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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, DefendantAppellant.

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
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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
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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
 

1During 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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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.
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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
 

2In 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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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
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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.