Diversity & Inclusion

Ex-EEOC employee met requirements to pursue disability claim against agency

by Nancy Williams

Just as private-sector workers are required to file an administrative charge of discrimination before filing a lawsuit under Title VII of the Civil Rights Act of 1964, federal employees also have prefiling requirements. In a disability discrimination case against the Equal Employment Opportunity Commission (EEOC), the 9th Circuit recently decided that the employee had taken all necessary steps and could proceed with her claim.

Was filing of lawsuit fatally premature?

Mary Bullock was an administrative law judge (ALJ) for the EEOC from 1999 to 2007. She suffers from both multiple sclerosis and systemic lupus. In January 2003, she filed an informal disability discrimination complaint, and four months later, she filed a formal complaint. She claimed the EEOC had failed to accommodate her condition and thus had violated the federal Rehabilitation Act. The informal and formal complaint steps track the requirements of Title VII for federal employee claims.

Bullock’s claims were presented to a contract ALJ, in accordance with EEOC policy when a complaint is filed by one of the agency’s own employees. The contract ALJ concluded that Bullock wasn’t a qualified individual with a disability because she couldn’t perform the essential functions of her job even with an accommodation. That conclusion didn’t let the EEOC off the hook, however, because the contract ALJ found that the agency had retaliated against Bullock because of her complaint. She was awarded damages of $25,000 plus attorneys’ fees and costs totaling approximately $116,000.

Both Bullock and the EEOC filed administrative appeals of the ALJ’s order. A month later, Bullock withdrew her appeal, indicating she intended to file a civil action. Her lawsuit was filed on October 18, 2006, within 90 days of the ALJ’s order. The EEOC’s administrative appeal was then dismissed based on a federal regulation designed to avoid simultaneous processing of the same claim in two different forums.

The EEOC asked the trial court to throw out Bullock’s claim on the grounds that she had not jumped through all required hoops before filing suit. Title VII authorizes a federal employee to file a lawsuit after an administrative appeal has been filed within specified time parameters―within 90 days of receiving notice of final agency action or after 180 days from the filing of the appeal if no final agency action has been taken by that point. According to the EEOC, Bullock filed her lawsuit too soon since there had been no decision on the appeal and she hadn’t waited the full 180 days after filing her appeal.

The trial court accepted the EEOC’s position and dismissed Bullock’s lawsuit. Bullock appealed.

180-day waiting period not required

The 9th Circuit’s analysis turned on which steps are required before a lawsuit may be filed and which steps are merely optional. Federal employees who want to file a discrimination claim must first file an informal complaint that triggers counseling by the EEOC. If no resolution is reached, the employee next must file a formal complaint to be heard by an ALJ. Bullock had taken both steps, thus fulfilling the requirements.

At that point, both Bullock and the EEOC had filed administrative appeals. The EEOC argued that having invoked the administrative review process, Bullock could then file a lawsuit only if she did so within 90 days of final action on her appeal or after 180 days had elapsed without a final action. According to the agency, she couldn’t cut the process short. It relied on an earlier case in which the 9th Circuit had stated: “Impatience with the agency does not justify immediate resort to the courts.”

But the 9th Circuit found these circumstances were different. The informal and formal complaint procedures were prerequisites to her filing a lawsuit. The administrative appeal, however, was optional. If she had filed a lawsuit without appealing, there would be no question that she had satisfied all prefiling requirements. And she had filed within 90 days of the ALJ’s order, which then was in effect the final agency action. It didn’t make sense to make her wait out the appeal process. There was no reason to cut off her claims simply because she had decided to withdraw an appeal that she didn’t have to file.

Bullock’s claims were sent back to the trial court for further proceedings. Bullock v. Berrien, Case No. 10-55866 (9th Cir., July 30, 2012).

Procedural defenses sometimes fail

The EEOC undoubtedly hoped that a procedural defense would dispose of this case entirely. After all, if Bullock’s failure to wait to file suit disposed of the matter, neither the agency nor the court would have to deal with the tougher underlying issue: Was there a failure to accommodate her disability?

If you face a discrimination claim under federal law, explore with your attorneys whether there’s a possible defense based on the employee’s failure to follow procedures. Such a defense can offer a great shortcut to ending a case. But the 9th Circuit reminds us that procedural defenses don’t always work and that ultimately we must be prepared to deal with the facts that led to the claim in the first place.


Nancy Williams is a partner at Perkins Coie in the firm’s Seattle, Washington, Labor & Employment practice. For nearly 30 years, she has counseled employers and represents them in litigation on equal employment opportunity, discipline and discharge, and a wide variety of other employment issues.  She may be contacted at NWilliams@perkinscoie.com.

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