Fiorillo v. Slater Brief for Plaintiff-Appellant

    97-6337
united s t a t e s  c o u r t  o f  a p p e a l s

FOR THE SECOND CIRCUIT

ANNE M. FIORILLO,

Plaintiff-Appellant,

RODNEY SLATER, Secretary,
United States Department of Transportation,

Defendant-Appellee.

On Appeal from the 
United States District Court 

for the Southern District of New York

BRIEF FOR PLAINTIFF-APPELLANT

IN THE

v.

Theodore M. Shaw 
N orman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal D efense and  

E ducational Fu n d , In c  
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

E laine R. Jones 
D irector-Counsel

Geoffrey Mort 
Goodman  & Z uchlewski 

500 Fifth Avenue 
Suite 500
New York, NY 10110 
(212) 869-1940

Attorneys for Plaintiff-Appellant



TABLE OF CONTENTS
DECISION BELOW ................................................  ±

JURISDICTION ..................................................  ±

STATEMENT OF THE C A S E .........................................  2

A. Nature of the Case, Course of Proceedings, and
Disposition Below....................................  2

B. Statement of Facts.................................. 4

STATEMENT OF THE ISSUE PRESENTED ............................  9

SUMMARY OF ARGUMENT...............................................

A R G U M E N T .........................................................   ±

INTRODUCTION .............................................. ±1

I . PLAINTIFF-APPELLANT HAS STATED CLAIMS UNDER TITLE
V I 1 .............................................................................................................12
A. The Statute and Regulations Impose an

Affirmative Obligation on Federal Agencies to 
Enforce Title V I I ............................... 12

B. The Defendant Agency Discriminated Against 
Plaintiff-Appellant In Its Failure to Follow 
The Requirements of 42 U.S.C. § 2000e-16 and
29 C.F.R. Part 1614............................... 18

C. Plaintiff Has Stated a Cause of Action
Against the Defendant for Discrimination and 
Retaliation in Violation of Title VII . . . .  22

II. PLAINTIFF HAS STATED CLAIMS UNDER THE APA AND THE
MANDAMUS A C T ....................................... 2 5

C O N C L U S I O N .................................................... 2 8
CERTIFICATE OF SERVICE .......................................  29

1



TABLE OF AUTHORITIES
Cases : Pages
Arlington Heights v. Metro Housing Corp.,

429 U.S. 252 (1977) .....................................  24

Baba v. Japan Travel Bureau International, Inc.,
Ill F . 3d 2 (2d Cir. 1997) ..........................  12, 22

Brown v. G.S.A., 425 U.S. 820 (1977) ......... 16-18, 25, 26, 29

Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) . . .  21
Chandler v. Roudebush, 425 U.S. 840 (1977) ................. lg

Clark v. Chasen, 619 F.2d 1330 (9th Cir. 1980) .............  16

Davis v. Passman, 442 U.S. 228 (1979)........................ 26

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ........... 23

Grant v. Lone Star Co., 21 F.3d 649 (5th Cir. 1994)   21
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)   16

Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975) ........  16

Hogan v. Pierce, 31 FEP Cases 115 (D.D.C. 1 9 8 3 ) .............  24
Houseton v. Nimmo, 670 F . 2d 1375 (9th Cir. 1982) ........... 26

Kulkarni v. Hoffman, 22 FEP Cases 1463 (D.D.C. 1976) . . . .  26

McKenna v. Weinberger, 729 F.2d 783 (D.C. Cir. 1984) . . . .  26
Miller v. Maxwell's Int'l, Inc., 991 F.2d 583

(9th Cir. 1993)   21

Olivares v. NASA, 934 F. Supp. 698 (D. Md. 1996) . . . .  22, 23

Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993) . . 21
Smith v. St. Bernards Regional Medical Ctr.,

19 F . 3d 1254 (8th Cir. 1 9 9 4 ) ............................ 21

Sperling v. United States, 515 F.2d 465 (3d Cir. 1975) . . .  16
Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)   21

Young v. Sullivan, 733 F. Supp. 131 (D.D.C. 1990), aff'd, 946
F.2d 1568 (D.C. Cir. 1991), cert, denied, 508 U.S 918
(1992)....................................................  22

ii



Pages:

Statutes and Rules: Pages•
5 U.S.C. 5 U.S.C. §§ 701-06 .....................................  ±

28 U.S.C. § 1 2 9 1 ................................................ ..

28 U.S.C. § 1343 ................................................ ..

28 U.S.C. § 1 3 6 1 ................................................ ..

28 U.S.C. § 2201 ............................................. 26

28 U.S.C. § 2202 .............................................. 26
29 U.S.C. § 6 3 3 a ................................................... .....

42 U.S.C. § 2000e, et seq....................................  4

42 U.S.C. § 2000e-16 ..................................... passim

Administrative Procedure Act ..........................  i 25-27

Age Discrimination in Employment A c t ......................1, 15

Congressional Accountability Act of 1995, Pub. L. No. 104-1 . 26
Mandamus A c t ....................................... ...  2 25 27

Reorganization Plan No. 1 of 1978, 43 F.R. 19807,
92 Stat. 3781 (Feb. 23, 1978) ...................... 13, 17

Rule- 41(a),. Fed. R. Civ. Proc................................ 4

Rule 54(b), Fed. R. Civ. Proc.............................  4

Title VII of the Civil Rights Act of 1964 ................. passim

Regulations:

29 C .F.R § 1614.103 .............

29 C.F.R. Part 1614 .............

29 C.F.R. § 1614.102(a)(2) . . .

29 C.F.R. § 1614.102 (c) (5) . . .

29 C.F.R. § 1614.105(a)(1) . . .

iii

Pages: 

15

. . 6 

14 

14 

14



29 C.F.R. § 1614.105(d)

29 C.F.R. § 1614.105(g)
29 C.F.R. § 1614.106(d)
29 C.F.R. § 1614.107(a)
29 C.F.R. § 1614.108
29 C.F.R. § 1614.109

14, 19 

. 20

14

15, 21

15 

15

Pages:

Other Authorities: Pages•

"Hearings on Reorganization Plan No. 1 of 1978" before the
Committee on Governmental Affairs United State Senate (95th 
Cong. , 2d Sess . ) ......................................... ...

