Bernabei & Wachtel Blog

Airplane pilot fired for putting safety first

We are prosecuting an AIR21 complaint with OSHA against Metropolitan Aviation, LLC on behalf of a corporate pilot.  AIR21 is also known as the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century. AIR21 protects pilots and other aviation workers from retaliation when they oppose violation of Federal Aviation Administration rules.

Our client was fired after the plane on which he was flying 4 passengers developed an apparent depressurization.  He put on an oxygen mask.  He heard a loud bang and the rear bay overheat light came on, indicating a possible fire in the tail compartment.  He made an emergency landing. Then he refused to fly the plane back to Manassas, VIrginia for repairs by the company's mechanics.  And then, he was fired.

Channel 9, WUSA, in Washington DC presented a two part story on this case and other problems at Metropolitan Aviation.

To watch Part 1 of the story, click.

D.C. Circuit, retaliation claim arising from security investigation

In a partial victory and partial reversal for a federal employee who had prevailed at trial, the D.C. Circuit, in a divided opinion, addresses several issues that arise when “security issues” allegedly are relevant to the determination of an employment discrimination dispute.

The plaintiff was an FBI agent who was assigned to the US Embassy in Riyadh (Saudi Arabia), and he had converted to Islam. His supervisor initiated a bogus investigation against him, and the allegations were determined to be unfounded. He brought a Title VII retaliation claim based on the bogus investigation which he alleged was only brought on the basis of his race, and the jury found in his favor. In the district court, the case was assigned to Judge Huvelle and Magistrate Judge Facciola.

On the government’s appeal, the D.C. Circuit agreed with the government that the verdict had to be set aside, because the evidence as presented improperly allowed the jury to second-guess the security decisions made by the FBI.

However, the majority opinion did allow the plaintiff to pursue his retaliation claims based on a narrower evidentiary approach, i.e., without getting into “unreviewable security decisions.” Judge Kavanaugh’s dissent argues that under the Supreme Court’s Egan decision, even that would still be improper.

Some excerpts from the majority and dissenting opinions follow.

http://www.cadc.uscourts.gov/internet/opinions.nsf/9A218B2612DCA6F1852578A4004DCCFB/$file/10-5014-1311333.pdf

Rattigan v. Holder, No. 10-5014 (D.C. Cir. June 3, 2011)

Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-02009)

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Assistant Director. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Jonathan C. Moore argued the cause for appellee. With him on the brief was James R. Klimaski.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge:

In this case, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964 by launching a security investigation of plaintiff, then an agent in its Saudi Arabia office, in retaliation for his filing of a discrimination complaint. On appeal, the government argues that plaintiff’s claim is nonjusticiable under Supreme Court and D.C. Circuit case law because adjudicating Title VII liability called for the jury to second-guess security judgments committed by law to FBI discretion. Because we agree that plaintiff’s case, as presented to the jury, invited just such second-guessing, we vacate the judgment in plaintiff’s favor. But because we also believe that plaintiff might be able to pursue his retaliation claim without calling into question unreviewable security decisions, we remand for further proceedings consistent with this opinion. . . .

. . . Rattigan filed suit in 2004, raising several claims of unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a series of rulings, the district court dismissed or granted summary judgment to the government as to all claims save one: Rattigan’s contention that the FBI retaliated against him “for complaining that OIO officials had discriminated against him on the basis of his race and national origin” by subjecting him to a security clearance investigation. See Rattigan v. Holder (“Rattigan II”), 636 F. Supp. 2d 89, 90 (D.D.C. 2009) (summarizing this procedural history). On the eve of trial, the government filed a motion to dismiss, arguing for the first time that Rattigan’s retaliation claim was nonjusticiable because, according to the government, it would require the jury to second-guess national security judgments committed by law to FBI discretion. The district court denied the motion. See id. at 91, 95. Following trial, the jury returned a verdict for Rattigan, and the district court denied the government’s post-trial motions.

The government now appeals, focusing primarily on its argument that Rattigan’s Title VII claim is nonjusticiable. . . .

. . . . In contrast to the claims raised in Ryan, Bennett, and Egan itself, Rattigan’s claim implicates neither the denial nor revocation of his security clearance nor the loss of employment resulting from such action. After all, the FBI left Rattigan’s clearance in place and he remains employed by that agency. Instead, Rattigan argues that his OIO supervisors referred him for a security investigation in order to retaliate against him because he filed Title VII claims and that this referral set in motion a several month long investigation by the FBI’s Security Division that caused him serious emotional distress and damaged his reputation. For that reason, the precise issue presented by this case is one of first impression. . . .

. . . . Based on the foregoing, the government would have us not only set aside the verdict but also order the case dismissed. But given our conclusion that challenges to OIO referral decisions fall outside Egan, and given that, as we shall explain, the OIO referral itself can qualify as a materially adverse action under Title VII, Rattigan’s case can proceed so long as the jury is not put in the position of second-guessing the Security Division. Dismissing the complaint is thus unwarranted because it would deprive Rattigan of his cause of action due to evidentiary rulings and jury instructions we have now concluded were flawed. See, e.g., United States v. Science Applications Int’l Corp., 626 F.3d 1257, 1261 (D.C. Cir. 2010) (vacating the judgment and remanding for a new trial because flawed jury instruction misstated the standard for scienter under the False Claims Act).

We begin with the question of whether the OIO referral can qualify as a materially adverse action under Title VII. As the Supreme Court recently explained, Title VII’s retaliation provision “cover[s] a broad range of employer conduct” that extends beyond the statute’s substantive antidiscrimination provision. Thompson v. N. Am. Stainless, LP, __U.S.__, 131 S. Ct. 863, 868 (2011); see also Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (holding that the federal government faces the same standards of liability for retaliation under Title VII as a private employer). In the retaliation context, a materially adverse action is one that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal quotation marks omitted). Whether a particular adverse action satisfies the materiality threshold is generally a jury question, with our role limited to determining whether, viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find the action materially adverse. See Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir. 2010) (explaining, in the context of claim that reassignment of duties was materially adverse, that “whether a particular reassignment of duties constitutes an adverse action is generally a jury question” (internal quotation marks and alterations omitted)).

