Egei v. Napolitano

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

OMINOBA EGEI,

Plaintiff,

v. Civil Action No. 15-434 (RDM)

JEH C. JOHNSON, Secretary of Homeland

Security,

Defendant.

MEMORANDUM OPINION

This Title VII retaliation action turns on whether an employer may lawfully fire an

employee for making false or malicious accusations during the course of Equal Employment

Opportunity (“EEO”) proceedings. The plaintiff, Ominoba Egei, alleged in 2009 that she had

been sexually harassed by a supervisor while working at the Federal Emergency Management

Agency (“FEMA”). When Egei brought an administrative complaint under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seq., she submitted written and oral testimony under

oath making the same allegations. The administrative law judge found that Egei’s allegations

were not credible, and rejected her claim. A year and a half later, FEMA terminated Egei’s

employment on the ground that she had lied in the course of the EEO proceeding that she had

initiated in 2009. Egei then brought a second EEO complaint, and now this action, alleging that

her termination was retaliatory.

The case is now before the Court on FEMA’s motion to dismiss or, in the alternative, for

summary judgment. Dkt. 9. Because the Court concludes that Title VII’s participation clause

protects an employee from adverse employment action taken on the basis of the substance of her

testimony in a Title VII EEO proceeding, it will deny FEMA’s motion and will grant partial

summary judgment—limited to the question of liability—to Egei. The question of remedy,

however, remains, and will require further proceedings.

I. BACKGROUND

A. Egei I

Egei was hired by FEMA in August 2007 as a disaster assistance employee, a temporary

position for workers who could be deployed quickly and temporarily to disaster areas. See Dkt.

9-2 at 1 (Def.’s Statement of Material Facts (“SMF”) ¶ 1). In September 2008, Egei was sent to

Houston, Texas, to work as a community relations specialist in the wake of Hurricane Ike. Dkt.

9-4 at 3 (Def.’s Mot. Summ. J., Ex. A) (“ALJ Decision”). Her supervisor in Houston was Jean

Jacques Fequiere. Id. According to FEMA, Egei’s tenure in Houston was a turbulent one. She

was initially assigned to work with Pamela Stevenson, another FEMA employee, but Stevenson

asked for a new partner after only two days, explaining that she could not work with Egei, whom

she found “very demanding and rude.” See Dkt. 9-5 at 176–78 (Def.’s Mot. Summ. J., Ex. B, at

175–77) (Hearing Transcript (“Hr’g Tr.”)). Beverly Winder, Egei’s second partner, also testified

that Egei was difficult to work with, citing her “unusual behavior” and “lack of professionalism.”

Id. at 147–49 (Hr’g Tr. 146–48).

Near the end of her time in Houston, in mid-October, Egei alleges that she was sexually

harassed by Fequiere. Egei alleges that, on or around October 16, Fequiere asked her to remain

in his hotel room after her fellow FEMA workers had left, and then suggested that she return in

the evening to give him a massage. See Dkt. 9-7 at 8 (Def.’s Mot. Summ. J., Ex. D, at 8) (“Egei

Interrog.”). The next day, she alleges, Fequiere called her in the evening and asked her to come

to his hotel in order to run an errand. Id. at 7. According to Egei, however, when she arrived at

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his room, he emerged from his bathroom “half naked” and asked her to shower with him. Id. at

7–8. When he refused, she claims, he threatened to terminate her, saying, “You might be going

home.” Id. at 8. When she continued to refuse Fequiere’s advances, he allegedly instructed her

to take him to a strip club. Id. at 8–9. Ultimately, Egei claims, she drove Fequiere to a nearby

print shop, where he obtained directions first to a strip club and then to a nightclub. Id. at 9–10.

Egei alleges she drove Fequiere to the nightclub, which was closed, then to a local Wal-Mart,

and finally back to his hotel, where she left him without incident. Id. at 10.

Sometime between October 18 and 20, Egei was told that she would be “right-sized,” or

sent home from Houston to await another assignment. 1 See Dkt. 9-5 at 55 (Hr’g Tr. 55) (Egei’s

testimony) (identifying date as October 18); id. at 199 (Hr’g Tr. 198) (John Aker’s testimony)

(identifying date decision was made as October 18 and date of “right-siz[ing]” as October 20);

id. at 257 (Hr’g Tr. 256) (Fequiere’s testimony) (stating that he received an e-mail from Aker

regarding Egei’s right-sizing on October 18 and put the e-mail in Egei’s “folder”). On or after

that date, Egei reported the alleged harassment to the wife of Fequiere’s supervisor, John Aker.