Jackson v. Runyon, Postmaster General, EEOC Appeal No 01923399
(Nov. 12, 1992)   16

Lindemann and Grossman, Employment Discrimination Law
(3d Ed. 1996) .......................................  13, 17

S. Rep. No. 415, 92d Cong., 1st Sess......................16( 17

Spriggs, Representing Plaintiffs in Title VII Actions, Chapter 9, 
"Peculiarities of the EEO Process for Federal Employees" 
(Wiley Law Publications, 1994)   16

The Federal Civil Rights Enforcement Effort — 1974, Volume V, To 
Eliminate Employment Discrimination. A Report of the United 
States Commission on Civil Rights, July 1975 ........... 17

IV



No. 97-6337

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

ANNE M. FIORILLO,

Plaintiff-Appellant,
v.

RODNEY SLATER, Secretary,
United States Department of Transportation,

Defendant-Appellee.

On Appeal from the United States District Court 
for the Southern District of New York

B R IE F  FOR P L A IN T IF F -A P P E L L A N T

DECISION BELOW

This is an appeal from a decision of Hon. John G. Koeltl, 

United States District Judge. The decision of July 18th, 1997,

dismissing the claims at issue in this appeal is unreported and is 

set out in the Joint Appendix (hereinafter "J.A."), at pp. A-78 to 
A- 95 .

JURISDICTION

The complaint in this action sought to state claims under 

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 

2OOOe-16, the Age Discrimination in Employment Act, 29 U.S.C. § 

633a, the Administrative Procedure Act, 5 U.S.C. 5 U.S.C. §§ 701- 

06, and the Mandamus Act, 28 U.S.C. § 1361. Jurisdiction is
invoked under 28 U.S.C. §§ 1343(3) and 1343(4).



This is an appeal from a final judgment entered on November 5, 

1997, entering judgement against the plaintiff-appellant. (J.A. A-

100 to A-101.) Plaintiff-appellant filed a timely notice of 

appeal. (J.A. A-102.) Jurisdiction over this appeal is
established by 28 U.S.C. § 1291.

STATEMENT OF THE CASE

Nature_of_the Case, Course of Proceedings, and Disposition
Below,

This is an action brought by an employee of an agency of the 

federal government under Title VII of the Civil Rights Act of 1964, 

as amended by the Equal Employment Opportunity Act of 1972 and the 

Civil Rights Act of 1991, 42 U.S.C. § 2000e-16, the Age

Discrimination in Employment Act, the Administrative Procedure Act, 

and the Mandamus Act. Anne Fiorillo, the plaintiff-appellant, 

alleged that she had been discriminated against because of her sex 

and age, and in reprisal for having raised claims of 

discrimination. She further claimed that the defendant, the 

Secretary of Transportation,1 had failed in his duty to enforce the 

laws against employment discrimination to her injury. J.A. at A-8 
to A-22 ,

The claims of plaintiff-appellant were varied. First, she 

claimed that she had been treated differently from younger women 

with regard to certain duties and responsibilities concerning the 

defense of proceedings before the Merit Systems Protection Board.

during the course of the proceedings, the original defendant, 
Frederico Pena, was replaced in the office of Secretary of 
Transportation by Rodney Slater.

2



Second, she claimed that when she raised questions about her 

treatment informally she was subjected to reprisal by her then 

supervisor, who filed a spurious complaint of discrimination 

against her, and that the agency participated in this reprisal by 

accepting the complaint and entering into a settlement of it that 

was injurious to her and that it subsequently gave her an 

unwarranted lower performance appraisal. Third, she claimed that 

she had been retaliated against and discriminated against because 

of her sex when she attempted to file and have processed a 

complaint of discrimination regarding these matters in that the 

agency did not process her complaint properly, in contrast with its 

immediate and favorable treatment of her male supervisor's 

complaint against her. She further alleged that she had suffered 

emotional distress and stress as a result of these actions, and 

sought appropriate back pay and compensatory damages.

Defendant-Appellee filed a motion to dismiss on the pleadings, 

arguing that some of the claims of plaintiff-appellant had not be 

timely raised in the administrative process, and that the complaint 

did not state a cause of action with regard to her claims relating 

to the processing of her administrative complaint of 
discrimination. J.A. A-76.

The district court granted the motion in part and denied it in 

part. With regard to the claims of age discrimination and the 

performance appraisal, the court held that the complaint 

sufficiently alleged a continuing violation and injury, and hence 

the motion to dismiss was denied. However, the court dismissed all 

claims relating to the EEO administrative complaints, including

3



both the supervisor's having filed an EEO complaint against 

plaintiff and the claimed discrimination and reprisal in the manner 

in which her EEO complaint was treated in contrast with his. J.A. 
A-78. to A-95 .

Plaintiff-appellant filed a motion to reconsider or, in the 

alternative, for the entry of a final judgment under Rule 54(b) 

Fed. R. Civ. Proc., with regard to the EEO complaint claims, which 

motion was denied. J.A. A-96 to A-97. The parties then stipulated 
to the voluntary dismissal under Rule 41(a), Fed. R. Civ. Proc., of 

the remaining age and reprisal claims, (J.A. A-98 to A-99), and an 

order and a final judgment were entered dismissing the complaint in 

its entirety based on the decision and order of the district court 

dismissing the EEO claims and the stipulation of partial voluntary 
dismissal. J.A. A-100 to A-101.

A timely notice of appeal was filed. J.A. A-102. Pursuant to 

the stipulation of voluntary partial dismissal, the appeal is 

1 imited to the dismissal by the district court of the claims of 
discrimination and retaliation relating to the processing of 
plaintiff's and her supervisor's EEO complaints.
B, Statement of Facts.

The facts as set out in the complaint must be taken as true 

since this is an appeal of an order dismissing the complaint. 