Viewing the evidence in this case in the light most favorable to Rattigan, we have no doubt that a reasonable jury could find that OIO’s security referral itself might “well dissuade a reasonable worker from making or supporting a charge of discrimination.” White, 548 U.S. at 57. The referral alone created the very real possibility not only that Rattigan would face a stressful and potentially reputation-damaging investigation, but also that the FBI would revoke his security clearance and terminate his employment. See, e.g., Trial Tr. at 82 (July 27, 2009) (testimony of Michael Pyszczymuka) (acknowledging that being the subject of a security investigation could harm an FBI agent’s career); Trial Tr. at 53–54 (July 22, 2009) (testimony of Cheryl Tucker) (recognizing the career-damaging effect a security investigation could have for an agent like Rattigan who was involved in the FBI’s sensitive and important inquiry into the September 11 attacks). In our view, a reasonable jury could conclude that these ominous prospects are more than sufficient to deter a reasonable employee from filing a discrimination complaint. See Porter v. Shah, 606 F.3d 809, 818 (D.C. Cir. 2010) . . . .

. . . . Moreover, this conclusion depends not at all on the actions that the Security Division takes: the possible negative repercussions of an OIO referral could deter an employee from filing a complaint even though OIO has no control over whether the Security Division undertakes an investigation or ultimately decides to revoke a security clearance. The situation is to some extent analogous to the filing of a criminal complaint for retaliatory purposes, which may qualify as a materially adverse action under Title VII. See White, 548 U.S. at 64 (favorably citing a Tenth Circuit decision “finding actionable retaliation where employer filed false criminal charges against former employee who complained about discrimination” (citing Berry v. Stevinson Chevrolet, 74 F.3d 980, 984 (10th Cir. 1996))); see also Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (noting that “the Supreme Court [has] indicated that a false report to government authorities can constitute retaliation,” and accordingly finding actionable the filing of a false report to the D.C. Office of Unemployment Compensation contesting the employee’s unemployment benefits). . . .

. . . . Thus, although Title VII challenges to security referrals could in some circumstances invite the jury to question Security Division judgments about the seriousness of security concerns, that is far from inevitable. Ultimately, it falls to the district court to guard against this risk of violating Egan. To do so, the district court could, for example, instruct the jury to assume that the reasons the Division gave for commencing an investigation—provided those reasons did not rest on false or misleading allegations—fully justified undertaking the investigation. We recognize that limitations required to ensure compliance with Egan may make it impossible for some plaintiffs to mount evidence sufficient to allow a reasonable jury to believe retaliation had occurred. In such cases, the district court will need to enter judgment for the government. Cf. In re Sealed Case, 494 F.3d 139, 144–45 (D.C. Cir. 2007) (recognizing in state secrets context that where plaintiff is unable to establish prima facie case without the use of privileged information, lack of evidence requires dismissal).

Here, whether Rattigan has adduced sufficient evidence for his claim to proceed without running into Egan is a question we leave in the district court’s able hands. Having presided over the trial and several years of motions practice, the district court is in the best position to decide whether, given the record and any cautionary instructions and evidentiary rulings it believes necessary, Rattigan’s case can go forward without putting the jury in the position of second-guessing the Security Division. See Jones, 557 F.3d at 681 (“Given the state of the record and the factual intricacies intertwined with [plaintiff’s] allegations, we are unwilling to delve into questions that the district court did not address.” (internal quotation marks and alterations omitted)).

KAVANAUGH, Circuit Judge, dissenting:

In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court held that the Navy’s decision to deny Egan a security clearance could not be reviewed in the course of his personnel action against the Navy. Justice Blackmun’s opinion for the Court reasoned that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Id. at 529. The Egan Court thus precluded agency employees such as Egan from pursuing personnel actions against their agency employers when doing so would entail second-guessing the agency’s security clearance decision. The Court recognized that Congress could override the presumption of unreviewability that attached to security clearance decisions, but it said that Congress had not done so with respect to personnel suits like Egan’s. See id. at 530.

The majority opinion here, however, reads Egan more narrowly. Under the majority opinion, security clearance decisions are committed not “to the broad discretion of the agency responsible,” id. at 529, but only to some agency employees who possess the “requisite training and expertise.” Maj. Op. at 15. Under the majority opinion’s scheme, courts may not review the decisions of agency employees who initiate investigations or grant, deny, or revoke clearances, but courts may review the decisions of agency employees who report security risks. The majority opinion’s slicing and dicing of the security clearance process into reviewable and unreviewable portions is nowhere to be found in Egan, and does not reflect the essential role that the reporting of security risks plays in the maintenance of national security.

Defamation privilege under Maryland law

The Maryland Court of Appeals applied the judicial privilege to bar defamation complaints based on dissemination of a complaint, even before it is filed, or that is given to the press, provided that the statements are reasonably & rationally related to the proceedings. The decision has an extensive discussion of the various categories of the judicial privilege.

The court’s summary and the first 2 paragraphs of the opinion follow:

 http://mdcourts.gov/opinions/coa/2011/70a10.pdf

Stephen Norman v. Scott Borison, et al., No. 70, September Term, 2010 (Md. Apr. 22, 2011)

Torts – Defamation – Absolute Privilege – Lawyers who publish copies of their state complaint to the press, before it is filed in court; make oral statements to the press in connection thereto; and republish filed versions of their federal complaints on the Internet are protected by an absolute privilege where (1) the reasonably contemplated proceeding satisfies the two-part test in Gersh v. Ambrose, 291 Md. 188, 434 A.2d 547 (1981), (2) the lawyers make the statements, at least in part, to increase awareness of the proposed class action suit and, therefore, make them in "the course of the proceeding," and (3) the lawyers’ statements are related reasonably and rationally to the subject matter of the contemplated proceeding.

