• Plaintiff Monreal alleged that 1) on May 31, 1996, he received a temporary assignment in Abilene, Texas, which was not an advancement opportunity, despite the requirement in a settlement agreement t hat it be one; 2) on May 24, 1996, he was denied a promotion to the positionof Postmaster, (continued...) - 6 - inadequate investigation of EEO complaints; 7) non- selection for promotion and arbitrary demotion; 8) failure to inform class memb ers of advancement opportunities; 9) excessive discipline; 10) inadequ ate rewards; 11) humiliation; 12) discontinuation of programs designed for the ad vancement of class members; 13) failure to honor existing Title VII settlement agreements; and 14) “other” agency actions “which damage the class members.” In September 1996, after they had pursued the requi red course of counseling, all seven Plaintiffs, as agents of a cl ass of Hispanic employees, filed a class administrative complaint, alleging the same f ourteen grounds of discrimination as well as all of the individual cla ims of discrimination alleged in the initial counseling request. Six of the Plainti ffs also added additional individual allegations of discrimination, but these did not include the individual administrative claims that Medina, Figueroa and Mon real had previously asserted in their individual complaints. We will refer to t he allegations of individual discrimination that were presented in this class ad ministrative complaint as “individual class administrative claims.” 44 (...continued)

Springfield, Missouri; 3) on June 13, 1996, he was denied a promotion to the position of Postmaster, Erie, Pennsylvania, on the ground that he needed additional developmental training and assign ments, which he allegedly had been denied in violation of a pre-exi sting settlement agreement; and 4) that a supervisor made a retaliat ory threat to fire him on July 1, 1996, for participating in the class action , verbally abused him on July 30, 1996, and attempted to intimidate him on A ugust 5, 1996. • Plaintiff Figueroa alleged that he was transferred involuntarily and demoted in retaliation for filing his individual administrative complaint, and that on June 20, 1996, he was falsely informed that charges were pending against him as a result of an Inspection Service investigat ion. • Plaintiff Ortiz alleged that his supervisors haras sed him, removed him from his position and denied him a merit pay increase. • Plaintiff Candelaria alleged that he had been deni ed a promotion and pay in violation of a prior settlement agreement, and thathe was subjected to humiliation and abusive language by a manager. • Plaintiff Sanchez alleged that in 1992 he was disc riminatorily rejected for a position; that in January 1993 he was rejected for a position in favor of an unqualified employee selected by a USPS vice presid ent; that in July 1995 he was removed from an assignment in favor of an un qualified employee; that in February 1996 he was wrongfully denied an award for his accomplishments; and that he had failed to timely f ile EEO charges on these claims because of fear of reprisal. • Plaintiff Naranjo alleged that he had been deterre d from seeking promotion and advancement to PCES executive ranks by his fearof being “cut down,” by the lack of an effective EEO program to protect his rights, and by having been deprived of information necessary to seek adva ncement. - 7 - The class complaint was transferred to the EEOC as required by 29 C.F.R. § 1614.204(d). One hundred and eighty days passed without a decision by the USPS or EEOC on this complaint. On March 19, 1997, believing that they had exhausted all claims—class and individual—alleged i n the class administrative complaint by waiting 180 days, Plaintiffs filed thi s action in the District of5Now 29 C.F.R. § 1614.107(a)(3). - 8 - Colorado. The complaint essentially made the same allegations, both class and individual, as the class administrative complaint, except that Plaintiffs Ortiz and Naranjo both added claims that they had been deterr ed from bringing Title VII claims by a hostile and retaliatory environment. T he complaint explicitly excluded, however, the individual claims made by Pl aintiffs Monreal, Figueroa and Medina in their individual administrative compl aints, which they were still pursuing before the USPS. Shortly after the civil action was filed in the dis trict court, the EEOC remanded the class administrative complaint, which had been filed with it over six months earlier, to the USPS to dismiss under 29 C.F .R. § 1614.107(c). 5 Section 1614.107(c) instructs the agency to dismiss a compl aint when over 180 days has passed since the complaint was filed and the compla int is the “basis of a pending civil action in a United States District Court in w hich the complainant is a party.” In May 1997, Plaintiffs first amended their complai nt to add allegations regarding recent instances of discriminatory action s. The First Amended Complaint also expressly reiterated that the Plaint iffs did not seek relief on any of the claims which were still pending as individual a dministrative complaints with6Nevertheless, it does not appear that any of the fa cts related to Medina,