Plaintiff-appellant is a civilian employee of the United States 

Coast Guard, a part of the Department of Transportation. In 1994 

she was asked by her then-supervisor, Vincent Martin, to defend an 

appeal to the Merit Systems Protection Board by a former Coast

4



Guard employee.2 J.A. A-11. She carried out the assignment 

diligently, putting in extra hours for which she received no 

compensatory time. This was the first time she had handled such an 

appeal, but she did not receive the same support or training as had 

younger women who had handled similar appeals. The agency 

successfully defended the appeal, thanks to her work. J.A. A-ll to 
A-13 .

After the appeal was concluded, on January 9, 1995, Ms. 

Fiorillo wrote a memorandum, "Lessons Learned," in which she 

discussed some of the problems she had had and in which she raised 

her claim that she had been treated differently when compared to 

younger employees who had gotten similar assignments. J.A. A-14. 

The memorandum was addressed to the Deputy Chief of Personnel. She 

prepared the memorandum in order to deal informally with the 

problems that had arisen and to avoid similar problems in the 
future. J.A. A-41 to A-43.

Mr. Martin was asked by management to respond to the 
memorandum. In the process, he took exception to what he took to 

be criticism of himself. He responded by filing an informal EEO 

complaint with the agency's Equal Employment Opportunity Office on 

February 26, 1995. J.A. A-45 to A-50. The purported basis for a 

claim of discrimination is obscure. Mr. Martin complained at some 

length about the content of the "Lessons Learned" memorandum and 

Ms. Fiorillo's actions. He then claimed that he had been

'At some later point in time, Mr. Martin ceased to be her 
supervisor. The events that culminated in this lawsuit, however, 
arose during the time Ms. Fiorillo was in a subordinate position to 
him.

5



subjected to gender-based discrimination by the plaintiff, his 

subordinate, because she had not submitted similar memoranda about 
any of her other supervisors. J.A. A-48.

In April of 1995, plaintiff-appellant sought to file an EEO 

complaint based on age, sex, and reprisal. J.A. A-26 to A-33. in 

part, her complaint was based on the EEO charges against her by Mr. 

Martin, which she alleged had a retaliatory purpose. J.A. A-32. 

Subsequently, Mr. Martin filed a formal EEO complaint on July 10, 

1995, charging that Ms. Fiorillo "has filed an age discrimination 

complaint against me as a result of my informal complaint" and that 

this was "additional evidence of the retaliatory and vindictive 

behavior of Ms. Fiorillo." J.A. A-52. Mr. Martin's complaint was 

accepted and a settlement was entered into pursuant to the 

governing EEO regulations, 29 C.F.R. Part 1614. J.A. A-63-A-64. 

The settlement, which was dated October 11, 1995, provided, inter 

al_ia, that M r . Martin would receive 16 hours of compensatory time 

and made the following statements regarding plaintiff's "Lessons 
Learned" memorandum of January 9, 1995:

the Command has no reason to believe the 
allegations put forth in the January 9, 1995 memo, places 
no credence in them, and the memo has not injured or had 
any impact or effect, negative or otherwise, on the 
Complainant's reputation in the view of the Command. The 
Command consider [sic] the January 9, 1995 memo a 
nullity.

* ★ ★

The Command agrees that it will review the circumstances 
which gave rise to this complaint, including the January 
9, 1995 memo, to determine if there was any improper
personal conduct, to include instances of false and 
malicious statements or attempts at character 
assassination, involved.

J.A. A-64.

6



In violation of the regulations governing EEO procedures, and 

in stark contrast to its treatment of Mr. Martin, the agency did 

not accept or act promptly on Ms. Fiorillo's April, 1995 complaint. 

Her first contact with the EEO office was in April for counseling, 

but a counselor was not assigned to her. J.A. A-15. It was not 

until September 6, 1995, and only after the insistence of 

plaintiff's counsel, that the EEO Officer provided plaintiff with 

written notice of her right to file an EEO complaint. J.A. A-16. 

At the meeting on September 6, the EEO Officer asked plaintiff to 

sign receipts stating that she received the notification on July 
27, 1995, but plaintiff refused to do so. J.A. A-17.

Plaintiff filled out an EEO complaint form on September 6 and 
gave it to the EEO Officer. J.A. A-17. The EEO Officer stated 

that he would forward the complaint to the Department's Regional 

Office expeditiously, but in fact never did forward the complaint 

either to the local Commandant or to the Department of 

Transportation. Numerous calls by plaintiff and her counsel to 

the EEO Officer to find out whether he had processed and forwarded 

the complaint got no response. Finally, plaintiff's counsel sent 

a- copy of the complaint to the Department of Transportation's 
Regional Office in December, 1995. J.A. A-17 to A-18.

During the delay in processing plaintiff's complaint, as 

described above, the Agency settled Mr. Martin's EEO complaint on 

terms favorable to him in October, 1995. In contrast, on February 

26, 1996, the Department of Transportation dismissed three of the 

four allegations of plaintiff's complaint. J.A. A-35 to A-39.

7



Allegation three, which alleged retaliation by plaintiff's 

supervisor, Mr. Martin, through his filing an EEO complaint based 

on her having complained of discriminatory treatment at his hands, 

was rejected as not stating a claim cognizable under Title VII of 

the Civil Rights Act of 1964, as amended, or the Age Discrimination 

in Employment Act. J.A. A-37. The one allegation that was 

accepted as timely and as being cognizable under the regulations 

was a claim that plaintiff was discriminated against when she 

received a performance rating that was lower than she merited. 

J.A. A-36. Plaintiff filed her complaint in district court within 

ninety days of the rejection of the first three allegations, as 

required by 42 U.S.C. § 2000e-l6(c) . The complaint was amended to 

include the fourth allegation after 180 days had passed without a 

decision from the agency, as provided by § 2000e-16(c). 

Subsequently, a Second Amended Complaint was filed. J.A. A-8 to A- 
22 .

In her complaint, plaintiff alleged that she had been 
discriminated against "in the terms and conditions of her 

employment on the basis of her sex" and that this discrimination 

"includes defendant's processing of Martin's (a male) EEO complaint 

against plaintiff, in a favorable manner while failing and refusing 

to process her complaint properly." J.A. A-20. The complaint 

further alleged that plaintiff had suffered injury and damages, and 
specifically that:

As a result of defendant's dilatory and unreasonable 
delay in processing plaintiff's EEO complaint, plaintiff 
was seriously prejudiced and suffered stress, anxiety and 
a significant deterioration of her medical condition.

