EEOC HEARING VICTORY

Natalie Koss, Esq., Wins Award & Reinstatement for Federal Employee

Attorney Natalie Koss recently represented a federal agency branch chief, who is referred to as the complainant in this case, in a discrimination hearing and secured an important victory from the Equal Employment Opportunity Commission (“EEOC”).

Ms. Koss’s client experienced significant sex discrimination at the federal agency where she worked. After receiving her complaint for discrimination from the EEOC, the agency retaliated against her by suspending her. This act constituted further discrimination against the employee in the form of reprisal for engaging in federally protected Equal Employment Opportunity (“EEO”) activity.

The agency’s actions derailed the employee’s federal government career. Her only hope was to pursue justice.

She retained Natalie Koss, and together, they fought a years-long battle until an EEOC judge found in favor of the employee. The award included backpay, pre-judgment interest, instatement to an equivalent position and compensatory damages for emotional distress and medical costs.

The agency’s discriminatory acts were unlawful, and the judge ordered the agency to consider disciplinary actions for the employees responsible for the discrimination.

EMPLOYMENT PROTECTIONS FOR FEDERAL EMPLOYEES

Federal law prohibits workplace discrimination in the public and private sectors. Title VII of the Civil Rights Act of 1964 protects employees and job applicants from employment discrimination based on race, color, religion, sex, and national origin. Title VII covers all employment decisions, from recruitment to termination. Title VII also protects employees from reprisal on the basis of engaging in protected activity, such as filing an internal agency EEO complaint.

FACTS OF THE CASE

In this case, the employee was a female supervisor and management official who led a team of male employees at a federal agency. Some of her subordinates objected to having a female supervisor and responded with sexist, discriminatory and threatening comments when asked to perform their jobs. These individuals would respond to instruction from their female supervisor by making comments such as, “You’re not my wife. You’re not my mother.”

This harassment on the basis of the complainant’s sex soon escalated. A group of subordinates conspired to make false allegations of sexual harassment against her. The allegations were incredible and defamatory, and the subordinates initiated these actions to remove her from the branch chief position. She sought guidance from her supervisor, but she didn’t receive any assistance. Instead, the Office of Inspector General (“OIG”) investigated the subordinate’s false allegations.

Incredibly, the OIG report blamed the complainant for violating the agency’s harassment policy. The agency charged her with conduct unbecoming a federal supervisor and failure to follow instructions.

The report’s findings were clear. The OIG and the agency had taken the side of the men making false allegations of sexual harassment. No one at the OIG nor the agency realized that these incredible allegations were themselves a form of harassment on the basis of the complainant’s sex.

Ms. Koss recognized that these allegations were designed to remove her client from her supervisory position and end her career. In fact, the agency did that. It soon reassigned the complainant to a nonsupervisory position and proposed a suspension.

THE AGENCY TREATED WOMEN DIFFERENTLY THAN MEN

During discovery in this case, Ms. Koss uncovered the agency’s history of treating women differently than men, especially during complaint investigation and disciplinary proceedings.

Notably, the agency had previously investigated an incident in which a male supervisor had not selected a female job applicant because the candidate was pregnant. The male supervisor was counseled, but since this was his first warning, he was not suspended.

In the case of Ms. Koss’s client, the agency acted differently. It suspended the female employee – based on claims lacking any credibility – without so much as a warning. This disparate treatment toward the employee and her male counterpart was clear evidence of discrimination on the basis of sex.

Around the same time as the agency was investigating Ms. Koss’s client, a male supervisor was accused of having an inappropriate relationship with an agency employee. The agency largely ignored this accusation of sexual harassment against this male supervisor but continued to zealously investigate alleged false claims against Ms. Koss’s client.

Moreover, soon after the complainant was disciplined for “conduct unbecoming a federal supervisor and failure to follow instructions,” the agency posted a job opening for which she was highly qualified based on her supervisory and practical experience. Nevertheless, the hiring official selected a male candidate who was far less qualified for the position, having had little relevant practical and nearly no supervisory experience.

EEOC COMPLAINT & APPLICABLE LAW

Ms. Koss’s client filed a charge with the EEOC alleging sex discrimination and reprisal for engaging in protected EEO activity when she was disciplined for alleged sexual harassment. She later amended her complaint to include an allegation of sex discrimination regarding her nonselection to the supervisory position.

Pursuant to McDonnell Douglas v. Green and its progeny, an allegation of sex discrimination in violation of Title VII must be analyzed through a three-step burden-shifting framework. First, the employee must establish a prima facie case of sex discrimination by proving that (1) she is a member of a statutorily protected class, and (2) she was treated differently with respect to some condition of employment from others outside her protected group. 411 U.S. 792 (1973); see also Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981). The burden then shifts to the employer to rebut the presumption of discrimination by “articulating some legitimate, nondiscriminatory reason” for the adverse employment action. Id. Finally, the burden shifts back to the employee-plaintiff to demonstrate that the employer’s proffered reason is merely a pretext for discriminatory behavior. Id.