Figueroa, and Monreal’s individual administrative c laims were included in the original complaint or First Amended Complaint. All of the facts alleged in the original and First Amended Complaints related to other Plaintiffs or to instances of discrimination not included in Medina, Figueroa, and Monreal’s individual administrative complaints. - 9 - the USPS, and to the extent which any similar facts were alleged, they were solely “for purposes of illustration and clarity.” 6 Despite this explicit disclaimer, from May through September 1997, the USPS issued decisions dismissing the individual adm inistrative complaints of Plaintiffs Monreal, Medina and Figueroa because the y were the “basis of a pending civil action in a United States District Co urt in which the complainant is a party and 180 days have passed since the filing o f the formal complaints of discrimination.” The dismissals were entered even though these three Plaintiffs had expressly excluded these claims from the class action complaint in federal district court. Plaintiffs Monreal and Figueroa did not appeal the USPS’s dismissal of their claims. Plaintiff Medina appealed the dismis sal of one of his claims to the EEOC as permitted by § 1614.401(a). In September 1 998, the EEOC dismissed Medina’s appeal on the ground that the claim had be en alleged in the district7Now 29 C.F.R. § 1614.405(b). - 10 -

court proceeding. Medina did not thereafter reques t reconsideration, as permitted by § 1614.407. 7 On June 23, 1997, the USPS moved to dismiss the Fir st Amended Complaint. At a November 1997 hearing on the motio n, the district court indicated its belief that although Plaintiffs had e xhausted their administrative remedies with respect to the class claims in the class administrative complaint, they had not appropriately exhausted their administ rative remedies with respect to the individual claims in the class administrative complaint. The district court then dismissed Plaintiffs’ First Amended Complaint and proposed Second Amended Complaint for failure to comply with the “p lain statement” requirement of Rule 8(a), but granted them permission to file aThird Amended Complaint. The district court also stayed discovery on class c ertification at this hearing. As instructed by the district court, Plaintiffs fil ed their Third Amended Complaint. Apparently reacting to the district cou rt’s statements at the hearing regarding the exhaustion of the individual class ad ministrative claims, Plaintiffs removed all reference to these claims from the Thir d Amended Complaint and asserted only the class claims. The USPS moved to dismiss again. The district court held a hearing on May 27, 1998. Seeming to c ontradict its previous statements implying that the administrative remedie s for the individual claims had- 11 -

not been exhausted and should therefore be removed, it ordered Plaintiffs to file a Fourth Amended Complaint “with specific allegations [of discrimination] as to each of the individual plaintiffs.” In compliance with this order, on July 2, 1998, Pla intiffs filed their Fourth Amended Complaint, alleging that the USPS engaged i n a pattern or practice of discrimination against Hispanic employees of specif ied management-level positions in regard to their opportunities for advancement and promotion, as well as a pattern or practice of retaliating against that class of employees when they protested such discrimination. They also alleged t hat the USPS’s policies had a disparate impact on Hispanic employees. The Plaint iffs who had filed individual administrative claims (Monreal, Medina and Figueroa ) specifically asserted those individual claims, which had been dismissed by the USPS, and all Plaintiffs asserted their individual class administrative clai ms, which had also been dismissed by the USPS. In October and November 1998, the USPS moved to dis miss Plaintiffs’ individual claims from the Fourth Amended Complaintfor failure to exhaust administrative remedies. On December 4, 1998, the district court held hearings on the individual claims of three of the Plaintiffs (Candelaria, Medina and Figueroa) and granted the USPS’s motion to dismiss those claims. The district court determined that the Plaintiffs who had filed individual administrative- 12 -

complaints were obligated to appeal the USPS’s dism issal of those complaints to the EEOC—and seek reconsideration if their appeal w as denied—before filing a civil action. It also determined that the Plaintif fs who had asserted their individual claims in the class administrative compl aint were obligated separately to file and exhaust individual administrative compl aints covering the same claims of discrimination. Thus, it dismissed all of Plain tiffs’ individual claims for failure to exhaust. Two years later, on December 1 , 2000, the district court dismissed the individual claims of the four remaini ng Plaintiffs (Monreal, Ortiz, Sanchez and Naranjo) on the same grounds. Although all individual claims had been dismissed at this point, the district court did not dismiss the Fourth Amended Complaint and ordered Plaintiffs to move for class certification. On February 15, 2001 , the Plaintiffs filed a motion to certify. On March 4, 2002, without a hearing, t he district court denied class certification and dismissed the complaint because o f the Plaintiffs’ failure to satisfy the requirements of Rule 23. Plaintiffs timely appealed. We exercise jurisdicti on over this appeal pursuant to 28 U.S.C. § 1291. Because we find thatPlaintiffs did exhaust their individual claims, we REVERSE the district court’s dismissal of these claims and REMAND for further proceedings. Because we agree w ith the district court that- 13 -

Plaintiffs did not satisfy the requirements of Rule 23, we AFFIRM its denial of class certification.

