Doug Hartnett, '97, Wins Federal District for DC Employment Law Case
Wednesday, June 29, 2016
Posted by: Joe Libertelli
Congratulations to Doug Hartnett, '97 for his victory in U.S. District Court for DC for a Title VII plaintiff. The plaintiff had filed an EEO complaint against her boss and gone to hearing where she lost. The ALJ found her testimony incredible. A year and a half after that testimony, she was fired by her federal agency explicitly for the content of that testimony. The Agency claimed she lied, and therefore violated candor policy and that the firing was not for her EEO claim itself, but was based on their reasonable belief that she lied in her EEO testimony.
Federal Judge Randolph Moss wasn’t buying it. After surveying the split in the Circuits on the issue, he held for the first time in this Circuit, that testimony in an EEO proceeding is absolutely protected activity (while maintaining the distinction between participation and opposition clauses of retaliation provision). An employer’s belief, even if reasonable, that an employee made false accusations in an EEO proceeding cannot be used as a reason for termination. I knida already thought that, but it has only now been decided here. So, the DC Circuit is now (should this decision stand) in line with the 5th Circuit, which is the strongest for our clients on this issue.
The case is Egei v. Johnson, DHS, 1:15-cv-00434 (RDM) below is an even better summary by a Alan Kabat, a colleague in the Employment Bar:
Can an agency (or private sector employer) terminate an employee because it believes or knows that the employee lied during the EEO process? Surprisingly, the courts are split on this issue, and today Judge Moss (D.D.C.) issued an interesting decision agreeing with the Fourth and Fifth Circuits that being terminated for allegedly lying in the EEO process can form the basis for a Title VII retaliation claim. The Seventh Circuit holds to the contrary, and the Eighth Circuit has gone both ways.
This decision should be of wider significance in discussing the broad scope of Title VII's participation clause.
Some excerpts follow:
Egei v. Johnson (Secretary, Homeland Security), No. 15-cv-0434 (D.D.C. June 24, 2016).
This Title VII retaliation action turns on whether an employer may lawfully fire an employee for making false or malicious accusations during the course of Equal Employment Opportunity ("EEO") proceedings. The plaintiff, Ominoba Egei, alleged in 2009 that she had been sexually harassed by a supervisor while working at the Federal Emergency Management Agency ("FEMA"). When Egei brought an administrative complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., she submitted written and oral testimony under oath making the same allegations. The administrative law judge found that Egei's allegations were not credible, and rejected her claim. A year and a half later, FEMA terminated Egei's employment on the ground that she had lied in the course of the EEO proceeding that she had initiated in 2009. Egei then brought a second EEO complaint, and now this action, alleging that her termination was retaliatory.
The case is now before the Court on FEMA's motion to dismiss or, in the alternative, for summary judgment. Dkt. 9. Because the Court concludes that Title VII's participation clause protects an employee from adverse employment action taken on the basis of the substance of her testimony in a Title VII EEO proceeding, it will deny FEMA's motion and will grant partial summary judgment--limited to the question of liability--to Egei. The question of remedy, however, remains, and will require further proceedings. . . .
. . . . Egei filed a formal complaint against FEMA under Title VII of the Civil Rights Act of 1964. See Dkt. 9-13 at 1 (Def.'s Mot. Summ. J., Ex. J). Egei alleged that she had been subjected to discrimination on the basis of her sex and national origin--and specifically that she had been harassed by Fequiere and then terminated because she refused to have sex with him. Id. at 1-2. Egei requested a formal hearing on her complaint before an Equal Employment Opportunity Commission ("EEOC") administrative law judge ("ALJ"), and the EEOC held such a hearing on July 27, 2010. See Dkt. 9-5 (Hr'g Tr.).
At the hearing, Egei's testimony regarding the incident differed in several ways from the account she had previously provided. Most significantly, although Egei had stated in her formal complaint and in response to interrogatories that Fequiere had attempted to have sex with her on October 17, 2008, FEMA's counsel impeached her with a government travel voucher showing that she had picked up a rental car from the airport that evening during the timeframe in which she alleged she was with Fequiere. See id. at 120-23 (Hr'g Tr. 119-22). Egei's testimony also varied from her prior statements in other ways. Although she had stated during a deposition that Fequiere had walked out of his hotel bathroom naked, she testified at the hearing that Fequiere had in fact been "half naked." See id. at 92-93 (Hr'g Tr. 92-93). And although Egei had not previously made allegations about Fequiere's conduct before October 16, she testified during the hearing that Fequiere had made sexual advances as early as October 6 or 7. Id. at 28-29 (Hr'g Tr. 28-29).