Opinion by Harrell, J.

Alexander Chaudhry ("Chaudhry"), Ali Farahpour ("Farahpour"), and Petitioner, Stephen Norman ("Norman"), owned equal shares in the Maryland-registered limited liability company, Sussex Title ("Sussex"). Respondents here, all lawyers, filed on behalf of their clients a proposed class action lawsuit against multiple defendants-companies, including Sussex, for their alleged participation in "the single largest mortgage scam in Maryland history . . . ." Respondents did not name Norman as a defendant in any version of their original or amended complaints in any court, although, in their second amended complaint in the federal court, Norman was mentioned by name in certain allegations. Norman claims that Respondents defamed him by republishing the pleadings (which contained allegedly defamatory statements) to the press and on the internet, and by making verbal comments to the press about the lawsuit.

For reasons to be explained, we hold that, on the circumstances of this case, an absolute privilege adheres to Respondents’ republication of the pleadings in the mortgage scam case, as well as to their public comments about that case. Thus, we affirm the judgment of the Court of Special Appeals, which, by its reported opinion, affirmed the trial court’s dismissal of Norman’s defamation action. See Norman v. Borison, 192 Md. App. 405, 994 A.2d 1019 (2010).

 

 

Fourth Circuit decision in First Amendment / academic freedom case

 Today, the Fourth Circuit reversed the district court’s dismissal of a promotion case brought by a faculty member at the University of North Carolina – Wilmington, where the plaintiff alleged that he was discriminated against on the basis of his religion and for his speech about religion and related issues. The plaintiff had a reputation for being very outspoken about religious topics and other issues, to the discomfort of some of his colleagues.

While the Fourth Circuit agreed that the plaintiff could not show a Title VII violation (since he could not prove that his religion was a "motivating factor" in defendants’ decision not to give him a promotion), the Fourth Circuit decisively rejected the defendants’ argument that the plaintiff’s articles and speeches on religious issues were excluded from First Amendment protection under the Supreme Court’s decision in Garcetti (the so-called duty speech exception). Here, the articles and speeches were not part of his job duties to teach the students, and did not become duty speech merely because, some time later, he used those articles and speeches as part of his promotion application.

Some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/101413.P.pdf

Adams v. Trustees of the University of North Carolina-Wilmington, No. 10-1413 (4th Cir. Apr. 6, 2011).

Affirmed in part, reversed in part, and remanded by published opinion. Judge Agee wrote the opinion, in which Chief Judge Traxler and Judge Niemeyer joined.

. . . . Citing Garcetti v. Ceballos, 547 U.S. 410 (2006), for the proposition that "when a public employee makes a statement pursuant to his ‘official duties,’ he does not ‘speak as a citizen,’" the district court observed that it "must focus not on the content of the speech but on the role the speaker occupied when he said it." (J.A. 1385.) The court then concluded that when Adams listed his columns, publications, and public appearances in his promotion application, he "implicit[ly] acknowledge[d] that they were expressions made pursuant to his professional duties—that he was acting as a faculty member when he said them." (J.A. 1385.) As a consequence, the district court concluded that Adams’ speech was not protected by the First Amendment because Adams’ "inclusion of the speech in his application for promotion trumped all earlier actions and marked his speech, at least for promotion purposes, as made pursuant to his official duties." (J.A. 1386.)

As we explain below, the district court misread Garcetti. The district court’s decision rests on several fundamental errors including its holding that protected speech was converted into unprotected speech based on its use after the fact. In addition, the district court applied Garcetti without acknowledging, let alone addressing, the clear language in that opinion that casts doubt on whether the Garcetti analysis applies in the academic context of a public university. See Garcetti, 547 U.S. at 425. Nor did the district court take into consideration the only Fourth Circuit case addressing a similar issue, Lee, 484 F.3d at 694 & n.11.

The district court’s initial error lies in its conclusion that Adams’ speech, which the Defendants agree was protected First Amendment speech when initially given, was converted into unprotected speech based on factors that came into play only after the protected speech was made. Although the district court framed the issue properly by noting it must focus "not on the content of the speech but on the role the speaker occupied when he said it," J.A. 1385, the court’s subsequent analysis ignores the role Adams occupied when he "spoke." Instead, the court’s basis for determining the First Amendment did not protect Adams’ speech was Adams’ subsequent inclusion of past protected speech as part of his promotion application. In effect, the district court held that Adams’ speech in his columns, books, and commentaries, although undoubtedly protected speech when given, was somehow transformed into unprotected speech because Dr. Cook and others read the same items from a different perspective long after Adams’ speech was uttered.

The district court cited no precedent for this determination, that protected speech can lose its First Amendment protected status based on a later reading of that speech. Although the Defendants understandably agree with the district court’s holding, they also provide no precedent for the phenomenon of converting protected speech to unprotected speech after the fact. Nor does the district court’s analysis find any support in Garcetti, which focused on the nature of the employee’s speech at the time it was made. See 547 U.S. at 421-22. Nothing about listing the speech on Adams’ promotion application changed Adams’ status when he spoke or the content of the speech when made. . . .

. . . . We are also persuaded that Garcetti would not apply in the academic context of a public university as represented by the facts of this case. Our conclusion is based on the clear reservation of the issue in Garcetti, Fourth Circuit precedent, and the aspect of scholarship and teaching reflected by Adams’ speech.

In Garcetti, the Supreme Court conducted a specific analysis associated with the first prong of the McVey test and the Pickering-Connick factors, to determine whether a public employee spoke as a citizen on a matter of public concern. The plaintiff, Ceballos, wrote a memorandum as part of his official duties as a deputy district attorney asserting various perceived inaccuracies in an affidavit used to obtain a search warrant in a pending criminal case. 547 U.S. 413-15. Ceballos’ employer, the county district attorney’s office, subsequently altered Ceballos’ duties, and Ceballos sued alleging retaliation based on his memo. Id. at 415. The Supreme Court determined that Ceballos’ claim failed because he was not speaking as a citizen when he wrote the memo. In so doing, the Court concluded, "[r]estricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Id. at 421-22. Accordingly, the Supreme Court held the First Amendment does not "protect[ ] a government employee from discipline based on speech made pursuant to the employee’s official duties." Id. at 413. . . .