II. INDIVIDUAL CLAIMS After the filing of the Fourth Amended Complaint, w hich included the individual claims that the Plaintiffs had asserted in their individual administrative complaints and the individual claims that the Plain tiffs had asserted in the class administrative complaint, the USPS moved to dismiss all of the individual claims for Plaintiffs’ respective failures to exhaust admi nistrative remedies. The district court treated the individual administrative claims differently from the individual class administrative claims, but dismissed all of t hem for failure to exhaust. We agree with the parties that the district court’s treatment of the individual administrative claims was erroneous and must be reversed. We find that Plaintiffs also exhausted their individual cla ss administrative claims and reverse on this issue as well.

A. Individual Administrative Claims The district court dismissed the individual adminis trative claims that three of the Plaintiffs (Figueroa, Medina and Monreal) ad ded as part of the Fourth Amended Complaint after the USPS had dismissed the claims on the basis that- 14 -

180 days had passed since their filing and the clai ms were part of a pending civil action. The district court held that Plaintiffs ha d failed to exhaust their administrative remedies because they did not appeal the USPS’s dismissal of their claims or, if they had appealed (as Medina had), be cause they did not ask for reconsideration after the appeal had been denied. The parties agree that the district court’s conclus ion that these Plaintiffs had failed to exhaust these claims was erroneous. Under 29 C.F.R. § 1614.408(a), a complainant may file an action in federal court a fter receiving the agency’s final decision on an administrative complaint. In this c ase, the dismissals were clearly labeled “Final Agency Decision,” thus triggering Pl aintiffs’ rights to file civil actions. Although complainants have the optionto appeal an agency’s dismissal to the EEOC, id. § 1614.401(a), and to request reconsideration if t heir appeal is denied, id. § 1614.407(b), neither action is required for exha ustion purposes by § 1614.408(a). Thus, the individual administrative claims of Monreal, Medina and Figueroa which were asserted in the Fourth Amen ded Complaint should not have been dismissed for lack of exhaustion. Nevertheless, the USPS contends that some of these claims should be dismissed because they were not timely filed in the district court. A complainant must file a civil action within 90 days of receipt of a final decision. 29 C.F.R. § 1614.408(a). The claims asserted in Medina’s sec ond individual administrative- 15 -

complaint and Figueroa’s individual administrative complaints were dismissed by the USPS in May 1997, and the Plaintiffs did not ad d these claims to the civil action until the Fourth Amended Complaint in July 1 998. Thus, argues the USPS, these claims did not satisfy the 90-day deadline. We agree with Plaintiffs that this argument has bee n waived. See 29 C.F.R. § 1614.604(c) (providing that the “time limits in [ part 1614] are subject to waiver, estoppel and equitable tolling”); Harms v. Internal Revenue Serv. , 321 F.3d 1001, 1006 (10th Cir. 2003) (“The requirement that a plai ntiff file a timely civil action after the disposition of an individual EEO complain t is not a jurisdictional requirement, but rather is subject to waiver, estop pel, and equitable tolling.”). Nowhere in the record below does the USPS raise the argument that these claims are time-barred. In fact, the USPS dismissed the c laims for the very reason that the claims had been included in the original March 1997 complaint filed in the district court. Now, on appeal, the USPS tries to argue for the first time that the claims were not added until the Fourth Amended Comp laint. Generally, a “‘federal appellate court does not consider an issu e not passed upon below,’” see Walker v. Mather , 959 F.2d 894, 896 (10th Cir. 1992) (quoting Singl eton v. Wulff , 428 U.S. 106, 120 (1976)), and we decline to do s o now. The USPS has waived any defense based on the untimely filing of Plaintiff Figueroa and- 16 -

Plaintiff Medina’s claims in district court. We re verse and remand these claims for further proceedings.