FEMA's counsel argued that these discrepancies, taken together, established that Egei had "willfully mis[led] the [C]ommission with false testimony," and requested "sanctions from the EEOC for this fraud." Id. at 20 (Hr'g Tr. 20) (opening statement); see also id. at 123 (Hr'g Tr. 122); id. at 321-22 (Hr'g Tr. 320) (closing statement) ("What this case comes down to is a complete fabrication."). Although the ALJ did not grant FEMA's request for sanctions, she did deny Egei's complaint in a 12-page decision on September 1, 2010. See Dkt. 9-4 (ALJ Decision). The ALJ relied substantially on the discrepancies between the testimony Egei presented at the hearing and her prior statements. See id. at 7-9. She reasoned that FEMA's documentary evidence was "very powerful," adding that "[a]s soon as [Egei] was aware of the evidence she changed her testimony." Id. at 8. She also reasoned that "the timing of the report of the incident" suggested that Egei might have raised the charges in order to keep her job. Id. at 9.
The ALJ's decision ended with three "conclusions of law": (1) Egei "did not show prima facie cases of national origin, race, sex, or sexual harassment"; (2) the government "showed that the alleged events did not occur"; and that (3) Egei "did not show that any of the alleged events occurred because of prohibited reasons." Id. at 10. FEMA issued a final decision on September 15, 2010, adopting the ALJ's decision in full. See Dkt. 9-15 at 1-2 (Def.'s Mot. Summ. J., Ex. L). Egei did not appeal that decision to the EEOC. . . .
. . . . Egei's argument is straightforward. She contends that she was terminated on the basis of her 2008 EEO charge and the testimony she provided in its support. Because Title VII prohibits an employer from taking adverse employment action "because [an employee] has made a charge [or] testified" in an EEO proceeding, she argues, FEMA has violated Title VII. FEMA advances a different understanding of the antiretaliation provision. The agency argues that it did not terminate Egei because she "made a charge" or "testified" in an EEO proceeding; it terminated her because she lied during that EEO proceeding. In FEMA's view, although an employer may not terminate or discipline an employee on the basis of her participation in EEO proceedings, it may terminate or discipline her for making false or malicious statements in the course of those proceedings. Because Title VII does not bar an employer "from taking action where an employee flagrantly abuses the EEO process . . . by concocting a malicious, false story," FEMA argues, Dkt. 19 at 1, it did not violate Title VII when it fired Egei in 2012.
FEMA makes a number of variants on this argument. See Dkt. 9-1 at 18-24 (arguing that the facts and circumstances surrounding Egei's termination defeat any inference that it fired her on the basis of her participation in EEO proceedings rather than the accusations she made during those proceedings); id. at 24-25 (arguing that, even if Egei's accusations were not false, FEMA honestly and reasonably believed that they were). But they all turn on a single question of law: May an employer lawfully terminate an employee on the basis of false or malicious statements made during EEO proceedings? This question has divided the courts of appeals. Compare, e.g., Glover v. S.C. Law Enf't Div., 170 F.3d 411, 414-15 (4th Cir. 1999) (holding that an employee may not be terminated on the basis of statements made during an EEO proceeding), and Pettway v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969) (same), with Mattson v. Caterpillar, Inc., 359 F.3d 885, 890-91 (7th Cir. 2004) (holding that she may be). The D.C. Circuit has not resolved the issue, but has observed in dicta that "[t]he participation clause speaks in clear, absolute terms, and has accordingly been interpreted as shielding recourse to the EEOC, regardless of the ultimate resolution of the underlying claim on its merits." See Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981) (emphasis added).
For the reasons set out below, the Court concludes, consistent with this dicta and with the majority of courts to have considered the question, that Title VII protects a claimant who is later terminated on the basis of the substance of testimony or claims she makes in the course of Title VII EEO proceedings. Because FEMA concedes that Egei was terminated on the basis of such statements, the Court will deny FEMA's motion for summary judgment and will instead enter partial summary judgment, limited to the question of liability, for Egei. . . .