The McDonnell Douglas burden shifting framework also applies in cases of reprisal. To establish a prima facie case of reprisal, an employee-plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware of the protected activity; (3) she was subsequently subjected to adverse treatment by her employer; and (4) a nexus exists between the protected activity and the adverse treatment. McDonnell Douglas, 411 U.S. 792; see also Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

CLAIM: SEX DISCRIMINATION & REPRISAL REGARDING COMPLAINANT’S SUSPENSION

The judge found that Ms. Koss’s client easily established a prima facie case of sex discrimination regarding the suspension because (1) she belongs to a protected class (female); and (2) she suffered an adverse action in that she was suspended for conduct unbecoming a federal supervisor and failure to follow instructions. The judge also noted that two other individuals, both men, were investigated for conduct unbecoming a federal supervisor in the same year as Ms. Koss’s client, but that the deciding official in both cases did not sufficiently investigate those claims.

Furthermore, because her accusers were motivated in part by sex discrimination, and the deciding official was aware of their motivations when he suspended her, this disciplinary action was discriminatory on the basis of sex.

The employee also established a prima facie case of reprisal for prior EEO activity. She had alerted her supervisor to, and filed an EEO complaint concerning, her staff’s discriminatory and sexist comments, which constituted protected activity. The agency subsequently penalized her for taking this action against the employees who discriminated against her when the deciding official proposed a suspension.

Notably, the deciding official was aware of her EEO counseling when he refused to take part in alternative dispute resolution regarding the complaint. The judge found that there was sufficient proximity in time to demonstrate causation.

The agency asserted that the legitimate nondiscriminatory reasons for the suspension were her conduct unbecoming a federal supervisor and failure to follow instructions. The agency investigators relied on the possibility of misconduct, as opposed to an outright admission.

Nevertheless, the judge found that the employee established by a preponderance of the evidence that her suspension was motivated by sex discrimination and reprisal. The judge noted in his opinion that the agency investigators’ failures to consider the sex-based discriminatory motives of the subordinates was itself sex discrimination. The judge concluded that if the deciding official had considered the motives of the accusers, the official would have reached a different decision.

The judge also found the failure to consider the discriminatory motives an act of reprisal for engaging in protected activity. The judge noted that the employee had filed an EEO action just a month before she was suspended and that “Complainant’s EEO activity was continuous throughout the [OIG] investigation.” Accordingly, the agency had penalized the employee for seeking to protect her right to employment free from discriminatory animus, which constituted reprisal on the part of the agency.

CLAIM: SEX DISCRIMINATION REGARDING EMPLOYEE’S NONSELECTION

The judge found that the employee easily established a prima facie case of sex discrimination regarding her nonselection: (1) she is a member of a statutorily protected class (female), and (2) she was treated differently with respect to her nonselection from the candidate ultimately chosen, who was male.

In response, the agency argued that she was not the most qualified candidate for the position. The agency stated that the hiring official selected the best-qualified candidate based on the proper criteria: (1) the applicant’s knowledge concerning technical aspects of the position, (2) good working relationships with regional offices, and (3) leadership skills. The official admitted to having only glanced at her resume, which indicated that he did not give her the same consideration that he provided to other candidates.

The judge found that the agency’s argument was pretextual and that the agency passed her over for the position due to her sex. The judge noted that, under the three criteria the agency provided, her qualifications were “plainly superior” to those of the selected candidate.

Accordingly, the agency’s argument that the determination was impartial was clearly pretextual. The judge found that the selecting official’s proffered reasons were not credible, as no reasonable person would have chosen the selected candidate as complainant had vastly superior qualifications. The judge, therefore, concluded that sex discrimination was the reason for nonselection.

DAMAGES & AWARD

During a seven-day hearing, Ms. Koss successfully proved her client’s claims of sex discrimination and reprisal. The judge ordered that the agency pay nonpecuniary damages and awarded further pecuniary and future pecuniary damages.

Further, since her suspension was found to be motivated in part by sex discrimination, the judge awarded back pay for part of the suspension, including prejudgment interest on the back pay award.

Additionally, as she demonstrated that the agency had discriminated against her regarding the nonselection, the agency was ordered to offer the employee the same or a substantially equivalent supervisory position.

The judge also ordered that the agency provide the complainant’s supervisors a total of four hours of EEO training regarding prohibitions against discrimination on the bases of sex and reprisal for prior EEO activity when it suspended her for five days.

The agency was also ordered to provide to the selecting official, who discriminated against complainant by failing to select her for a branch chief position, four hours of EEO training regarding sex discrimination regarding selection for supervisory positions.

The judge ordered the agency to consider disciplinary action against the employees involved in the original suspension. If the agency chooses not to take such disciplinary action, it must identify the reasons for that decision and report them to the judge. Finally, the judge ordered the agency to post copies of an EEO notice for ninety days.

EEOC HEARING VICTORY

Achieving this victory was the result of a long endeavor that spanned several years. The agency maintained an obstructive “Stalingrad” defense throughout the entire course of litigation. An unusual number of motions were required, and the agency regularly resisted Ms. Koss’s discovery requests. Given the complexity of the case, the judge required a seven-day hearing and substantial post-hearing briefings.

The entire matter resulted in burdensome stress, worry and expense for Ms. Koss’s client.

The EEOC, however, ruled in the employee’s favor, and she is due her award and has the legal right to return in a branch chief or supervisory position.

In this matter, Ms. Koss and her client persisted and never retreated in any battle with the agency, whether during discovery or during the hearing. The complainant succeeded in her discrimination claims against the federal agency.