. . . . There may be instances in which a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching. In that circumstance, Garcetti may apply to the specific instances of the faculty member’s speech carrying out those duties. However, that is clearly not the circumstance in the case at bar. Defendants agree Adams’ speech involves scholarship and teaching; indeed, as we discuss below, that is one of the reasons they say Garcetti should apply – because UNCW paid Adams to be a scholar and a teacher regardless of the setting for his work. But the scholarship and teaching in this case, Adams’ speech, was intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams’ assigned teaching duties at UNCW or any other terms of his employment found in the record. Defendants concede none of Adams’ speech was undertaken at the direction of UNCW, paid for by UNCW, or had any direct application to his UNCW duties.

Applying Garcetti to the academic work of a public university faculty member under the facts of this case could place beyond the reach of First Amendment protection many forms of public speech or service a professor engaged in during his employment. That would not appear to be what Garcetti intended, nor is it consistent with our long-standing recognition that no individual loses his ability to speak as a private citizen by virtue of public employment. In light of the above factors, we will not apply Garcetti to the circumstances of this case.

 

 

Fourth Circuit decision on Hostile Work Environment

 

On April 1, 2011, the Fourth Circuit issued an interesting and thorough decision in a hostile work environment case from North Carolina. The Fourth Circuit held that the district court improperly granted summary judgment on the hostile work environment claim, while affirming the dismissal of the remaining claims. There is useful language in this decision on the impropriety of summary judgment in hostile work environment cases, and a key paragraph follows:

"On appeal, Freightliner pursues a similar approach and undertakes to defend the district court’s summary judgment on the issue of severity/pervasiveness by cataloging some of the myriad cases that have come before this court and that involved behavior considerably more offensive and opprobrious than that shown here. While this tack is understandable, and assuming that other cases involve more heinous behavior in male dominated workplaces than that shown here, we have never held that a weak case is necessarily one that should be disposed of on summary judgment. The question at the summary judgment stage is not whether a jury is sure to find a verdict for the plaintiff; the question is whether a reasonable jury could rationally so find. Spillman, 925 F.2d at 95. On this record, we are satisfied that the answer to that query is "yes" and that it was error for the district court to rule to the contrary as a matter of law. We have never held that a grant of summary judgment in favor of a defendant is a legitimate substitute for a jury verdict in favor of a defendant, and we decline to do so here."

Hoyle v. Freightliner, LLC, No. 09-2024 (4th Cir. Apr. 4, 2011)

The decision is online at: http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/092024.P.pdf

Fourth Circuit decision on offers of judgment

The Fourth Circuit issued a useful decision, reversing the district court (in North Carolina), which had held that an offer of judgment in a FLSA wage/hour collective action case was a complete settlement of all the claims, so that the case had to be dismissed.

In contrast, the Fourth Circuit held that the offer of judgment lacked key terms or had improper provisions, since it (1) required the plaintiffs to respond within 5 days instead of 10 days; (2) required the plaintiffs to submit signed affidavits as to how much each was claiming, thereby making it a conditional offer of judgment; (3) required the plaintiffs to consent to entry of a dismissal, instead of entry of a judgment against the employer (as a judgment is enforceable in ways that a settlement is not); and (4) required that the settlement amount be kept confidential, but Rule 68 precludes confidential settlements.

Hence, the Fourth Circuit remanded to the district court to allow the plaintiffs to pursue their FLSA claims (or, perhaps, the employer will come up with an offer of judgment that complies with the requirements).

The decision is a useful reminder of the need to ensure that a Rule 68 offer of judgment does, in fact, include all components necessary to resolve a case in order for it to be enforceable, and to decide whether to accept such an offer.

Some excerpts follow:

Simmons, et al. v. United Mortgage & Loan Investment, LLC, et al., No. 09-2147 (4th Cir. Jan. 21, 2011).

http://pacer.ca4.uscourts.gov/opinion.pdf/092147.P.pdf

Argued: October 27, 2010

Decided: January 21, 2011

Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part; vacated and remanded in part by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Motz and Judge Keenan joined.

HAMILTON, Senior Circuit Judge:

The primary question presented in this appeal is whether the district court erred in holding that the contents of a particular letter from defense counsel to counsel for the plaintiffs, as clarified by a follow-up letter from defense counsel thirteen days later, rendered moot the plaintiffs’ claims for unpaid overtime wages in a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, such that a live case or controversy no longer existed with respect to such claims, requiring their dismissal for lack of subject matter jurisdiction. We answer this question in the affirmative, and therefore, vacate the district court’s dismissal of the plaintiffs’ FLSA claims and remand for further proceedings consistent with this opinion. . . .

. . . . Of significant relevance to the issues on appeal, counsel for the Defendants sent (via electronic mail, United States mail, and facsimile) a letter dated May 16, 2008, to counsel for the Named Plaintiffs. In the first sentence, counsel for the Defendants stated that he was "writ[ing] for the purpose of resolving this case for all parties." (J.A. 158). In the second sentence, he reported that his clients had authorized him, "without admitting legal liability or fault, to offer each opt-in plaintiff full relief in this case." Id. No specific mention was made regarding the Named Plaintiffs or an offer of judgment.

The balance of the letter stated as follows:

Each opt-in plaintiff will be compensated fully upon receipt of an affidavit stating the dates on which overtime was worked, the total hours they worked each week of their employment up to the date of their termination, the total amount of back pay they claim is owed to them, and a statement explaining how the calculation of overtime amounts claimed was done. My clients will also pay taxable costs and reasonable attorney’s fees supported by time records properly describing the work done and the hours reasonably worked which can be either agreed upon by the parties or submitted to the Court for resolution.

