Payne v. Salazar, No. 09-5291 (D.C. Cir. Sept. 7, 2010)

By Paul Mollica

Federal employees who adjudicate their Title VII claims through the agency route have a choice, if they are dissatisfied with the result, between appealing to the EEOC or refiling the claims in federal district court. This case becomes the first to hold that an employee with multiple Title VII claims may accept the results of a winning claim while also proceeding to federal court with the losing ones.

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

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

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

The panel recognizes the Government’s actual argument – that an employee who wants to improve on her remedy should stake her winnings – but finds no support for this interpretation in the statute. “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.” The panel notes the oppressiveness of the agency’s position in this case: the employee herself brought two separate complaints, and the agency itself consolidated them for adjudication.

The panel also notes that the government’s interpretation would diminish government employees’ rights versus the private sector:

“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).”

The panel did affirm dismissal of Payne’s second retaliation claim on the ground that she failed to administratively exhaust it, and the claim was not “like or reasonable related to” her other claim.