I thought I'd share a recent decision we received from the Office of Federal Operations in the case of Jones v. McHugh (Army), Appeal No. 01-2011-3677. The Agency dismissed Ms. Jones's complaint of sexual harassment in a cursory order stating that she was a contractor, not an employee, and therefore not entitled to the federal EEO complaint process.
The OFO remanded for further investigation. The OFO reviewed the Agency's brief, which applied several of the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992), to determine whether Ms. Jones was is in fact an Agency employee. Having reviewed these factors, the OFO stated that she was not a federal employee under that test. HOWEVER, it went on to consider whether Ms. Jones was a de facto government employee, and concluded: "In the instant case, we find significant, and dispositive, the fact that the Program Manager, an Agency management official, was able to exercise his discretion in making the decision to retain or release Complainant from her position as a choreographer, and that no independent corporate entity served as a buffer between Complainant and the Agency on the issue of Complainant's continued association with the Agency. Therefore, upon review of the record, we find that the Agency, through its agent the Program Manager, exerted sufficient control over Complainant for the purpose of establishing her standing to utilize 29 C.F.R. Part 1614 EEO complaints process to pursue her sexual harassment claim."
– submitted by Dennis Chong
In Washington Teachers’ Union, Local #6 et al. v. Clarence Labor, Jr. et al, No. 11-OA-36 (D.C. Jan. 27, 2012), we (Jay Holland, Veronica Jackson and Brian Markovitz) just got a big victory for Washington Teachers' Union, and in fact all D.C. public employees, before the D.C. Court of Appeals re: the Office of Employee Appeals (OEA) failing to timely complete cases. WTU filed a Petition for Writ of Mandamus to force OEA to come into compliance regarding the timely resolution of employee appeals. MWELA and Metro Washington Council, AFL-CIO wrote amicus briefs in support, which greatly helped.
The District of Columbia Court of Appeals ordered that OEA respond to the Court within 20 days to explain "what actions it intends to undertake to address the delay in assigning administrative law judges in order to come into compliance with 6 DCMR § 632.1 (2008) (administrative judge 'shall issue an initial decision ... no later than 120 business days after the employee files a complete petition for appeal.' )."
Thanks to everyone at MWELA, especially Alan Kabat, Les Alderman, William Osborne, and Marie Hagen who wrote the amicus briefs.
– submitted by Brian Joseph Markovitz
In Theresa Devine v. Defense National Guard Bureau (Airforce National Guard, Army Reserve National Guard), EEOC No. 531-2011-00321X (EEOC - Baltimore Field Office Jan. 11, 2012), my co-counsel Gary Gilbert and I are please to report a default judgment was awarded to our client against the D.C. National Guard. The Judge held that the Agency's EEO Director failed to properly inform employees of their rights to file civilian discrimination complaints. Theresa Devine, a former civilian employee of the D.C. National Guard, won the default judgment following years of sexual harassment and retaliation at the hands of her supervisors and co-workers. Administrative Judge David Norken in the EEOC Baltimore Field Office imposed this severe sanction as a consequence of the Agency's egregious misconduct in the handling of Ms. Devine's sexual harassment complaint, and the ensuing litigation. According to the Judge, the Agency's EEO Director "materially" misled Ms. Devine preventing her from filing a sexual harassment complaint, failed to conduct an investigation of the complaint as required by EEOC regulations, and failed to inform other employees of their rights to file similar complaints. The Judge further ruled that, during litigation, Agency attorneys ignored the Judge's clear orders on discovery matters, disregarding his clear instructions, in what can only be described as an attempt to obstruct the discovery process and shield the Agency from the consequences of its misconduct.
The Judge found that Ms. Devine endured years of discrimination at the hands of Agency officials, including sexual harassment and pregnancy discrimination, that her frequent complaints were ignored, and that she was subjected to illegal retaliation for complaining about her mistreatment. The Judge concluded Ms. Devine's "supervisors and co-workers subjected her to offensive sex-based comments, such as suggesting she needed a 'fuck buddy' and comments from her supervisor, such as not wanting a woman in his shop." (Decision, p.23). The Judge found that Ms. Devine "complained to her chain-of-command on numerous occasions, to no effect… In fact, when she complained, the harassment got worse." (p. 23) In reprisal, "her two supervisors Daily and Bucholz, yelled at her for a half hour and disciplined her when she dared to go up the chain-of command to complain about their harassing conduct." When Ms. Devine became pregnant her supervisor "required her to perform menial clerical tasks [and] ignored her need for medical treatment when she broke out in a rash when she came in contact with some chemicals while pregnant." From that day forward, her supervisors "subjected her to intense scrutiny, more than any males they supervised or any other pregnant females, in order to develop a record to fire her." The Judge concluded, "The Agency did nothing for years to end the harassment even though [Ms. Devine] complained on several occasions." (p. 23).