B. Individual Class Administrative Claims The district court also dismissed the individual cl aims of the Plaintiffs that were originally asserted in the class administrativ e complaint. It reasoned that individual claims of discrimination could not be exhausted th rough presentation in a class administrative complaint. We conclude that individual allegations of discrimi nation can be exhausted through a class administrative complaint and accord ingly reverse the district court’s judgment. Although the EEOC regulations do address individual and class complaints in separate sections, see 29 C.F.R. § 1614.106 (1997) (“Individual complaints”); id. § 1614.204 (“Class complaints”), we find that theydo not mandate exclusive presentation of individual claims of discrimination in individual complaints. Section 1614.408, which gov erns the filing of civil actions following administrative complaints, provides: A complainant who has filed an individual complaint , an agent who has filed a class complaint or a claimant who has filed a claim for individual relief pursuant to a class complaint is authorized under title VII, the ADEA and the Rehabilitation Act to file a civil action i n an appropriate United States District Court: 1. Within 90 days of receipt of the final decision o n an individual or class complaint if no appeal has been filed;8 We reject Plaintiffs’ argument that they were “clai mant[s] who ha[ve] filed

[] claim[s] for individual relief pursuant to a cla ss complaint.” We believe the “claimants” identified in § 1614.408 are persons id entified in § 1614.204( l)(3), a particular provision in the regulation governing cl ass complaints. This provision allows “claimants” to assert claims for individual relief afteran agency finding of class-wide discrimination. It provides that: When discrimination is found in the final [agency] decisionand a class member believes that he or she is entitled to indiv idual relief , the class member may file a written claimwith the head of the agency or its EEO Director within 30 days of receipt of notification by the agency of its final (continued...) - 17 - 2. After 180 days from the date of filing an individ ual or class complaint if an appeal has not been filed and a fin al decision has not been issued; 3. Within 90 days of receipt of the Commission’s fin al decision on an appeal; or 4. After 180 days from the date of filing an appeal with the Commission if there has been no final decision by the Commissi on. 29 C.F.R. § 1614.408. Based on this section, we can see that the followin g persons are authorized to file civil actions in United States District Cou rt within the prescribed time periods: 1) “a complainantwho has filed an individual complaint”; 2) “an age nt who has filed a class complaint”; and 3) “a claiman twho has filed a claim for individual relief pursuant to a class complaint.” Id. (emphasis added). We find that, as “agent[s] who ha[ve] filed a class complaint,” Plaintiffs were permitted to assert their individual claims in this civil action. 8 Section8 (...continued)

decision. The claimmust include a specific, detailed showing that the claimantis a class member who was affected by a personnel action or matter resulting from the discriminatory policy or practice, and that this discriminatory action took place within the period of time for which the agency found class-wide discrimination in its final decision. . . . The agency shall issue a final decision on each such cl aim within 90 days of filing. Such decision must include a notice of the right to file an appeal or a civil actionin accordance with subpart D of this part and the applicable time limits. Id. § 1614.204( l)(3) (emphasis added). The use of the particular words “claimant” and “ind ividual relief” links this provision to the language in § 1614.408. Additiona lly, § 1614.204( l)(3) specifically notes that such a “claimant” may bring a civil action if his claim is denied. Thus, when § 1614.408 refers to the “claim ant[s] who ha[ve] filed [] claim[s] for individual relief pursuant to a class complaint,” we believe it refers back to this specific group of people identified in § 1614.204( l)(3). In this case, because there was no agency finding o f class-wide discrimination and Plaintiffs did not file claims o f individual relief pursuant to that finding as permitted by § 1614.204( l)(3), they are not the “claimants” identified in § 1614.408, and thus not entitled to bring a civil action as such. - 18 - 1614.204(a)(3) defines a class agent as “a class me mber who acts for the class during the processing of the class complaint.” Eac h of the Plaintiffs in this case were identified as agents of the class in the Pre-C omplaint Request for Counseling and/or the Class Administrative Complaint. The USPS argues, however, that, as agents of a class, Plaintiffs wer e permitted to file a civil action alleging class claims only. Individual claims, the USPS argues, must have been- 19 -

