Employment-law litigators are well-familiar with the provisions of Title VII and other federal employment statutes that penalize retaliation against an employee who files a lawsuit. But the D.C. Circuit reminds us today that there is another pair of federal civil rights statutes that can cover the same claim, the post-Civil War laws 42 U.S.C. §§ 1985(2) and 1986. The court holds that the district court erred in dismissing these claims before trial.
Bowie v. Maddox, No. 08-5111 (D.C. Cir. June 21, 2011): The court summarized the claim:
"Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. Defendants say Bowie was fired for performance problems. But Bowie says his termination was the culmination of a retaliatory conspiracy by his superiors to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie's dissent."
Johnson and Bowie in the 1990s filed a class action against the FBI racial discrimination in promotions. From early on, Johnson believed that Maddox and others had the long knives out for him:
"Bowie claims that in 1999, after Johnson followed him from the FBI to OIG's Investigations Division, Bowie's boss, Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to 'provide any assistance or cooperation with the [OIG] in investigative matters if Johnson was involved. Bowie interpreted this as 'a direct demand that Maddox fire Johnson' or 'suffer a severed FBI/[OIG] relationship.' Bowie suspects Carter's ultimatum was motivated by his anger at Johnson for filing several discrimination complaints-some against Carter himself-with the FBI's Equal Employment Office."
Johnson was terminated; he filed a charge and eventually a Title VII civil action for race discrimination.
Bowie, who expressed support for Johnson and objected to plans to fire him, began to suffer setbacks at work starting around 2000: was removed from a high-profile investigation, he saw a subordinate promoted ahead of him, and started to draw lower performance ratings. Matters for Bowie accelerated downward when he consented to appear on Johnson's trial witness list. His ratings plunged, he was placed on a disciplinary Performance Improvement Plan and he was eventually fired.
Bowie brought his own civil action for retaliation based on three theories: Title VII "participation" in a hearing; First Amendment retaliation; and §§ 1985(2) and 1986 conspiracy. The district court allowed only the first of these claims to go to trial, and the jury entered a verdict for the defendant.
While the D.C. Circuit affirmed judgment dismissing the first two claims, it remanded the civil rights conspiracy claim for further proceedings.
The first clause of § 1985(2) permits an action for damages when
"two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified."
And § 1986 permits damages against any
"person who, having knowledge that any of the wrongs conspired to be done, and mentioned in [§ 1985], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do."
The district court dismissed these claims on two grounds, both of which the D.C. Circuit holds legally erroneous. The first was that the plaintiff was required to prove that conspirators intended to discriminate on the basis of race. But as the D.C. Circuit holds, "Bowie's claim of a conspiracy to deter his testimony does not require evidence of race discrimination. Lack of invidious motive is an inadequate basis for dismissing a claim under the first clause of § 1985(2), because that clause 'contain[s] no language requiring that the conspirators act with intent to deprive their victims of the equal protection of the laws.' Kush v. Rutledge, 460 U.S. 719, 725 (1983)."
The district court also held that Title VII was the sole remedy for a federal employee alleging retaliation for participating in a Title VII trial. Again, the D.C. Circuit demurs: ". . . Bowie's § 1985(2) claim specifically alleged a conspiracy to deter him from testifying in support of Johnson in federal court. The corresponding right is created by § 1985(2), not Title VII."
Finally, the D.C. Circuit noted for future consideration a third argument not raised below: that the alleged conspirators "could not have engaged in a conspiracy because they are all employees of the same District agency, and a single corporate entity cannot conspire with itself," i.e., the "intracorporate conspiracy doctrine." The panel noted a circuit split on whether the doctrine applied to civil rights act, but remanded the defense to the district court for further development.