This offer requires that the parties enter a settlement agreement specifying that all claims will be waived and released, this action will be dismissed with prejudice, the settlement will be kept confidential and there will be no admission of liability or disclosure of the settlement terms. I will provide you with the information my client has that is necessary to prepare the affidavits.

This offer of full relief moots this case since there no longer remains any active case or controversy between the parties. This offer remains open for five days after receipt on May 23, 2008. Thereafter, if this offer is not accepted, I will file a motion to dismiss the case as moot.

In a letter dated May 29, 2008, responding to a May 23, 2008 letter by counsel for the Plaintiffs, counsel for the Defendants stated that the offer of settlement in the May 16, 2008 letter included liquidated damages and pertained to the Named Plaintiffs as well as all of the Opt-in Plaintiffs. Also on May 29, 2008, pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants moved to dismiss the entire case for lack of subject matter jurisdiction. According to the Defendants, the district court no longer possessed subject matter jurisdiction, because they "ha[d] offered to satisfy Plaintiffs’ claims in their entirety," leaving no "live case or controversy requiring litigation." (J.A. 123). . . .

. . . . On September 14, 2009, the district court granted Defendants’ motion to dismiss the Plaintiffs’ FLSA claims for lack of subject matter jurisdiction. In this regard, the district court determined that "Defendants[’] offer of judgment to all Plaintiffs and would-be opt-in Plaintiffs was for full relief, including attorney’s fees and taxable costs," (J.A. 225-26), and that "[c]oncern over the Defendants’ ability to ‘pick-off’ Plaintiffs has been allayed by the blanket nature of the offer of judgment. Both the actual Plaintiffs and would-be Plaintiffs have been offered relief in whole." (J.A. 226). . . .

. . . . Even when considering the clarifications made by the May 29, 2008 letter to the effect that the Defendants’ May 16, 2008 offer included liquidated damages under the FLSA and pertained to the Named Plaintiffs as well as the Opt-in Plaintiffs, we agree with the Plaintiffs that the May 16, 2008 letter did not constitute a Rule 68 offer of judgment. First, the May 16, 2008 letter provided for a five day window to accept the Defendants’ offer rather than a ten day window as provided by the applicable version of Rule 68. Second, rather than making an unconditional offer of judgment on specified terms, the letter conditioned the offer upon the Plaintiffs submitting affidavits stating "the dates on which overtime was worked, the total hours they worked each week of their employment up to the date of their termination, the total amount of back pay they claim is owed to them, and a statement explaining how the calculation of overtime amounts claimed was done." (J.A. 201). Third, rather than offer to have judgment entered against them as the district court found, the plain language of the letter offered only that the Defendants would "enter a settlement agreement specifying that all claims will be waived and released . . . ." Id. The district court’s finding that the May 16, 2008 letter offered for judgment to be entered against the Defendants was clearly erroneous. Fourth, in contrast to the public nature of an unsealed judgment entered pursuant to Rule 68, the May 16, 2008 letter required the Plaintiffs to keep the fact of settlement and the terms of the settlement confidential. See McCauley v. Trans Union, 402 F.3d 340, 342 (2d Cir. 2005) (plaintiff is not obligated to accept a Rule 68 offer of judgment conditioned on settlement being kept confidential and judgment under seal; party engaged in litigation is not entitled to confidentiality); 12 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3002 (2d ed. Supp. 2010) (offer of judgment requiring confidential settlement rather than court judgment seeks something not authorized by Rule 68).

While we agree with the Plaintiffs that the May 16, 2008 letter, as clarified by the May 29, 2008 letter, did not constitute a Rule 68 offer of judgment, such agreement does not mean an automatic win for the Plaintiffs. This is because the doctrine of mootness is constitutional in nature, and therefore, not constrained by the formalities of Rule 68. Nonetheless, for several reasons, we hold the Defendants’ settlement offer, as set forth in the May 16, 2008 letter and as clarified by the May 29, 2008 letter, did not render moot the Plaintiffs’ FLSA claims for overtime wages. The first reason is that the offer for "full relief in this case" did not offer for judgment to be entered against the Defendants, but rather only offered for the parties to enter into a settlement agreement. Had the Plaintiffs been allowed to litigate fully their FLSA claims and had they fully prevailed on such claims, the district court would have entered a judgment against the Defendants for full relief with respect to those claims. From the view of the Plaintiffs, a judgment in their favor is far preferable to a contractual promise by the Defendants in a settlement agreement to pay the same amount. This is because district courts have inherent power to compel defendants to satisfy judgments entered against them, Spallone v. U.S., 493 U.S. 265, 276 (1990); Grissom v. The Mills Corp., 549 F.3d 313, 319 (4th Cir. 2008), but lack the power to enforce the terms of a settlement agreement absent jurisdiction over a breach of contract action for failure to comply with the settlement agreement. As ably explained in the well respected treatise Federal Practice and Procedure:

Settlements often do not involve the entry of a judgment against the defendant, as compared to a judgment of dismissal, so that from the plaintiff’s perspective the willingness of the defendant to allow judgment to be entered has substantial importance since judgments are enforceable under the power of the court. Indeed, should a settlement not embodied in a judgment come unraveled, the court may be without jurisdiction to proceed in the case, which often becomes a breach of contract action for failure to comply with the settlement agreement. Even if the court retains jurisdiction, plaintiff is left to litigate a breach of contract action or, perhaps, to continue litigating the claims sought to be settled.

12 Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedure § 3002, p. 90 (2d ed. 1997) (footnote omitted).

D.C. Circuit decision on federal section class action cases

When a federal employee initiates the EEO process through the internal counseling, the agency sometimes claims that the employee failed to provide sufficient information about the alleged discrimination/retaliation at the outset, so that the employee did not adequately exhaust her administrative remedies at the outset. In Artis, et al. v. Bernanke, a group of secretaries at the Federal Reserve attempted to bring a class action based on race discrimination, alleging denials of promotion, lower salaries, less favorable work assignments, and other adverse employment actions. The Federal Reserve argued to the district court (J. Sullivan), that the plaintiffs failed to provide sufficient information in support of their class allegations during the counseling and other internal processes.