Attorney Josh Bowers represents Ms. Devine as well as Vikki Rouleau who has a separate sexual harassment complaint against the D.C. National Guard. Ms. Devine, Ms. Rouleau and a third woman who requested to be anonymous all suffered extensive sexual harassment while employed as civilians by the D.C. National Guard at Andrews Air Force Base. Mr. Bowers said, "The three women joined the D.C. National Guard to support the fighter jets stationed at Andrews Air Force Base and to actively defend our country." He said, "The women were proud to serve their country, but after years of sexual harassment and the failure of management to protect them from sexual harassment, all three resigned from their civilian positions and did not reenlist in the National Guard at the end of their terms of duty."
– submitted by Josh Bowers
In Paula James v. Leon Panetta, DOD (Defense Threat Reduction Agency), EEOC Appeal No. 0120102361 (OFO Jan. 4, 2012), the EEOC’s Office of Federal Operations reversed summary judgment in a sexual harassment case. The decision is interesting because, besides reversing a summary judgment decision in favor of the agency, it deals with a situation where the complainant claimed that she was sexually assaulted by a coworker in 2002 but did not file a complaint at that time (due to fear, shame, fright and confusion as experienced by many sexual harassment victims). Later, in 2005, the co-worker (then a supervisor) came back into the picture and began to sexually harass the complainant again (comments, gestures). In 2006, the courageous complainant finally filed a complaint alleging sexual harassment back to 2002. The complaint was initially dismissed for untimeliness, but OFO reversed the dismissal noting that the alleged sexual harassment events between 2002 and 2006 constituted a “single claim” of sexual harassment. On remand, and after investigation, the case went to EEOC Washington Field Office (Administrative Judge Hodges) for hearing. But, the AJ granted summary judgment in favor of the agency reasoning that the 2002 events were still untimely, that the 2006 and later allegations were not “severe and pervasive,” and that there was no retaliation against complainant after she filed her complaint in 2006. AJ was reversed on all points, and the matter has been remanded for hearing.
There is good discussion in the opinion that, in order to make an actionable retaliatory harassment claim, a complainant does not have to allege a retaliatory “ultimate employment action.” In this case, after complainant filed her complaint in 2006 and met with the office director, rumors began to circulate that she had romantic affairs with other employees in the office to besmirch her character and credibility (totally untrue).
Finally, and, indicative of how difficult these cases are, the co-worker has never been disciplined for his actions, including, sendig pornographic information to others in the office on government computers. The “Good Ole Boy” network at its worst.
– submitted by Michael J. Riselli
Tarquini v. New Dimensions Inc., No CL 80592 (Circuit Court of Prince William County, VA).
Thank you to each of you who graciously provided advice, affidavits and assistance with the fee petition I filed in state court arising from damages under the Equal Pay Act. There were two counts in the complaint - breach of contract and EPA. The damages awarded after trial were $33,985.53 for the contract claim and $13,734.08 for the EPA (comp and liquidated). On January 9, 2012, the court awarded $116,000.00 in fees and $8,500 in costs.
– submitted by Marni E. Byrum
Robert Lee Greene v. Department of Homeland Security, No. AT-0752-10-1029-A-1 (MSPB Atlanta Regional Office Jan. 25, 2012).
I am thrilled to report that we won full fees (except $43.25 in costs) at Laffey Rates before the Merit Systems Protection Board. Thanks to Tracy Gonos for writing an outstanding and successful fee petition.
In this case, Administrative Judge Brian Bolen awarded the Appellant attorney fees of $79,566.46 and costs of $2,037.66, totaling $81,604.12. The only cost which was disallowed was photocopying expenses for $43.25. Elaine Fitch and Kalijarvi, Chuzi, Newman and Fitch, P.C. represented the Appellant.