J.A. A-18. Further, these actions were alleged to be "part of a

8



continuing pattern of discrimination and retaliation taken against 

plaintiff because of age, sex and because she has attempted to and 

has complained of acts of discrimination and reprisal." id.

As described above, the district court dismissed those claims 

of plaintiff relating to the processing of her and Martin's EEO 

complaints as not actionable under Title VII. in its decision, the 

court focused on the filing of Martin's EEO complaint as being an 

act of retaliation in isolation. It did not address her claim that 

the agency had discriminated against her because of her sex and in 

retaliation when it treated her complaint differently from that of 

Martin's, and that the discrimination and retaliation caused her 

injury in the form of stress, anxiety, that exacerbated her medical 

condition and that gave rise to a claim for compensatory damages. 
J.A. A-90 to A-93.

The only claims at issue in this appeal are those relating to 

the agency's treatment of plaintiff-appellant's EEO complaint as 

compared to its favorable resolution of Martin's complaint against 
her, since the remaining claims were voluntarily dismissed by 
plaintiff-appellant.

STATEMENT OF THE ISSUE PRESENTED

Did the lower court err by dismissing plaintiff-appellant' s 
claims that she had been discriminated against because of her sex 

and in reprisal in that her male supervisor's EEO complaint against 

her was accepted and resolved favorably in an expeditious manner, 

while her EEO complaint was not processed in accordance with EEO 

regulations and that, as a result, she suffered damages?

9



SUMMARY OF ARGUMENT
I .

The district court erred in holding that plaintiff-appellant 
did not state a claim under Title VII when she alleged that she had 

suffered discrimination based on her sex and in reprisal because of 

the failure of the agency to process her complaint of 

discrimination in accord with the applicable regulations and in 

contrast to its treatment of the complaint of her male supervisor. 

Title VII, as amended by the Equal Employment Opportunity Act of 

1972, imposes special obligations on federal agencies, in contrast 

to private employers and state and local governments, to enforce 

the protections against discrimination in employment through fair, 

impartial, and prompt processing of internal EEO complaints. The 

defendant agency failed to carry out this duty and, indeed, was 

guilt of intentional discrimination and reprisal in that failure. 

Plaintiff-appellant has alleged that she suffered injury because of 

the discriminatory actions of the agency and seeks compensatory 

damages under Title VII. These allegations state a cause of action 
against the defendant.

II .

Plaintiff-appellant has also stated a claim under the 

Administrative Procedure Act and other statutes providing review of 

agency action and inaction. The fact that Title VII is the

exclusive remedy for claims of discrimination covered by Title VII 

does not bar federal employees from bringing other claims based on 

an agency's failure to carry out its statutorily mandated duties to 
enforce the anti-discrimination laws.

10



ARGUMENT
INTRODUCTION

Although this appeal involves technical questions about the 

federal EEO process, it raises extremely important issues. A 

federal employee sought, both informally and through statutorily 

mandated EEO procedures, to have problems that she experienced on 

the job addressed. Her supervisor countered with a wholly spurious 

EEO complaint against her, claiming that she had discriminated and 

retaliated against him by raising questions about his supervision 

of her. The EEO process, the purpose of which is to enable federal 

employees to have legitimate complaints determined in a fair, 

impartial, and prompt manner, was turned on its head by the agency, 

which accepted and settled the supervisor's complaint while 

delaying, obstructing, and eventually dismissing, in large part, 

her complaint. If the decision below stands, it will result in a 

open season on any federal employee who has the temerity to accuse 
a supervisor of discrimination.

The claim of plaintiff-appellant is simple. She alleges that 

she suffered injury to her health through stress and anxiety when 

she was discriminated against because of her sex and when she was 

retaliated against because she complained about that 
discrimination.

Even though the nature of the discrimination and reprisal was 

not of the ordinary kind, she is entitled to an appropriate remedy. 

She contends that the federal agency which employs her 

discriminated against her by not processing her EEO complaint as 

required by 42 U.S.C. § 2000e-16 and the regulations implementing

11



it, while, at the same time, accepting and resolving favorably the 

retaliatory complaint that her male former supervisor made against 

her. The failure and refusal to treat her on an equal basis, she 

claims, caused her injury for which she seeks compensatory damages.

Of crucial importance in this case is the fact that the 

plaintiff-appellant is an employee of an agency of the federal 

government. Under both the statute and the governing regulations, 

a federal agency, as an employer, is under different obligations 

than are private companies or state and local government entities. 

It has an obligation to enforce Title VII and the other employment 

discrimination statutes in a fair and nondiscriminatory manner. It 

is the Department of Transportation' s utter and egregious failure 

to carry out its statutory and regulatory duties that gives rise to 
the claims of Ms. Fiorillo.

I .
PLAINTIFF-APPELLANT HAS STATED CLAIMS UNDER TITLE V II

^  The Statute and Regulations Impose an Affirmative Obligation 
on Federal Agencies to Enforce Title VII

In its decision, the district court relied on a recent 

decision of this Court holding that the Equal Employment 

Opportunity Commission cannot be sued under Title VII for an 

alleged improper processing of a complaint of discrimination. Baba 

v. Japan Travel Bureau International. Inc.. Ill F.3d 2, 6 (2d Cir. 
1997). J.A. A-92. This reliance was misplaced.

Title VII, of course, gives an employee rights against an 

employer, not against an independent regulatory agency such as the

12



EEOC for its alleged failure to carry out its duties.3 In this 

case, the plaintiff alleges a violation of her rights by her 

employer, and not by a third-party agency. Thus, the issue here is 

whether her employer, the Department of Transportation, failed in 

a duty owed to her by virtue of the obligations imposed by Title 
VII on federal agencies.

Section 2000e-16 broadly prohibits discrimination in the

federal service, and gives the Equal Employment Opportunity

Commission4 authority to enforce the statute by, inter alia.

issuing "such rules, regulations, orders and instructions as it

deems necessary and appropriate." 42 U.S.C. § 2000e-16(b). The
statute further requires that:

The head of each . . . department, agency, or unit shall
comply with such rules, regulations, orders, and 
instructions . . . .