On appeal, the D.C. Circuit reversed, finding that at least some of the plaintiffs provided sufficient information about their own individual circumstances. Critically, the court held that it would be improper to require the plaintiffs to provide information about their class allegations at the outset, since that information requires a formal statistical analysis of employment data – information that is solely in the hands of the employer and can usually only be obtained through discovery after the initiation of formal legal process.

Some excerpts follow:

http://pacer.cadc.uscourts.gov/common/opinions/201101/09-5121-1287236.pdf

Artis v. Bernanke, No. 09-5121 (D.C. Cir. Jan. 11, 2011)

Appeal from the United States District Court for the District of Columbia

(No. 1:01-cv-00400)

Walter T. Charlton argued the cause and filed the briefs for appellants.

Kenneth M. Willner argued the cause for appellee. With him on the brief were Richard M. Ashton and Katherine H. Wheatley, Associate General Counsel, Board of Governors of the Federal Reserve System, and John L. Kuray, Senior Counsel. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: BROWN, GRIFFITH and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

Appellants are members of a putative class of secretaries employed currently and formerly by the Federal Reserve Board. They claim the Board systematically discriminated against them on account of their race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The district court dismissed the complaint for failure to exhaust administrative remedies. Because we conclude the secretaries completed informal counseling in a manner sufficient to give the Board an opportunity to investigate their claims, we vacate the district court’s dismissal of their complaint. . . .

. . . . The district court concluded the secretaries failed to satisfy this counseling requirement because they “declined to cooperate with the Board by failing to provide any meaningful information about specific instances of discrimination.” Artis, 474 F. Supp. 2d at 19. We disagree.

The purpose of EEO counseling is clear from the text of the regulation: Counseling is designed to enable the agency and its employee “to try to informally resolve the matter” before an administrative charge is filed. 12 C.F.R. § 268.104(a), quoted in Artis I, 158 F.3d at 1306; see Wilson, 79 F.3d at 165 (“The purpose of the [administrative exhaustion] doctrine is to afford the agency an opportunity to resolve the matter internally and to avoid unnecessarily burdening the courts.”); see also Blackmon-Malloy v. United States Capitol Police Bd., 575 F.3d 699, 711–12 (D.C. Cir. 2009) (“[U]nlike agency exhaustion in other contexts, the purposes of counseling and mediation are not to compile a record for judicial review but instead simply to afford the employee and the employing office an opportunity to explore and possibly resolve the employee’s claims informally.” (describing a similar counseling requirement in the Congressional Accountability Act)).

Where counseling produces “sufficient information to enable the agency to investigate the claim,” that purpose has been served. Artis I, 158 F.3d at 1306 (quoting Wilson, 79 F.3d at 164). Thus, we recognized that “where a complainant has pleaded a nonpromotion claim to the agency, it is not her responsibility to identify the positions for which she applied.” Id. at 1308 (citing Mangiapane v. Adams, 661 F.2d 1388 (D.C. Cir. 1981) (per curiam)). To hold otherwise would turn the informal counseling requirement into a trap for unwary counselees rather than a step toward remediation, and it would violate the principle that “Title VII’s exhaustion requirement should not be read to create useless procedural technicalities.” President v. Vance, 627 F.2d 353, 362 (D.C. Cir. 1980).

An agency risks misusing the counseling requirement when it demands excessively detailed support for a class-wide complaint alleging a pattern and practice of subtle financial and professional discrimination. Unlike an allegation of overt harassment or a specific instance of retaliation against an individual employee, class-wide claims of systemically depressed salaries, performance ratings, advancement opportunities, and the like can often be proven only by a statistical comparison of the employer’s treatment of the class to its treatment of non-minority employees. See generally Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984) (“A plaintiff class seeking to show a pattern or practice of disparate treatment must carry the initial burden of offering evidence adequate to create an inference that employment decisions were based on a discriminatory criterion illegal under [Title VII]. This usually means providing evidence—often in statistical form—of a disparity in the position of members of the plaintiff class and comparably qualified whites.” (citation, quotation marks, and emphasis omitted)). Usually, such an analysis will be possible only after the employees obtain data from their employer, whether informally or through discovery. It would be perverse to dismiss a complaint for failure to provide adequate detail in counseling when all of the relevant data is in the employer’s exclusive control.

Alan R. Kabat
Bernabei & Wachtel, PLLC

MSPB decision on security clearance cases

Earlier this year, the MSPB held an unprecedented oral argument in two security clearance cases, Conyers and Northover, both against the Department of Defense. MWELA and NELA submitted an excellent amicus brief, authored by Elizabeth Newman. The MSPB just issued its favorable ruling in the Conyers case.

http://www.mwela.org/docs/NELABrief2009Amicus-ConyersNorthoverVDoDefense.pdf (MWELA's amicus brief)

http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=562382&version=564015&application=ACROBAT (MSPB decision)

http://www.mspb.gov/decisions/decisions.htm (alternate link to MSPB decision)

The key issue is whether:

The Merit Systems Protection Board, in reviewing the removal of an employee occupying a non-critical sensitive position for failure to maintain their access to sensitive information, has the authority to review the merits of the agency determination to deny eligibility for access to sensitive information, and to set aside that determination.

The MSPB split, 2-1, in Ms. Conyers' favor (Mary Rose, dissenting -- she argued that any decision would be a nullity and contrary to the Executive Branch's authority in security clearance cases). It is possible that the government will seek interlocutory review by the Federal Circuit.