Id. at 200 (Hr’g Tr. 199) (Aker’s testimony) (reporting that Egei contacted his wife on Sunday,

October 20); id. at 53–55 (Hr’g Tr. 53–55) (Egei’s testimony) (testifying that she called Aker’s

wife the morning after the incident, which she agreed would have been October 18). Egei does

1

Although disaster assistance employees are “carried on FEMA personnel rolls for a 24-month

period” and are “automatically reappointed at the end of each appointment period,” they work

(and are paid) only when they are “activated” for specific assignments. See Dkt. 9-10 at 4–6

(Def.’s Mot. Summ. J., Ex. G) (“FEMA Instruction 8600.1”). The process of deactivating a

disaster assistance employee—i.e., sending her home and making her available to be re-

deployed—is commonly known as “right-sizing.” See Dkt. 9-5 at 203–04 (Hr’g Tr. 202–03).

Although the disaster assistance employee program was modified in 2012, see Dkt. 9-1 at 4, the

policies regarding the program remain “applicable to Disaster Assistance Employees” who, like

Egei, were “appointed prior to” June 14, 2012, see FEMA Directive 010-6, FEMA Reservist

Program (June 14, 2012), http://1.usa.gov/21Sadf7.

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not contest that she did not report the incident until after she learned she was being right-sized.

Id. at 55–56 (Hr’g Tr. 55–56).

The following month, Egei filed a formal complaint against FEMA under Title VII of the

Civil Rights Act of 1964. See Dkt. 9-13 at 1 (Def.’s Mot. Summ. J., Ex. J). Egei alleged that she

had been subjected to discrimination on the basis of her sex and national origin—and specifically

that she had been harassed by Fequiere and then terminated because she refused to have sex with

him. Id. at 1–2. Egei requested a formal hearing on her complaint before an Equal Employment

Opportunity Commission (“EEOC”) administrative law judge (“ALJ”), and the EEOC held such

a hearing on July 27, 2010. See Dkt. 9-5 (Hr’g Tr.).

At the hearing, Egei’s testimony regarding the incident differed in several ways from the

account she had previously provided. Most significantly, although Egei had stated in her formal

complaint and in response to interrogatories that Fequiere had attempted to have sex with her on

October 17, 2008, FEMA’s counsel impeached her with a government travel voucher showing

that she had picked up a rental car from the airport that evening during the timeframe in which

she alleged she was with Fequiere. See id. at 120–23 (Hr’g Tr. 119–22). Egei’s testimony also

varied from her prior statements in other ways. Although she had stated during a deposition that

Fequiere had walked out of his hotel bathroom naked, she testified at the hearing that Fequiere

had in fact been “half naked.” See id. at 92–93 (Hr’g Tr. 92–93). And although Egei had not

previously made allegations about Fequiere’s conduct before October 16, she testified during the

hearing that Fequiere had made sexual advances as early as October 6 or 7. Id. at 28–29 (Hr’g

Tr. 28–29).

FEMA’s counsel argued that these discrepancies, taken together, established that Egei

had “willfully mis[led] the [C]ommission[] with false testimony,” and requested “sanctions from

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the EEOC for this fraud.” Id. at 20 (Hr’g Tr. 20) (opening statement); see also id. at 123 (Hr’g

Tr. 122); id. at 321–22 (Hr’g Tr. 320) (closing statement) (“What this case comes down to is a

complete fabrication.”). Although the ALJ did not grant FEMA’s request for sanctions, she did

deny Egei’s complaint in a 12-page decision on September 1, 2010. See Dkt. 9-4 (ALJ

Decision). The ALJ relied substantially on the discrepancies between the testimony Egei

presented at the hearing and her prior statements. See id. at 7–9. She reasoned that FEMA’s

documentary evidence was “very powerful,” adding that “[a]s soon as [Egei] was aware of the

evidence she changed her testimony.” Id. at 8. She also reasoned that “the timing of the report

of the incident” suggested that Egei might have raised the charges in order to keep her job. Id. at

9. 2

The ALJ’s decision ended with three “conclusions of law”: (1) Egei “did not show prima

facie cases of national origin, race, sex, or sexual harassment”; (2) the government “showed that

the alleged events did not occur”; and that (3) Egei “did not show that any of the alleged events

occurred because of prohibited reasons.” Id. at 10. FEMA issued a final decision on September

15, 2010, adopting the ALJ’s decision in full. See Dkt. 9-15 at 1–2 (Def.’s Mot. Summ. J., Ex.