The statute makes explicit the "primary responsibility" of 

government agencies and officials "to ensure nondiscrimination in 

employment as required by the Constitution and statutes" and 
Executive Orders. 42 U.S.C. § 2000e-16(e).

The regulations of the EEOC that all government agencies are 

mandated by statute to comply with detail the procedures the

"Title VII and other anti-discrimination laws also prohibit 
discrimination by other employment entities such as unions and 
employment agencies. The EEOC does not come within the definition 
of such entities.

4The Equal Employment Opportunity Act of 1972 originally 
vested authority in the Civil Service Commission. This authority 
was transferred to the Equal Employment Opportunity Commission by 
Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 Stat. 3781 
(Feb. 23, 1978). See Lindemann and Grossman, Emolovment 
Discrimination Law (3d Ed. 1996), p. 1542-44, for a history of the 
administrative enforcement of Title VII in the federal sector.

13



agencies must follow, 

each agency shall:
29 C.F.R. § 1614.102(a) (2) requires that

Provide for the prompt, fair and impartial processing of 
complaints in accordance with this part and the 
instructions contained in the Commission's Management 
Directives;

The EEO Director of the agency is responsible for:

Assuring that individual complaints are fairly and 
thoroughly investigated and that final decisions are 
issued in a timely manner in accordance with this part.

29 C.F.R. § 1614.102(c)(5).

The first step in the process is for an employee to consult an 

EEO counselor within 45 days of the date of "the matter alleged to 

discriminatory" or, if the complaint concerns a personnel 

action, within 45 days of the effective date of the action. This 

time limit may be extended or waived under appropriate 
circumstances. 29 C.F.R. § 1614.105(a)(1) and (2).

The time for counseling is brief. Unless the aggrieved person 

agrees in writing to a longer counseling period, which additional 

period can be "no more than 60 days" in any event (29 C.F.R § 
1614.105(e)),

[T] he Counselor shall conduct the final interview with 
the aggrieved person within 30 days of the date the 
aggrieved person brought the matter to the Counselor's 
attention. If the matter has not been resolved, the 
aggrieved person shall be informed in writing by the 
Counselor, not later than the thirtieth day after 
contacting the Counselor, of the right to file a 
discrimination complaint. The notice shall inform the 
complainant of the right to file a discrimination 
complaint within 15 days of receipt of the notice

29 C.F.R. § 1614.105(d). The agency is to acknowledge receipt of

the complaint in writing and inform the complainant of the date on
which the complaint was filed. 29 C.F.R. § 1614.106(d).

14



If a complaint is accepted, a "complete and fair 

investigation" must be completed within 180 days of the filing of 

the complaint, unless the parties agree in writing to extend the 

period. However, the agency shall dismiss a complaint or a portion 

of a complaint that "fails to state a claim under § 1614.103." 29 

C.F.R. § 1614.107(a). Section 1614.103, in turn, provides for 

individual complaints of employment discrimination and retaliation 

"prohibited by title VII," the ADEA, and other statutes. It 

further states that Part 1614 applies "to all employment policies 
or practices affecting employees." 29 C.F.R § 1614.103(a) and (c).

It is clear from the regulations that the enforcement scheme 
for federal employees is radically different from that for private 

or state or local government employees. The process is more 

formal, time periods are strict and must be complied with, and 

there is the opportunity for an administrative adjudication by an 

EEOC administrative judge after a formal investigation by the 

agency. 29 C.F.R. §§ 1614.108 and 1614.109. A crucial distinction 

is that the agency, the employer itself, has an affirmative 

obligation to receive complaints, process them fairly and promptly, 

and to enforce the EEO laws essentially against itself by 

determining whether discrimination has occurred and granting relief 

where it has, including providing compensatory damages in where the 

complainant shows that such damages have been caused by the alleged

15



discrimination.5

The purpose of the enforcement procedures is to provide

federal employees with a fair, impartial, speedy, and effective

administrative remedy for claims of employment discrimination.

The Supreme Court has explained that section 2000e-16 was enacted,

in substantial part, because of the perceived ineffectiveness of

the existing administrative remedies within the federal system.

Brown v. G .S .A ,, 425 U.S. 820, 825-26 (1977).6 The Court noted in

Chandler v. Roudebush. 425 U.S. 840, 849 (1977), "federal

employees' lack of adequate internal safeguards against employment
discrimination" and cited the Senate Report's statement that:

The testimony before the Labor Subcommittee reflected a 
general lack of confidence in the effectiveness of the 
complaint procedure on the part of Federal employees. 
Complaints have indicated skepticism regarding the [Civil 
Service] Commission's record in obtaining just resolution 
of complaints and adequate remedies. This has, in turn, 
discouraged persons from filing complaints . . . for fear
that— doing_so will only result in antagonizing their
supervisors . . . .

Id • at n . 9 (quoting S. Rep. No. 415, 92d Cong., 1st Sess. 14)

"See, Spriggs, Representing Plaintiffs in Title VII Actions. 
Chapter 9, "Peculiarities of the EEO Process for Federal 
Employees", p p . 350-51 (Wiley Law Publications, 1994), quoting
Jackson v._Runyon, Postmaster General. EEOC Appeal No 01923399
(Nov. 12, 1992) :

Where the complainant shows objective evidence that he or 
she has incurred compensatory damages, and that the 
damages are related to " the alleged unlawful 
discrimination, the agency must address the issue of 
compensatory damages in its offer of full relief.

6See also Sperling v. United States. 515 F.2d 465, 470 (3d 
Cir. 1975), cert, denied. 426 U.S. 919 (1976); Grubbs v. Bntz. 514 
F.2d 1323, 1328 (D.C. Cir. 1975); Hacklev v. Roudebush. 520 F.2d 
108, 124-25, 137-41 (D.C. Cir. 1975); Clark v, Chasen, 619 F 2d 
1330, 1332-33 (9th Cir. 1980).