Some excerpts follow:

We therefore find that the Board has the authority to review the merits of the agency’s decision to find the appellant ineligible to occupy an NCS position, and that the Board's authority to exercise its statutory review of the appellant's indefinite suspension is not limited by Egan. Applying the full scope of Board review in appeals such as this will not prevent agencies from taking conduct-based adverse actions or suitability actions in appropriate cases. Likewise, agencies may respond to urgent national security issues, even for employees who do not have eligibility for access to, or access to, classified information, by exercising their statutory authority to impose indefinite suspensions and removals through the national security provisions in 5 U.S.C. § 7532. See, e.g., King v. Alston, 75 F.3d 657, 659 n.2 (Fed. Cir. 1996). Here, however, the agency did not choose to act under 5 U.S.C. § 7532, an option the dissent fails to mention. If the agency believed that a Board appeal would involve delicate national security matters beyond the Board’s expertise, or that a Board order might create a conflict with its national security obligations pursuant to Executive Order No. 10,450, it could have exercised its authority pursuant to 5 U.S.C. § 7532. See id.

The agency argues that a Board decision to reverse its action would place it in an impossible position because it must either violate an agency head's decision and allow an employee "who presents a national security risk" to occupy a sensitive position or violate the Board's order. PFR File, Tab 17, Resp. at 8-9. We note, however, that the agency's own actions belie its concern. Although on June 27, 2007, the WHS/CAF issued the appellant its tentative decision to deny her eligibility to occupy her NCS position, the agency did not issue its decision to actually suspend her from the position until September 3, 2009. IAF, Tab 5, Subtabs 4b, 4i. Thus, the agency kept the appellant in her NCS position for over two years after making a tentative determination to deny her eligibility. Although the appellant was admittedly proceeding through the agency's internal review process during part of this time, the record does not indicate that the agency took any action between the appellant's September 22, 2007 response to its tentative determination to deny her eligibility and its February 18, 2009 decision to deny her eligibility, i.e., for over one year. Id., Subtabs 4d, 4e. Therefore, the agency’s own actions do not support its fear of being put in an impossible position by the possibility that the Board might disagree with its decision and order reinstatement.

DISSENTING OPINION OF MARY M. ROSE
in
Rhonda K. Conyers v. Department of Defense
MSPB Docket Nos. CH-0752-09-0925-I-1 & CH-0752-09-0925-I-2

As explained below, I would hold that the Board cannot review the reasons underlying the agency's determination that the appellant is no longer eligible to occupy a sensitive position. When Congress created the Merit Systems Protection Board, it did not mean to limit (assuming it could have) the longstanding discretion vested in the President and agency heads over national security matters. The substance of an agency's decision that retaining an employee would be inconsistent with the interests of national security has never been subject to third-party review before today, and I would hold that it is not subject to such review.

Fourth Circuit ruling in favor of federal employee on whistleblower claims

The Fourth Circuit just reversed the district court (Judge Titus, D. Md.), by reinstating a federal employee’s CSRA and Whistleblower Protection Act claims. However, the Fourth Circuit affirmed the dismissal of the Title VII claims.

The factual background of this case is quite complex -- suffice it to say that the plaintiff worked at NIH and raised concerns about certain experimental treatments for sickle cell anemia. The district court reasoned, inter alia, that since the plaintiff only complained to a supervisor, she could not state a WPA claim, but the Fourth Circuit rejected that as impermissibly narrowing the scope of WPA claims, particularly where this supervisor was not the individual responsible for the wrongdoing, and because the WPA does not require reporting to a person who had the ability to address the problem. Also, the Fourth Circuit found that since reporting these problems was not part of plaintiff’s job duties, her reports were covered by the WPA.

The decision also has a lengthy discussion as to whether the plaintiff properly exhausted her CSRA claims, which she did by virtue of her EEO charge.

The case is remanded for trial on the CSRA and WPA wrongful termination/retaliation claims.

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/092179.P.pdf

Bonds v. Leavitt, No. 09-2179 (4th Cir. Jan. 3, 2011)

DC Circuit rejects bar on disability discrimination claims by employees on disability retirement

Monday, December 21, 2010, the District of Columbia Circuit decided Solomon v. Vilsack and held, as a matter of first impression, that a federal employee receiving disability retirement benefits is not barred from bringing a discrimination claim.

The holding is particularly important for employees who retire because they have been denied a reasonable accommodation that would have enabled them to stay on the job.  Had the case gone the other way, the denial of reasonable accommodations could only be reviewed if the employee would forgo disability retirement benefits.

John Karl of Washington, D.C. argued the case for the plaintiff-appellant.  Dave Wachtel of Bernabei & Wachtel led the drafting of an amicus brief from the Metropolitan Washington Employment Lawyers Association

Brian East, of Austin, Texas described the case for the National Employment Lawyers nelanet

In 1999 in Cleveland v. Policy Management Systems (brought by Texas affiliate member John Wall) the Supreme Court held that the receipt of SSDI benefits does not bar an ADA claim, but instead just requires an ADA plaintiff to satisfactorily explain any sworn statements in the benefit application that appear to conflict with the position in the ADA claim that the employee was able to do her/his job. Since then, the same concept has been applied in cases involving receipt of SSI, comp, and private disability-insurance benefits.

A new case extends the same analysis to federal-sector employees who receive disability retirement benefits from the Federal Employees Retirement System, and who bring claims under the Rehabilitation Act. In Solomon v. Vilsack, ___ F.3d ___, 2010 WL 5155581 (D.C. Cir. Dec. 21, 2010), the court held: 

    Guided by the Supreme Court's analysis in Cleveland … we conclude (1) that claims for federal disability retirement benefits and disability-discrimination claims under the Rehabilitation Act do not so inherently conflict as to justify presumptively barring recipients of such benefits from asserting Rehabilitation Act claims, and (2) that a reasonable jury could find that the statements appellant and her doctor made in support of her application for disability benefits are consistent with her current claim that she could have performed the essential functions of her position with reasonable accommodation.

