JDs Rising

By Francis Rojas

Certainly, the rule of thumb has always been to either A) go through the EEOC, cross-file with state departmental agencies, and wait and see; or B) file the charges, ask for the right to sue letters.  Now it looks like you have a third option!  Accept the winnings on the winning cases, and file with the court for the rest of the causes of action.

I recently came across a DC Circuit case, which stated that an employee, if dissatisfied with the EEOC result, before appealing or refiling their claims in district court, that employee may accept the results of the winning claims and pursue the losing claims in court.

Even though this case comes to us from the DC Circuit, it certainly helps to set the precedent that not all is doomed after a resolution of the case.  Or, will attorneys be concerned that the case may just never die?

The DC Circuit case is Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010).   The three judge panel opinion summarizes: “On September 18, 2007, an EEOC administrative judge found that the Interior Department had discriminated against Payne on account of her religion. The administrative judge also found, however, that the Department had not retaliated against her for filing a complaint. In October 2007, the judge entered an order for monetary damages on the discrimination charge, which the Department paid in December 2007.” Payne then filed a civil action on the retaliation claim. The district court dismissed on the ground that “a federal employee who obtains a final administrative disposition that finds discrimination . . . as to a portion of the allegations in the EEO Complaint, may [not] challenge in federal court just those liability findings by the EEOC that are unfavorable to the employee . . . while preserving those liability findings that are favorable to her.”

The panel reverses. It applies a plain-meaning reading to the sparse language of the relevant Title VII section:

“The provision of Title VII that provides federal employees with a cause of action states: ‘[A]n employee . . . aggrieved by the final disposition of his complaint . . . may file a civil action.’ 42 U.S.C. § 2000e-16(c). As the government concedes, an employee like Payne, who did not win all of the claims raised in her EEO complaint, is aggrieved by that disposition. Oral Arg. Recording 9:50-9:55. At the same time, Payne is in no sense ‘aggrieved by’ the claim she won before her agency, and there is nothing in the text of section 2000e-16(c) that requires her to include that claim in a case she files in court.”

Although the three judge panel recognizes that there is no interpretation support of the plaintiff’s argument in the statute, the DC Circuit nevertheless holds that “ section 2000e-16(c) authorizes the employee to file in federal court after ‘final action taken by a department [or] agency.’ Nothing in the statutory language renders such ‘final’ agency action nonfinal merely because the employee files a civil action.” (emphasis added).

The panel also holds that this treatment will make sure that all employees (private and public sector) would be treated the same.  Contrary, to the arguments filed by the government.

“In sum, an employee’s right to trial de novo — whether her employer is the federal government or a private company — means that she is entitled to a plenary trial of whatever claims she brings to court. It does not mean that she must sue on claims she has no interest in pursuing. Indeed, were we to impose such a requirement, we would ourselves be treating federal employees differently than private-sector employees. After all, Title VII does not require a private-sector employee, who complains to her employer about two acts of discrimination but receives voluntary recompense for (only) one, to sue on both claims. See 42 U.S.C. § 2000e-5 (authorizing private-sector employees to bring civil actions for violations of Title VII).”