16



(emphasis added).7 The Senate Report also specifically noted the 

problem that arose from agencies being responsible for 

investigating and judging themselves. S. Rep. No. 415, 92d Cong., 
1st Sess. 14.

Thus, section 2000e-16 had the dual purpose of strengthening 

the administrative process and of providing, for the first time, 

the clear right to file an action in federal court if full relief 

was not obtained administratively. Brown v. GSA. at 826-27. See 

also, Lindemann and Grossman, Employment Discrimination Law, pp. 
1542-44 .

Dissatisfaction with the internal administrative complaint 

process persisted, however,6 and led to the transfer of authority 

over it from the Civil Service Commission to the EEOC in 1978. id. 

at 1543. Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 

Stat. 3781 (Feb. 23, 1978) . One reason for strengthening the

The Supreme Court also cited the remarks of Senator Dominick 
during the floor debates in reference to "the Federal employee 
situation:"

"As I said earlier, it seems wrong to me to say to an 
aggrieved employee, 'Certainly we will hear your case.
We will do the investigating. We will bring the charges.
We will do everything else, but you will not get a 
decision for over 2 years.' That is not justice. This 
is not equal employment opportunity."

425 U.S. at 856-57.

eSee The Federal Civil Rights Enforcement Effort — 1974. 
Volume V, To Eliminate Employment Discrimination. A Report of the 
United States Commission on Civil Rights, July 1975, p. 85:

[I]t is clear that Federal Title VII complainants face 
severe disadvantages throughout the complaint process.
The allegedly discriminatory agency not only has control 
over the content of the complaint's allegations but over 
the investigation as well.

17



administrative process for federal employees was a recognition 

that, given the expense of federal court litigation and the burdens 

on the federal courts, for most federal employees "the one hope of 

obtaining relief is through an effective administrative process." 

See "Hearings on Reorganization Plan No. 1 of 1978" before the 

Committee on Governmental Affairs United State Senate (95th Cong., 
2d Sess.), p . 779.

A federal employee must exhaust this "rigorous" administrative 

process as an absolute precondition to coming to court with a claim 
of employment discrimination under Title VII. Brown v. G.S.A.. at 

833-34. This is because of the "crucial administrative role that 

each agency together with the [EEOC] was given by Congress in the 

eradication of employment discrimination." Id. at 833. Thus, 

2000e-16 is based on reciprocal obligations of a federal agency 

employer and a federal employee -- the former must provide an 

impartial process that will address EEO complaints promptly with 

the fair hope of an effective remedy, and the latter must first 

resort to that process to obtain relief from discrimination. Anne 

Fiorillo met her obligation; the Department of Transportation 
grossly failed in its obligation, to her injury.

The Defendant Agency Discriminated Against Plaint if f-Appellant
In Its Failure to Follow The Requirements of 42 U.S.C S
2000e-16 and 29 C.F.R. Part 1614.

The abject failure of the defendant-appellee to meet its 

statutory and regulatory obligations towards plaintiff-appellant is 
clear, unexplained, and inexcusable.

As noted above, the agency was required to provide Ms. 

Fiorillo with EEO counseling promptly and during a period of no

18



more than 30 days, unless she agreed in writing, to an extension 

that could be no more than 60 days. Ms. Fiorillo went to the EEO 

Officer, Mr. Whack, on April 6, 1995, and told him that she wished 

to file an EEO complaint. Mr. Whack did not assign an EEO 

counselor, but undertook to "handle" her complaint himself. j .a . 

A-15 to A-16. He failed to provide her with written notification 

of her rights at the initial counseling session as required by 29 

C.F.R. § 1614.105(d). J.A. A-16. The "counseling" process was not 

brought to a close by Mr. Whack in 30 days, as required by the 

regulations, and Ms. Fiorillo never agreed in writing, or in any 

other fashion, to an extension. Rather, it was only upon the 

insistence of her counsel that Mr. Whack finally provided plaintiff 

with written notification of her rights and her right to file a 

discrimination complaint on September 6, 1995, at a meeting during 

which he tried to get M s . Fiorillo to sign receipts stating that 

she had received the documentation on July 27. J.A. A-16 to A-17. 

Under the regulations, a formal written complaint can only be filed 
after the completion of pre-complaint counseling. Thus, because of 

the actions of the agency's local EEO Officer, instead of being 

able to file a written complaint within 30 days of April 6, when 

she first attempted to consult an EEO counselor, Ms. Fiorillo was 

able to file after a delay of five months, during which no 
effective counseling took place at all.

The delay was extended, however, by the further actions of Mr. 

Whack. He did not, as he represented, forward the complaint to the 

agency's regional office for processing. After numerous calls to 

Mr. Whack to determine whether he had processed and forwarded the

19



complaint, plaintiff's counsel sent the complaint to the regional 

office in December, 1995. J.A. A-18. Thus, Whack's actions in 

failing to provide counseling, in failing to provide Ms. Fiorillo 

with information concerning her rights, in failing to timely 

conduct a final counseling session and provide her with a notice of 

her right to file a formal written complaint, and in failing to 

process her complaint once it was filed violated 29 C.F.R. § 
1614.105(g):

The Counselor shall not attempt in any way to restrain
the aggrieved party from filing a complaint.

(Emphasis added.)

The agency did not simply fail in its duty to process 

plaintiff's complaint, however. Its failure was not due to 

inadvertence, negligence, or carelessness, but, it is alleged, was 

an act of discrimination and retaliation. At the same time that it 

was not processing Ms. Fiorillo's complaint, it was settling her 

superior's complaint against her on terms favorable to him and 
detrimental to her. In addition to failing to provide counseling 

and to permit a formal complaint to be filed, the two complaints 
were treated substantially differently once they were filed.