 

The D.C. Circuit, in what is evidently an issue of first impression, ruled in favor of a federal employee in the following situation: (1) employee files an internal EEO complaint, and the agency rules in the employee’s favor on some but not all issues; (2) agency orders some relief on the successful issues; (3) employee then files a civil action in the district court on the issues that she lost at the agency level; (4) the government seeks to dismiss the case on the grounds that the employee did not seek judicial review of her entire agency-level complaint. The district court (Judge Kollar-Kotelly) agreed with the government that the case had to be dismissed on that ground. The D.C. Circuit reversed.



The D.C. Circuit squarely rejected the government’s assertion that the civil action had to encompass the employee’s entire EEO complaint, not just the issues that she lost at the agency level – in other words, the government wanted de novo review of the entire EEO complaint, so that seeking an appeal as to the lost issues would foreclose any obligation by the agency to comply with the relief awarded by the EEOC Administrative Judge on the successful issues.



The court also rejected the government’s contention that a contrary result might lead to litigation tactics in which the government would never grant partial relief on an EEO complaint.



Some excerpts follow:

http://pacer.cadc.uscourts.gov/common/opinions/201009/09-5291-1264254.pdf

Payne v. Salazar (Secretary, Dept. of the Interior), No. 09-5291 (D.C. Cir. Sept. 7, 2010)



Appeal from the United States District Court for the District of Columbia

(No. 1:08-cv-00164)



David A. Branch argued the cause and filed the brief for appellant.



Christian A. Natiello, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.



Before: GINSBURG, HENDERSON, and GARLAND, Circuit Judges.





Opinion for the Court filed by Circuit Judge GARLAND.



GARLAND, Circuit Judge:

This case raises an important and largely undecided issue under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The government contends that a federal employee who wins one Title VII claim before her agency, but loses another, must put the first at risk in order to seek relief on the second in federal court. Finding no basis for the government’s interpretation of the statute, we reject that contention. . . .



. . . . In September 2004, Payne filed an Equal Employment Opportunity (EEO) complaint with the Interior Department alleging religious discrimination. Later in September, Payne alleges, her supervisor retaliated against her for filing the EEO complaint by giving her a minute-by-minute work schedule, forbidding her to have breakfast with co-workers, and denying her leave. Based on that allegation, Payne filed a retaliation complaint, which the Department consolidated with her discrimination complaint.



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.



In January 2008, Payne filed suit in district court alleging a single claim of retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), based on the same retaliatory conduct initially alleged in her 2004 EEO complaint. In July 2008, Payne amended her suit to add a second retaliation claim based on the Interior Department’s refusal in January 2008 to assign her light-duty work after she returned from an extended medical leave for a bad back. On June 22, 2009, the district court granted the Department’s motion to dismiss Payne’s suit pursuant to Federal Rule of Civil Procedure 12(b)(6). Payne v. Salazar, 628 F. Supp. 2d 42, 52 (D.D.C. 2009).



The court dismissed Payne’s first retaliation claim on the ground that she did not also sue on the discrimination claim she had won before the EEOC administrative judge. According to the court, “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.” Id. at 45-46. Because Payne sought review only of the claim she lost before the administrative judge, the court dismissed her suit for “failure to state a claim.” Id. at 52. . . .



. . . . The government is correct that “the language in the statute explicitly states that it is the final disposition of the complaint that is actionable; not of the individual claims therein.” Appellee’s Br. 7. But this only means that the employee cannot sue until the agency takes final action on all of the claims contained in her administrative complaint. Cf. Administrative Procedure Act, 5 U.S.C. § 704 (authorizing judicial review of “final agency action”); 28 U.S.C. § 1291 (authorizing appellate review of “final decisions of the district courts”). Section

2000e-16(c) does not say that, once the agency has finally disposed of the complaint, the employee must then file that same “complaint” in court. Instead, it says that she may then file a “civil action.” 42 U.S.C. § 2000e-16(c).



The Federal Rules of Civil Procedure “govern the procedure in all civil actions” in federal district courts. FED R. CIV. P. 1. Federal Rule 2 states that there is only “one form of action – the civil action,” and Rule 3 provides that a “civil action is commenced by filing a complaint with the court.” Rule 8 -- which governs the content of such a complaint -- requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Nothing in the Federal Rules suggests that the “complaint” filed in federal court must include all the claims the plaintiff previously raised in a complaint she filed with her agency -- let alone those that were satisfactorily resolved in her favor. Indeed, a complaint filed in federal court cannot include the latter because “a plaintiff must demonstrate standing for each claim he seeks to press,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006), and standing requires that the plaintiff “suffered an ‘injury in fact,’” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).



Notwithstanding the way in which the government has framed the issue, it is not really arguing that an employee’s civil action must include a claim as to which she does not believe herself aggrieved. Rather, the government is effectively arguing that, if the employee wants relief on a claim she lost below, she must permit the agency to withdraw its final action on the claim she won, requiring her to prove it again in court. See Appellee’s Br. 15 (“Payne could bring her retaliation claim if she also br[ings] her discrimination claim and returns the award that was already recompensed to her as a result of her EEO complaint.”). But there is nothing in the statute upon which the government can hang such a construction. To the contrary, 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.



. . . . 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).



. . . . Finally, the government warns that, “[s]hould this Court accept [a]ppellant’s position and allow administrative complainants to advance only the claims they find unfavorable, a serious chilling effect on the government’s ratifying of adverse administrative findings could result.” Appellee’s Br. 15 n.5. If the “agency believes it is liable on one claim, but not the other,” the government posits, “[w]hy would it rule in complainant’s favor on the one claim for which it believes it is liable if it will be precluded from challenging that finding in federal court?” Id.



The government can find the answer to its question in the inscription outside the Attorney General’s Office at the Department of Justice: “The United States wins its point whenever justice is done its citizens in the courts.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The same is true of justice done its employees in the agencies. If an agency “believes it is liable” on a claim, Title VII requires it to rule in the complainant’s favor without regard to tactical litigation considerations. See 42 U.S.C. § 2000e-16(e) (declaring that “[n]othing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment”).