The D.C. Circuit — not typically the most active of courts in the EEO arena — today publishes three Title VII decisions, touching on judicial estoppel, the “single filing” rule, and what constitutes a “materially adverse” action for purposes of retaliation.
Moses v. Howard Univ., No. 08-7087 (D.C. Cir. June 1, 2010): In what has become a recurring theme in employment cases, the employee declares bankruptcy and fails to list a Title VII action as an asset of the estate. Courts, including the D.C. Circuit here today, generally hold the debtor to his or her failure if it appears to be deliberate. Under the facts of this case, the employee failed twice to list the claim in a 2003 Chapter 7 bankruptcy and a 2007 Chapter 13 bankruptcy, as required by 11 U.S.C. §§ 521(1) and 541(a)(1). Oddly, this fact apparently came to light in the Title VII case only after the district court denied summary judgment and set the case for trial. The employer then moved to reopen the summary judgment motion and the employee moved to amend his Chapter 7 “Statement of Financial Affairs” to include the action. The bankruptcy trustee (Janet Nesse) then moved to substitute herself as plaintiff under Fed. R. Civ. P. 17(a), attempted unsuccessfully to settle the claim and finally abandoned the claim back to the debtor. The the district court granted summary judgment on the grounds of judicial estoppel.
The D.C. Circuit affirms. Though finding that the plaintiff had the standing to pursue the appeal and that his notice of appeal was timely (the filing period having been tolled by the trustee’s participation in the case), the panel ultimately holds that the employee’s initial omission of the Title VII claim from the two Statements before the bankruptcy court thereby estopped the claim. The panel observed that the facts met each of three conditions for estoppel (the positions were clearly inconsistent, the first proceeding terminated in the plaintiff’s favor, to allow the plaintiff to assert an inconsistent position in the present action would be unfair).
On the last point, the panel noted: “In maintaining this suit without disclosing it in his bankruptcy proceedings, Moses set up a situation in which he could gain an advantage over his creditors. In other words, had he prevailed in his lawsuit against Howard, he would have kept any damages for solely himself, to the detriment of his creditors. Moses’s inconsistent positions also adversely affected Howard. Had the trustee known of this lawsuit during the Chapter 7 bankruptcy proceedings, she might have settled this case early
or decided not to pursue it, actions that might have benefitted Howard.”
Brooks v. District Hospital Partners, LP, No. 09-7036 (D.C. Cir. June 1, 2010): Employees who commenced a Title VII disparate-impact challenge (to a testing process for Nursing Assistants that screened out minorities) failed to obtain class certification; the district court believed that the case needed to be sub-classed with separate named representatives. The plaintiffs complied, but the plaintiffs-intervenors (named Brooks and Taylor) did not file their own EEOC charges before intervening. The district court once again denied class certification, this time on grounds of adequacy: “the district court denied certification because it found Brooks and Taylor to be improper class representatives. Although Brooks and Taylor were allowed to join the Marable suit without personally filing an EEOC complaint, the district court concluded a proposed class representative must personally exhaust administrative remedies as a ‘condition precedent to sustaining a class action under Title VII.'”
The D.C. Circuit — between grappling with some jurisdictional hurdles, and deciding whether joinder was properly effectuated — ultimately holds that the intervenors were not required to file their own EEOC charges to have standing to proceed, and could rely on the first-filed charge of the original plaintiff, Ms. Marable: “an independent EEOC filing by appellants would have been redundant: GWUH already had received adequate notice of appellants’ exact allegation and the EEOC had first crack at resolving that allegation. Appellants, therefore, properly invoked the single-filing exception to join the lawsuit filed by Marable and her co-plaintiffs.”
Porter v. Shah, No. 09-5167 (D.C. Cir. June 1, 2010): A black male employee of the U.S. Agency for International Development (USAID) alleged 14 counts of discrimination (both race and gender) and retaliation under Title VII. The agency won summary judgment on the entire complaint and the employee appealed ten of the fourteen counts. The D.C. Circuit substantially affirms the decision (some on claim-preclusion grounds, and the rest on the merits), but sends three counts back for trial.
Two counts involve the same denial of promotion. The plaintiff pointed to the successful (female) candidate’s lack of a basic educational prerequisite, a degree in personnel or business management: “In lieu of the ‘required’ bachelor’s degree in business, Porter, whose bachelor’s degree is in political science, holds a second master’s degree in business (he has a master of science in business and a master’s degree in business administration); the selected, by contrast, was a high school graduate with no college degree at
all. Given that the two candidates’ qualifications were otherwise close, as the district court acknowledged, 601 F. Supp. 2d at 225, the substantial educational discrepancy could lead a reasonable jury to conclude that Porter was ‘markedly more qualified’ than was the selectee, ‘thus throwing into doubt the reason given for his rejection.’ [Citation.]”
Finally, the panel reverses summary judgment on a retaliation claim involving the placement of a poor performance review. Although courts have often held that negative performance evaluations in the private sector are insufficiently adverse to support a retaliation claim, in the federal government the rule seems to be the reverse. “Under Civil Service regulations and USAID policies, the rating and the PIP could expose him to removal, reduction in grade, withholding of within-grade increase or reassignment. See 5 C.F.R. § 432.104; ADS 4184.108.40.206. Given their serious consequences affecting Porter’s ‘ ‘position, grade level, salary, or promotion opportunities,’ ‘ the negative assessment together with the PIP constituted a material adverse