As discussed above, the regulations permit a complaint to be 
dismissed if it does not state a claim under Title VII or one of 

the other EEO statutes. Thus, Ms. Fiorillo's claim regarding the 

EEO complaint filed by Mr. Martin against her was dismissed on the 

grounds she had not suffered any adverse employment consequences as 

a result of it. On the other hand, Mr. Martin's complaint against 

her was accepted and settled, without any explanation of how and in 

what way he had suffered any adverse employment consequences as a

20



result of anything she, his subordinate, had done. Indeed, since 

Title VII has repeatedly been held to permit claims only against a 

person's employer, and not even against a person's supervisor,3 it 

is difficult indeed to understand how Mr. Martin's complaint 

against his subordinate could possibly have been viewed to state a 

claim under Title VII and why it was not dismissed pursuant to 29 
C.F.R. § 1614.107(a) as was Ms. Fiorillo' s .10

Mr. Martin's complaint was not dismissed, but was settled with 

an award of compensatory time and a pledge to review Ms. Fiorillo's 

actions, including her memorandum of January 9, 1995, to see if she 

was guilty of any "improper personal conduct." The settlement with 

Mr. Martin was signed on behalf of the agency on October 11, 1995, 

by the same Mr. James Whack, the installation's Civil Rights 

Officer, who was simultaneously obstructing the processing of Ms. 
Fiorillo's complaint.

The district court below interpreted plaintiff's claim to be 

that the filing of the EEO complaint by Mr. Martin was itself an 

adverse employment action that gave rise to a claim under Title 

VII. This was in error, for Ms. Fiorillo did not seek to state a 

claim against Mr. Martin or to obtain relief against him for having

''Tomka v. Seiler Corp, . 66 F.3d 1295, 1313-17 (2d Cir. 1995),
citing Miller v. Maxwell's Int'1. Inc.. 991 F.2d 583, 587 (9th Cir! 
1993) ("[I]t is inconceivable that Congress intended to allow civil 
liability to run against individual employees."); see also. Grant 
v. Lone Star Co., 21 F.3d 649, 652-53 (5th Cir. 1994) ; Smith'v. St 
Bernards Regional Medical Ctr.. 19 F.3d 1254, 1255 (8th Cir. 1994);
Sauers v._Salt Lake County, 1 F.3d 1122, 1125 (10th Cir 1993)’
Busby v. City of Orlando. 931 F.2d 764, 772 (11th Cir. 1991).

^Supervisors, of course, share an agency's responsibility to 
process and cooperate in the resolution of EEO complaints, not to 
retaliate against their subordinates who file complaints against 
them.

21



filed his complaint. Rather, her claim was, properly (and in 

contrast to Mr. Martin's) against the employing agency for its 

actions in discriminatorily refusing and failing to process her 

complaint and in retaliating against her. So viewed, plaintiff 
stated a cause of action under Title VII.

Plaintiff Has Stated a Cause of Action Against the Defendant
for Discrimination and Retaliation in Violation of Title VII

In brief, plaintiff-appellant has alleged: (1) that the

defendant, a federal agency, discriminated against her because of 

her sex and in retaliation for having raised claims of 

discrimination; and (2) that the discrimination caused her anxiety, 

stress, and exacerbated her medical condition, thus giving rise to 

compensatory damages. The district court held that she had not 

stated a claim based on cases holding that the EEOC cannot be sued 

by a private employee for failing to properly investigate or 

process a complaint of discrimination (Baba v. Japan Travel Bureau 

International, Inc.. Ill F.3d 2 (2d Cir. 1997)), and that federal
government agencies cannot also be so sued (Young v. Sullivan. 733 

F. Supp. 131, 132 (D.D.C. 1990), aff'd , 946 F.2d 1568 (D.C. Cir.

1991), cert, denied. 508 U.S. 918 (1992); Olivares v. NASA. 934 F. 

Supp. 698, 704 (D. M d . 1996). J.A. A-92 to A-93. None of these
cases are apposite.

As noted above, Baba involved the question of whether an 

independent, third-party enforcement agency could be held liable 

for allegedly negligently processing a complaint against a private 

employer. In the present case, plaintiff-appellant is suing her 

employer, a federal agency, for discriminatorily failing in its 

statutory duty to enforce the EEO laws, to her detriment. Young

22



and Olivares did not allege that the failures of the agencies were 

discriminatory, but only that they negligently or improperly 

carried out their EEO duties. Here, on the other hand, plaintiff 

alleges that her employer was intentionally discriminatory and 

retaliatory in the manner in which it treated her EEO complaint as 

compared to its treatment of the EEO complaint of her male 
supervisor.

Much more analogous to the present case is the Supreme Court's 

decision in Goodman v, Lukens Steel Co.. 482 U.S. 656 (1987). In 

Goodman the Court held that a union had discriminated against 

African-American workers in violation of Title VII when it failed 

and refused to include claims of racial discrimination in 

grievances. 482 at 667-69. Such conduct "intentionally 

discriminated against blacks seeking a remedy for disparate 

treatment based on their race and violated . . . Title VII." 482 

at 669. Here, plaintiff-appellant alleges that the agency, in 

violation of its statutory and regulatory obligations, failed and 
refused to accept and process properly her complaint of 

discrimination based on sex and retaliation while accepting and 

settling a complaint brought against her by her male supervisor. 

Thus, she was intentionally discriminated against when she sought 

"a remedy for disparate treatment" based on her sex and reprisal, 

and, pursuant to Goodman, stated a cause of action under Title 
VII .11

“Goodman involved an admitted practice of refusing to accept 
"any and all grievances" raising claims of racial discrimination 
(482 U.S. at 669), while the present case presents a single 
instance of discriminatorily refusing to process properly a 
discrimination complaint. This difference goes to the issue of

23



The district court also suggested that Ms. Fiorillo suffered 

no harm because she could come into federal court and litigate the 

merits of her underlying EEO claims. But Ms. Fiorillo alleges that 

she suffered injury because of the agency's discrimination in its 

treatment of her EEO claim; she seeks compensatory damages for that 

injury. The fact that she could also litigate her other EEO claims 

in no way can compensate for the injury she suffered because of the 

agency's discrimination and retaliation during its failure to 
process her administrative complaint.

