Case: Egei v. Johnson, 192 F Supp. 3d 81 (D.D.C. 2016)

Issues: Title VII Retaliation

Holding:  The United States District Court for the District of Columbia held that employer retaliated against employee for terminating employee where employer believed that employee had made false sexual harassment claim.  The court held that Title VII’s participation clause safeguards an employee from “adverse employment action taken on the basis of the substance of a charge or testimony” given during EEO proceedings.

Employment Counsel: More employers violate Title VII (and other anti-discrimination laws), through retaliation than outright discrimination.  In August 2016, the EEOC issued Enforcement Guidance on Retaliation and Related Issues providing valuable insight and guidance for employers.  When an employee makes an allegation of discrimination or harassment, the employer must not take any negative actions towards that employee based upon such allegations – even if the employer reasonably believes such allegations to be false.

Case Summary:  In this case the court considered whether an employer could lawfully terminate an employee for making false or malicious charges or statements in the course of an Equal Employment Opportunity (“EEO”) proceeding.  The plaintiff, Ominoba Egei, worked as a disaster assistance employee for the Federal Emergency Management Agency (“FEMA”).  FEMA sent Egei to Texas after Hurricane Ike.  Egei alleged that while there, her supervisor, Jean Jacques Fequiere, sexually harassed her.  According to her complaint, Fequiere requested that Egei massage him, asked her to his hotel room where he appeared from the bathroom half naked, requested that she shower with him, and threatened to send her home after she refused his advances.  

Shortly after these incidents, Egei was “right-sized” or sent home to be reassigned.  Egei filed an EEO administrative complaint under Title VII, but during the proceedings, she was impeached because FEMA showed that Egei had picked up a rental car during the timeframe that she claimed the sexual harassment had occurred. The ALJ judge rejected Egei’s claim on the basis that she did not prove her claim and that FEMA had shown the events did not occur.

A year and a half later, FEMA informed Egei that she was terminated for the false charges she had brought. Egei again filed suit, this time alleging that FEMA unlawfully retaliated against her for making an EEO claim. In response, FEMA argued that although an employer cannot terminate an employee for making an EEO claim, it can terminate her for making false or malicious statements.   

Circuit Split: Absolute vs. Qualified Protection: The participation clause of Title VII’s retaliation provision states that an employer cannot retaliate against an employee because she has “’made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing’ governed by Title VII.”  The court acknowledged a circuit court split as to the question of whether this clause provides the employee an absolute privilege from the substance of her testimony –even if that testimony is later deemed to be false or malicious by an ALJ judge- or whether the protection is qualified and an employee’s claim must be made in good faith.

In siding with the interpretation that an employee is fully shielded from adverse action on the basis of testimony given during an EEO proceeding, the court reasoned that (1) case precedent favors an unqualified protection, (2) a straightforward reading of the statute’s unrestrictive language suggests that the substance of all claims and testimony provided during an EEO proceeding is protected, (3) the remedial purpose of Title VII would be chilled with a narrower interpretation since if the outcome of an EEO claim can later justify an employee’s termination, then others could be discouraged from filling legitimate claims against their employers.

Despite ruling in favor of broad protection, the court emphasized that this protection does not apply to those cases where an employee admits to lying or for example, “an employee maliciously divulges secrets on the public record in a Title VII action.”

The court granted partial summary judgment to Egei. Since the “fundamental premise of FEMA’s argument is that it fired Egei because of her statements, not because she chose to avail herself of the EEO process,” FEMA’s actions constituted a violation of Title VII’s retaliation clause.

For additional information about this case or other employment law matters, please contact Merritt Green at mgreen@gcpc.com or (703)556-6505.  Mr. Green leads General Counsel, P.C.’s Employment Law Practice and has been representing employers (and occasionally employees) for over 18 years.