presented separately to the USPS in individual comp laints and exhausted before they could be presented in a civil action. This argument fails for two reasons. First, the re gulations expressly contemplate the filing and processing of individual claims through a class administrative complaint. Subsection ( l) of the “Class complaints” section provides that: When class-wide discrimination is not found, but itis found that the class agent is a victim of discrimination, § 1614.501 [Re medies and relief] shall apply. The agency shall also, within 60 days of th e issuance of the final decision finding no class-wide discrimination, issu e the acknowledgment of receipt of an individual complaint as required by [ the subsection governing individual complaints] and process in accordance wi th the provisions of subpart A of this part, each individual complaint t hat was subsumed into the class complaint. Id. § 1614.204( l)(2). Thus, if no class-wide discrimination is fou nd, this section instructs that any individual complaint by a class agent subsumed within the class complaint be processed under the section dealing wi th individual complaints. In this case, however, the individual complaints were never so processed because the agency did not make a finding that there had been n o class-wide discrimination. Plaintiffs should not be prejudiced by the agency’s particular disposition of the class proceeding which, in any event, by its dismis sal of the proceeding effectively exhausted the subsumed individual agentclaims as well. The “Class complaints” section also requires the ad ministrative judge adjudicating the complaint to make findings in his report on “systemic relief for- 20 -

the class and any individual relief, where appropri ate, with regard to the personnel action or matter that gave rise to the co mplaint. ” Id. § 1614.204( i )(1). If the judge “finds no class relief appropriate,” h e is instructed to “determine if a finding of individual discrimination is warranted a nd, if so, [to] recommend appropriate relief.” Id. § 1614.204( i )(2). This subsection also indicates that the EEOC anticipates that allegations of individual dis crimination warranting relief may be presented through a class complaint. Thus, the regulations support the proposition that individual claims may be exhausted through a class administrative complaint. We also find that the policies underlying the requi rement of exhaustion—“protecting administrative agency author ity and promoting judicial efficiency”—are satisfied in this case. McCarthy v. Madigan , 503 U.S. 140, 145 (1992), superseded by statute on other grounds . First, the administrative authority of the EEOC and the USPS are sufficientlyprotected. Because the individual claims were presented as such in the cla ss complaint, the agency was fully on notice of them. Nevertheless, it chose no t to investigate. Although we have held that class claims cannot be exhausted through an individual complaint, Belhomme v. Widnall , 127 F.3d 1214, 1217 (10th Cir. 1997); Gulley v. Orr , 905 F.2d 1383, 1384-85 (10th Cir. 1990), that situation is distinct from the one presented here. In Belhomme , we reasoned that a class- 21 -

claim could not be exhausted through an individual complaint because the agency was not sufficiently notified of the complainant’s intent to raise class allegations through his filing of an individual complaint. See Belhomme , 127 F.3d at 1217 (“On Mr. Belhomme’s claim for class-action status u nder Title VII, the district court properly dismissed the issue because Mr. Belh omme failed to raise the claim at any pointin the administrative process before the Air Force or EEOC.”) (emphasis added). The same reasoning does not appl y in this case. Plaintiffs clearly made claims of individual discrimination wi thin the class complaint, as indeed they were required to do in order to demonst rate their qualification to serve as class representatives. 29 C.F.R. § 1614.2 04(a)(2)(iii) (requiring that class agents’ claims be typical of those of the cla ss). The USPS cannot contend that it was unaware that Plaintiffs had individual complaints of discrimination.
See Gulley , 905 F.2d at 1384 (observing that the class admini strative complaint was designed as a “mechanism . . . through which an individual could assert class claims in the context of his own individual discrim ination claims ”). It had ample notice and opportunity to adjudicate these individu al claims itself and did not do so within the prescribed time period. The policy of judicial efficiency also favors Plain tiffs. Requiring class agents to file both a class complaint and separate individual complaints would be a waste of time when all allegations can be present ed together in a class9 Consider, for instance, a complainant who filed an individual complaint of

discrimination and a class complaint of discriminat ion on the same day—January 1, 2003. Assuming that the agency acts on his individual complaint on February 1, 2003, the complainant would be requi red to file his civil action based on that individual complaint within 90 days, or no later than May 2, 2003. With respect to his class complaint, however, assum e the agency takes no action. The complainant is required to wait 180 days from the date of the filing of his class complaint—until July 1, 2003, until he may file a civil action. Thus, there is no window of time during which the complai nant could simultaneously file a civil action containing both his individual and class claims. - 22 - complaint. Further, requiring separate exhaustion of the class allegations and the class agent’s individual allegations that form the basis of the class allegations could create conflicting deadlines for filing a civ il action such that all the deadlines could not be satisfied. See 29 C.F.R. § 1614.408 (requiring that the complainant wait at least 180 days for a decision f rom the agency before filing a civil action and requiring that such an action be f iled within 90 days of a final decision). 9 For these reasons, we conclude that Plaintiffs ex hausted their individual claims through presentation in the class complaint and reverse and remand these claims to the district court.