– submitted by Elaine Fitch
Adkins v. FDIC, EEOC Appeal No. 0720080052 (OFO Jan. 13, 2012).
I am happy to report a major win at the EEOC's Office of Federal Operations (OFO). In this case, the OFO upheld the administrative judge's grant of default judgment against the Federal Deposit Insurance Corporation (FDIC), and an award of fees. This case has a very long history, dating back to our client's non-selections in 1999 and 2000. The administrative judge awarded default judgment against the agency because, among other things, the agency: failed to timely investigate the complaint, failed to provide the Report of Investigation to the client, failed to provide the Report of Investigation to the administrative judge when ordered, sua sponte decided that the administrative judge did not have jurisdiction, claiming a mixed case divested the EEOC of jurisdiction, and issuing a Final Agency Decision on its own.
The agency appealed the administrative judge's decision in 2008, an appeal has been pending at the OFO all this time. Finally, in a lengthy decision, the OFO sustained the judge's grant of summary judgment against the agency and the award of fees. As remedies, the agency is required to, among other things : 1) offer a position to the client; 2) provide back pay and benefits, with interest, to the date of non-selection - 1999!!; 3) fees and costs associated with the appeal.
This case is also notable because it clearly reasserts the viability of the "firmly enmeshed" doctrine whereby the EEOC can retain jurisdiction of adverse actions in "mixed cases."
– submitted by Joseph V. Kaplan
John Dause v. Broadway Services Inc., No. 1:11-cv- 03136 (D. Md.).
“A candidate for a security guard position who had his job offer pulled because he has sight in only one eye has settled his discrimination case against the company for $40,000.
John Dause, 60, of Henderson, N.C., accepted the $40,000 settlement on Jan. 3 before the case headed to trial in U.S. District Court in Baltimore. The settlement did not include a job offer.
Dause filed the lawsuit on Nov. 2 against Broadway Services Inc. of Baltimore, claiming discrimination under the Americans with Disabilities Act. Dause, who lost vision in his right eye at the age of 10, claimed he told the company of his disability before it offered him the job and placed him in a training class. After he had passed the training course and vision exam, he claimed, the company told him his eyesight did not meet the company's standards for employment.”
– Ben Mook, “Would-be Security Guard Settles ADA suit,” Daily News Record, Feb. 12, 2012.
This article describes the successful conclusion to an ADA case brought by Gary M. Gilbert & Associates and Brown, Goldstein & Levy. Our client has monocular vision and was illegally fired from his security guard job after passing company physicals and receiving training.
– Danny Katz
“Advanced Employment Law and Litigation – 2012: 24th Annual ALI-ABA Course of Study,” featuring a Live Mock Jury Demonstration, ThursdaySaturday, March 22-24, 2012,Washington Plaza Hotel, 10 Thomas Circle, N.W.,Washington, D.C.
MWELA members Bob Fitzpatrick, Bruce Fredrickson, Rick Salzman, Jenny Yang and Debra Katz are on the faculty (along with Peggy Mastroianni, who is always outstanding). Bruce will be doing a mock jury demonstration with Tina Kearns (of Pillsbury Winthrop Shaw Pittman), presided over by Magistrate Judge John Facciola.
The case to be argued is a disability discrimination/FMLA case where the terminated employee had Parkinson's disease and requested the reasonable accommodations of flexible hours, an ability to work from home when needed, and the like. He was subsequently fired in a RIF.
Judge Facciola will also be doing a segment on electronic discovery issues that is invaluable. There will also be a new panel on legal issues that arise as a result of social networking that is new to this CLE program.
For more information, go to: http://www.aliaba.org/ct033.
I am pleased to report two wins in January 2012, one in a federal employee EEOC case that was heard by Administrative Judge Palmer over 2 ½ years ago, and the other in the Prince George’s County Personnel Board. The federal employee case involved retaliatory non-selection for a GS-13 position and an unending detail to a clerical position where the AJ ordered a promotion with 4 ½ years of back pay, benefits, and interest, an end to the detail, and a modest $15,000 in compensatory damages. The PGPB case involved a reduction-in-force we had challenged as improper where the Board ruled for the County, we got it reversed in court, and won on remand. The client is entitled to reinstatement with back pay and benefits. If only all weeks were like this one.
– submitted by Jerry R. Goldstein