This is rich: In a retaliation case that went to trial, the Tenth Circuit holds that it is a “protected activity” under the participation clause of § 704(a) of Title VII for a defense lawyer to represent an employer in a mediation.
Kelley v. City of Albuquerque, No. 05-2309 (10th Cir. Sept. 17, 2008): Kelley was an assistant city attorney whose claim began between the first and second terms of Mayor Martin J. Chávez, during an interim when he was out of office. In private life, he was an attorney and represented a city employee in mediation before the EEOC:
“In 2000, Ms. Kelley represented the City in two EEOC mediation sessions in which Mr. Chavez participated as opposing counsel. Following the first session, Ms. Kelley recommended that a private investigator be hired to investigate Mr. Chavez’s client’s allegations of discrimination. The investigator was unable to verify the allegations. Ms. Kelley testified that when she informed Mr. Chavez of the unfavorable results of the investigation during the second mediation session, he became hostile and admonished: ‘Ms. Kelley, don’t call my client [by his first name] Steve. He’s a City employee. He deserves your respect. I’ll not have you patronizing my client by calling him Steve.’ Aplt. App. at 350. Later in the same mediation, Ms. Kelley referred to Mr. Chavez by his first name. He responded by throwing his file on the table, demanding that Ms. Kelley address him as Mr. Chavez, and abruptly terminating the session. Ms. Kelley claimed that she was polite and conciliatory throughout the mediation, and she described the incident to Mr. White upon her return to the office.
“At trial, Mr. Chavez related a different version of the same events. He testified that Ms. Kelley’s tone throughout the second mediation was ‘demean[ing]’ and infused with ethnic overtones to the point where he believed she was a ‘bigot.’ Aplt. App. at 781-82, 793. He felt Ms. Kelley had acted unprofessionally and unethically, although he did not report her to the state bar association or to her employer. Nor could Mr. Chavez identify the basis for his characterization of her behavior; he attributed his view to a ‘sixth sense.’ Id. at 784.”
The following year (2001), Mayor Chávez was reelected to office. Kelley was anxious, in the run-up to the election, that she would lose her job in the new administration, so she engineered a transfer to Albuquerque’s human resources department. But there’s not very far for a city employee to run in Albuquerque. As part of a restructuring, the mayor demanded Kelley’s resignation (along with other assistant city attorneys). In the course of the shake-out, Mayor Chávez mentioned to another senior figure at the city (Robert White) about the EEOC mediation that he had been involved in with Kelley.
Kelley brought suit against the city for Title VII retaliation and against White and Chávez for an equal protection class-of-one violation. (The latter claims dropped out on appeal, on account of Engquist v. Or. Dep’t of Agric., 128 S. Ct. 2146, 2155 (2008).) A jury found Kelley against the city and awarded (for the Title VII retaliation $372,975.90 in damages, including $172,974.90 in back pay, $200,000 for loss of future benefits, and $1 in nonpecuniary compensatory damages.
The Tenth Circuit affirms the verdict. The panel has occasion to evaluate the 42 U.S.C. § 2000e(f) definition of and exemptions from the term “employee,” and affirms denial of judgment as a matter of law on the defense that an assistant city attorney is an “immediate adviser with respect to the exercise of the constitutional or legal powers of the office.” As there are few published opinions on this issue, it is probably worth the while of corporation counsel and city attorneys to read this exhaustive discussion.
But to this plaintiff’s lawyer, the meat of this case is the irony that a defense lawyer would seek the shelter of Title VII for retaliation for doing her job (perhaps a bit too aggressively) for the city. The city thought that this was pushing a good joke too far, but the panel (affirming the verdict) holds that defense lawyering is a protected form of participation. Under Title VII it is “an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added). The panel holds that the “participation” needn’t be limited to affirming or supporting a civil rights claim:
“even if the City were correct in contending that the natural reading of the statute would cause it to be over-inclusive in its protective sweep, that would hardly render the effect of the statute absurd — that is, ‘so gross as to shock the general moral or common sense.’ . . . Congress could have rationally concluded that some over-inclusivity was a cost that it was willing to bear to ensure that no participant that it intended to protect was inadvertently omitted from the statute’s coverage. . . . Moreover, including defense counsel within the ambit of the statute actually promotes its objectives. Congress’s studied use of all-embracing language signals its intent to address more than the limited objective of facilitating the reporting of discrimination by employees. Instead, Congress was also concerned with ensuring the ‘overall integrity of the administrative process.’ . . . . Protecting attorneys who afford representation to all parties in EEOC proceedings from subsequent adverse employment actions motivated by their participation serves this objective. Failing to shield such activity could chill the likelihood-and quality-of representation during such proceedings thus, in turn, impacting the fairness of the proceedings, the openness of the litigation, and the possibility of settlement.”
It’s hard to imagine these circumstances repeating themselves. Still, at least the Tenth Circuit has clarified for the next defense lawyer who runs up against the once-and-future mayor during a mediation that she may see a payday under § 704(a).