III. CLASS CERTIFICATION Plaintiffs’ Fourth Amended Complaint asserts discri minatory pattern-orpractice and disparate impact claims on behalf of- 23 -

the class of all Hispanic persons who, at the time the discrimination occurred, were employees of the U.S. Postal Service as Postmasters (all levels) or as Level EAS 15 and up through [Postal C areer Executive Service] level, who have suffered from race discrim ination with respect to the terms and conditions of their employment, or pr omotions, or retaliation, from May 5, 1996, or after. The Complaint asserts that this class of employees was subjected to: 1) discrimination in the terms and conditions of emplo yment, including but not limited to: unjust promotion practices, inequity in compensation, unjust evaluations, improper job shifting and assignments, unjust discipline, underrecognition of contributions, disrespectful treatme nt of the person, inequity in training/information for advancement, and other ter ms and conditions of work; 2) the creation of a continuing hostile and retaliatory working environment that is so offensive and threatening as to actually deter Hisp anic Postmasters and managers from seeking advancement, and from making or supporting Title VII charges; and 3) the infliction of continuing and serial retaliat ion on Hispanic Postmasters and managers who make or support Title VII charges. Ac cording to the Complaint, these policies were “fostered, maintained, particip ated in, condoned, ratified, and/or approved by officers and top officials of th e Postal Service including without limitation, Marvin Runyon, Michael Coughlin , William Henderson, Charles Kernan, and Craig Wade.” In support of these claims, the Fourth Amended Comp laint cites Postal Service statistics to show that Hispanics constitut e a proportionately lower- 24 -

number of managers than do whites. Plaintiffs also allege that the USPS has “received numerous complaints of discrimination andretaliation” by class members and offer ninety-three declarations of disc rimination that they obtained from potential class members through preliminary in vestigation. Based on these claims, the Plaintiffs request the f ollowing relief: compensatory damages, including but not limited to those for emotional suffering; payment for lost income and benefits, including fro nt and back pay; where appropriate, reinstatement or, in the alternative, front pay; appropriate declaratory and/or injunctive relief, including final injunctiv e relief; pre-judgment and postjudgment interest at the highest lawful rate; attor ney and expert witness fees and costs; and such further relief as justice may requi re. The district court held that Plaintiffs’ class alle gations failed in three ways: 1) they made reference to the merits of the case in defining the class; 2) they failed to satisfy the commonality requirement of Ru le 23(a)(2); and 3) they did not satisfy any of the requirements of Rule 23(b). “The decision to grant or deny certification of a class belongs within the discret ion of the trial court.” Reed v.
Bowen , 849 F.2d 1307, 1309 (10th Cir. 1988). Because we find that Plaintiffs failed to satisfy the requirements of Rule 23(b), w e conclude that the court did not10 We need not focus on the “class definition” issue b ecause we can uphold

the district court’s rulings on the basis of its Ru le 23(b) analysis. - 25 - abuse its discretion in denying Plaintiffs’ motion for class certification and dismissing these claims. 10 To succeed on a motion for class certification, Pla intiffs must satisfy at least one subsection of Rule 23(b). In this case, Plaintiffs contend that they satisfy subsections (b)(2) and (b)(3). Under these sections, An action may be maintained as a class action if th e prerequisites of subdivision (a) are satisfied, and in addition:

. . . (2) the party opposing the class has acted or refuse d to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory reli ef with respect to the class as a whole; or (3) the court finds that the questions of law or fac t common to the members of the class predominate over any questions affecting only individual members, and that a class action is supe rior to other available methods for the fair and efficient adjudi cation of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually co ntrolling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirabili ty or undesirability of concentrating the litigation of the claims in th e particular forum; (D) the difficulties likely to be encountered in th e management of a class action. Fed. R. Civ. P. 23(b). Even if we assume that the “prerequisites of subsection (a) are satisfied,” we conclude that Plaintiffs have fa iled to satisfy the requirements of Rule 23(b)(2) or (b)(3).- 26 -