Of great importance is the undeniable consequence of the 

district court's ruling that a federal employee has no remedy for 

an agency's flouting of its clear obligations to enforce the EEO 

rights of its employees. As discussed above, a central purpose 

behind the requirement that federal employees exhaust the 

administrative remedies provided by statute and regulations is that 

EEO complaints will be resolved fairly, impartially, and promptly 

by federal agencies without the necessity of an action in federal 
court. The decision of the district court, if left undisturbed, 

will send a message to federal agencies that they may ignore the 

commands of Title VII and the EEOC with impunity and, indeed, may 

visit upon its employees discrimination and retaliation during the

proof of plaintiff's claim, however, not whether she has stated a 
claim in the first instance. At trial, the agency's failure to 
follow proper and established procedures when she attempted to 
lodge a complaint will be strong evidence of intentional 
discrimination. See, Arlington Heights v. Metro Housing Corp. 429 
U.S. 252, 267 (1977) ("Departures from the normal procedural 
sequence also might afford evidence that improper purposes are 
playing a role."); Hogan v. Pierce. 31 FEP Cases 115, 126 (D.D.C. 
1983) ("Serious and substantial deviations" by a federal agency 
from procedures mandated by law and regulations are indicia of 
discrimination.)

24



EEO process. It will send a message to federal agency supervisory 

personnel that they can utilize the EEO process, whose purpose is 

to protect employees, to retaliate against a subordinate who has 

the temerity to file a complaint alleging discrimination by them.

Finally, the decision below will send a message to federal 

employees that they can expect no recourse from their employing 

agency, and that their only hope of obtaining a fair and impartial 

hearing on their complaints of discrimination will be do abandon 

the administrative process at the earliest possible date (180 days 

after filing their EEO complaint) and file in federal court. These 

messages will simultaneously undermine the Congressional purpose in 

enacting section 2000e-16 and increase the burden on an already 
over-burdened federal judiciary.

I I .
PLAINTIFF HAS STATED CLAIMS UNDER THE APA AND THE MANDAMUS ACT

The complaint in this case also stated causes of action under 

the Administrative Procedure Act and the Mandamus Act, seeking 
declaratory and possibly injunctive relief as to the failure of the 

agency to follow law and regulations in the processing of her EEO 

complaint. The district court dismissed these claims on a number 

of grounds: (1) Title VII was the exclusive remedy for a claim of

discrimination, citing Brown v, G.S.A.. supra. and, to the extent 

that was the basis of plaintiff*s claim it could not be raised 

under the APA; (2) there was no final agency action without another 

adequate remedy in a court, since plaintiff could file suit under 

Title VII for an adjudication of the merits of her discrimination 
claims. J.A. A-93 to A-94.

25



With regard to the applicability of Brown v. G .S .A . that 

decision is limited to claims of discrimination cognizable under 

Title VII. Thus, for example, the Supreme Court, following Brown, 

held that federal employees who were not covered by Title VII, 

specifically employees of a Congressional office, could bring a 

claim of discrimination directly under the Constitution. 1 Davis v. 

Passman, 442 U.S. 228, 234 (1979) .12 Consistent with Davis. courts 

have permitted actions under the A.P.A. to review agencies' 

failures to follow regulations. See. McKenna v. Weinberger. 729 

F.2d 783, 791 (D.C. Cir. 1984) (district court erred in dismissing 

a separate claim under the A.P.A. for failure to follow the 

agency's own rules); Houseton v. Nimmo. 670 F.2d 1375, 1377 (9th 

Cir. 1982) (an APA action lies to enforce a CSC/EEOC decision 

granting relief against the agency); Kulkarni v. Hoffman. 22 FEP 

Cases 1463, 1465 (D.D.C. 1976) (the exclusive remedy of § 2000e-16 

does not bar an action under the APA for the purpose of determining 

whether the agency complied with the regulations' requirement that 
it issue a timely final decision) . See also. Barrett v , civil

Service_Commission. 69 F.R.D. 544 (D.D.C. 1975), in which the

court, in an action brought under Title VII, issued a declaratory 

judgment, pursuant to 28 U.S.C. §§ 2201 and 2202, that the Civil 

Service Commission's refusal to accept and process class claims of 
discrimination violated section 2000e-16.

12In 1995, subsequent to the decision in Davis v. Passman, the 
protections of Title VII and other statutes were extended to 
Congressional employees by the Congressional Accountability Act of 
1995, Pub. L. No. 104-1. This statute now provides the exclusive 
remedy for the employees it covers. Id. at § 225.

26



The essential point with regard to both bases for the district 

court's decision is that plaintiff is left with no remedy at all 

for her allegations of improper action and inaction by the agency. 

According to the court below, she cannot bring it under Title VII 

because she has not stated a cause of action under that statute,- 

she cannot bring it under the APA (or, by implication, the Mandamus 

Act), because Title VII is the exclusive remedy for claims of 

discrimination even though it is not a remedy available to her,- she 

cannot bring an action under the APA because she can bring a Title 

VII action with regard to her underlying discrimination claims, 

even though she cannot litigate in that action her claims with 
regard to the processing of her EEO complaint.

Leaving plaintiff-appellant with no remedy whatsoever for the 
injury she has suffered at the hands of the agency is not required 

by law, justice, or reason. Not only will such a result damage Ms. 

Fiorillo, it will drastically undermine the efficacy of the EEO 

laws and regulations, whose purpose and design is to protect 
federal employees, by permitting those laws to be used as a weapon 

against a subordinate worker who dares to complain about the 
actions of her supervisor.

27



CONCLUSION
For the foregoing reasons, the decision of the court below 

should be reversed and the case remanded for a trial on the merits 
of plaintiff-appellant's claims.

Respectfully submitted

ELAINE R . JONES 
Director-Counsel
THEODORE M . SHAW 
NORMAN J. CHACHKIN 
CHARLES STEPHEN RALSTON 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

GEOFFREY A. MORT 
GOODMAN & ZUCHLEWSKI 
500 Fifth Avenue 
Suite 500
New York, NY 10110 
(212) 869-1940

Attorneys for Plaintiff- 
Appellant

28



CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing BRIEF FOR 

PLAINTIFF-APPELLANT, have been served by depositing same in the 

United States mail, first class postage prepaid, on this 18th of 
March, 1998, addressed to the following:

JENNIFER K. BROWN, Esq.
Assistant United States 
Attorney
United States Attorney 
Southern District of New York 
100 Church Street 
New York, NY 10007

CHARLES STEPHEN RALSTON