Under Rule 23(b)(2), “the party opposing the class [must] ha[ve] acted or refused to act on grounds generally applicable to t he class, thereby making appropriate final injunctive relief or correspondin g declaratory relief with respect to the class as a whole.” The district court rejec ted the applicability of this section because Plaintiffs failed to point to any p articular policy that the USPS applied to the entire class and because any claim f or injunctive or declaratory relief that Plaintiffs asserted was subsidiary to t heir claim for damages. The district court did not abuse its discretion in so finding. First, we agree that Plaintiffs simply have not articulated a polic y—besides generalized noncompliance with Title VII—that could be the subjectof injunctive or declaratory relief, nor does the Fourth Amended Complaint reque st any specific relief of this type. The Fourth Amended Complaint only generally asks for “appropriate declaratory and/or injunctive relief, including fin al injunctive relief.” Federal Rule of Civil Procedure 65(d) requires that injunct ions be “specific in terms” and “describe in reasonable detail, and not by referenc e to the complaint or other document, the act or acts sought to be restrained.” Based on the breadth of the discriminatory actions alleged by Plaintiffs, we ca nnot conceive of an injunction that would satisfy these requirements. See Keyes v. Sch. Dist. No. 1, Denver, Colo. , 895 F.2d 659, 668 & n.5 (10th Cir. 1990) (“[G]ene rally, injunctions simply requiring the defendant to obey the law are too vag ue [to satisfy Rule 65].”)11 We do not suggest that a plaintiff must set forth i n the pleadings the

requested injunction to the specificity required by Rule 65. However, the breadth and discontinuity of the acts of discrimination all eged here reveal how ill-suited a class-wide injunction would be that would satisfy the requirements of Rule 65. - 27 - (striking injunction prohibiting defendants “from d iscriminating on the basis of race, color or ethnicity in the operation of the sc hool system” and directing defendants “to use their expertise and resources to comply with the constitutional requirement of equal education opportunity for all who are entitled to the benefits of public education in Denver, Colorado”). 11 The district court also refused to certify a (b)(2) class because it found that the relief sought was primarily monetary damages. See Fed. R. Civ. P. 23 advisory committee’s note (“[Subdivision (b)(2)] do es not extend to cases in which the appropriate final relief relates exclusiv ely or predominantly to money damages.”). Because the variety of claims asserted in the Complaint do not lend themselves to the formulation of appropriate class- wide injunctive or declaratory relief and because it is clear from the pleadings h ere that the primary relief sought is monetary damages, the district court did not abu se its discretion in denying certification on this ground. See Boughton v. Cotter Corp. , 65 F.3d 823, 827 (10th Cir. 1995). The district court also found that Plaintiffs did n ot satisfy the requirements of 23(b)(3). Class actions under (b)(3) must have “questions of law or fact- 28 -

common to the members of the class [that] predominate over any questions affecting only individual members” and must be “sup erior to other available methods for the fair and efficient adjudication of the controversy.” In this case, Plaintiffs do not allege any common i ssues of fact, and the only common issue of law they assert is a violation of Title VII. The generality of the common issue that they allege is demonstrate d by their own argument in their appellants’ brief that the “Complaint clearly asserts, at a minimum, that during the class period the USPS had a policy, impo sed or allowed at the highest levels of management to intentionally discriminate against Hispanics employed at particular levels of management structure in connec tion with their advancement and promotion.” We conclude that the district court did not abuse its discretion in refusing to certify Plaintiffs’ proposed class unde r Rule 23(b)(3). Our conclusion that Plaintiffs do not satisfy Rule 23(b)(3)’s predominance criterion is bolstered by a consideration of the di strict court’s alternative ruling on Rule 23(a)’s commonality requirement. In assessing whether Plaintiffs had satisfied the lower standard of commonality require d by Rule 23(a), see Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623-24 (1997) (describing the predominance criterion of Rule 23(b)(3) as “far mor e demanding” that the Rule 23(a) commonality requirement), the district court observed Plaintiffs have not identified any specific policy of the Defendant purportedly responsible for the alleged discriminat ion. Nor have Plaintiffs12 Plaintiffs urge us to consider a “hybrid” certification whereby the liability

stage might be certified for class treatment under Rule 23(b)(2) even if the damages stage does not qualify for such treatment. See Robinson v. Metro-North Commuter R.R. , 267 F.3d 147, 167-69 (2d Cir. 2001). Compare Lemon v. Int’l Union of Operating Engr’s, Local No. 139, AFL-CIO , 216 F.3d 577, 581 (7th (continued...) - 29 - established any common policy that was applied to t he entire class in the same way. To the contrary, despite the “pattern an d practice” characterization of their claim, Plaintiffs have no t identified any overarching policy which commonly affects the class members. Indeed, no policy of the Defendant purportedly responsible forthe discrimination alleged has been articulated with any degree of spe cificity. Instead, Plaintiffs merely speculate that their particulariz ed claims are the result of a pattern and practice discrimination based upon th eir national origin. Although we do not rest our decision upon Rule 23(a ), cases that interpret that the commonality requirement of Rule 23(a) illu strate the instant Plaintiffs’ inability to satisfy Rule 23(b)(3)’s “far more demanding” requirement that common issues predominate. The principal Supreme Court case on Rule 23(a) comm onality is General Telephone Co. v. Falcon , 457 U.S. 147 (1982) (holding that a Mexican-Ameri can employee who was asserting a failure-to-promote cla im could not represent Mexican-American applicants who had failure-to-hire claims). The myriad discriminatory acts that Plaintiffs allege (e.g., f ailure to promote, failure to train, unequal pay, disrespectful treatment, etc.) each re quire independent legal analysis, and similarly challenge the predominance requiremen t of Rule 23(b)(3) if not also the commonality requirement of Rule 23(a). 1212 (...continued)

Cir. 2000) and Jefferson v. Ingersoll Int’l Inc. , 195 F.3d 894, 898 (7th Cir. 1999) withAllison v. Citgo Petroleum Corp. , 151 F.3d 402, 420-22 (5th Cir. 1998). We do not need to rule on a hybrid possibility because in the instant case, the liability stage does not satisfy either Rules 23(b)(2) or 23( b)(3). The district court’s ruling that plaintiffs did not allege a sufficient policy, practice or pattern of discrimination to warrant class treatment for liabi lity determination is not an abuse of discretion. - 30 - Granting or denying class certification is a highlyfact-intensive matter of practicality. See J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1289 (10th Cir. 1999); Reed v. Bowen , 849 F.2d 1307, 1309 (10th Cir. 1988) (“Whether a case should be allowed to proceed as a class action invo lves intensely practical considerations, most of which are purely factual orfact-intensive. Each case must be decided on its own facts, on the basis of ‘pract icalities and prudential considerations.’”) (citing United States Parole Com m’n v. Geraghty , 445 U.S. 388, 402-03, 406 n.11 (1980)). As a practical matt er, we cannot envision how a class action trial would proceed in this case. The prima facie case for a failureto-promote claim is completely different than that for a hostile environment claim or a retaliation claim, yet Plaintiffs allege all o f these. There is simply no common issue that predominates with respect to this class, nor does Plaintiff identify one. Thus, we conclude that the district court did not abuse its discretion in denying certification under Rule 23(b)(3).- 31 -

Finally, Plaintiffs challenge the district court’s refusal to allow them discovery on class certification issues. We reviewthe district court’s decision for an abuse of discretion. Soma Med. Int’l v. Standar d Chartered Bank , 196 F.3d 1292, 1300 (10th Cir. 1999). Discovery in this case was initially stayed over Pl aintiffs’ objection in November 1997, and Plaintiffs’ motions to lift the stay were denied. Plaintiffs’ argument that this decision constituted an abuse of discretion is based on their belief that more statistical or anecdotal evidence could have resulted in class certification. As discussed above, however, Plaint iffs’ Fourth Amended Complaint did not fail for lack of statistical evid ence, but for failure to identify one or more specific USPS policies that were discri minatory toward or imposed a common disparate impact on the proposed class. Thu s, the district court did not abuse its discretion in denying Plaintiffs’ motion for discovery.

IV. CONCLUSION Plaintiffs’ individual claims were all properly exh austed. We REVERSE and REMAND them to the district court for further p roceedings on the individual claims. The district court did not abuse its discr etion in refusing to certify a class because Plaintiffs’ allegations do not satisfy the requirements of Rule 23(b)(2) or- 32 -

(b)(3), nor did the district court abuse its discre tion in refusing to lift the stay on discovery. Therefore, its denial of class certific ation is AFFIRMED.