L). Egei did not appeal that decision to the EEOC.

B. The Present Case

The present case arises not out of FEMA’s denial of Egei’s first EEO complaint but out

of its subsequent decision to terminate her employment. On February 15, 2012, about a year and

a half after the ALJ’s decision, Egei was told that she would be terminated from her “temporary

2

The ALJ also reasoned that the events that formed the basis for Egei’s national-origin and sex

discrimination claims (as opposed to her sexual harassment claim), even taken as true, “failed to

show harassment.” See id. at 7. Because the current action does not turn on the merits of Egei’s

national-origin and sex discrimination claims, the Court focuses primarily on her sexual

harassment claim.

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appointment as a Disaster Reservist with” FEMA. Dkt. 9-6 at 1 (Def.’s Mot. Summ. J., Ex. C)

(“Termination Notice”). The notice, which was signed by Ronald Wells, the acting chief of

FEMA’s Readiness Unit, listed three grounds for the termination: (1) falsification of records, (2)

lack of candor, and (3) failure to comply with the conditions of her employment. Id. The notice

specified that Egei was being terminated on the basis of the allegations she had made in her 2008

EEO complaint and her sworn testimony before the EEOC ALJ. See id. at 1–2. It detailed the

allegations Egei had made and summarized the ALJ’s decision in the case. Id. at 2. The notice

ended: “The falsification of records, inaccurate statements and lack of candor is unacceptable

behavior which will not be tolerated or condoned.” Id.

On April 12, 2012, Egei filed a second EEO complaint against FEMA, alleging that she

had been retaliated against on the basis of her prior participation in EEO proceedings. Dkt. 9-16

at 1 (Def.’s Mot. Summ. J., Ex. M). Egei initially requested a second EEOC hearing, but later

withdrew her request. Dkt. 9-18 at 1 (Def.’s Mot. Summ. J., Ex. O). FEMA issued its decision

denying her complaint on May 17, 2014. Dkt. 9-19 at 1 (Def.’s Mot. Summ. J., Ex. P) (“FEMA

Decision”). The decision, issued by an employee in FEMA’s Office for Civil Rights and Civil

Liberties, explained that although Egei maintained that her original allegations were truthful, she

had “failed to provide any evidence” to rebut the ALJ’s finding that she had not been harassed

during her Houston deployment. Id. at 5–6. The agency further reasoned that Egei had

failed to produce sufficient evidence to corroborate her position that the Agency’s

decision to terminate her was pretextual. The record is devoid of any persuasive

evidence that unlawful animus was a factor in the Agency’s actions; rather, the

record shows that [Egei’s] “lack of candor” and her failure to “maintain high

standards of integrity [and] conduct” were the reasons for her removal. The

preponderance of the evidence of record supports the Agency’s decision.

Ultimately, Complainant failed to prove FEMA discriminated against her because

of her prior EEO activity.

Id. at 6.

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Egei filed this action pro se on August 8, 2014. Dkt. 1. In her complaint, she alleges that

she had been retaliated against on the basis of her participation in EEO proceedings, in violation

of Title VII of the Civil Rights Act of 1964. Id. at 4. She also accuses FEMA of “defaming her

reputation” and argued that “the sexual harassment did occur.” Id. at 3. FEMA filed a motion to

dismiss or, in the alternative, for summary judgment on July 24, 2015. Dkt. 9. On September 9,

2015, Egei obtained counsel, and her counsel filed an opposition to FEMA’s motion. Dkt. 14.

On March 10, 2016, the Court ordered supplemental briefing on (1) “[w]hether, as a matter of

law, an employee may be subject to an adverse employment action on the basis of false or

malicious statements made during the course of equal employment proceedings”; (2) whether, if

so, such an employee may be subject to such an action “on the basis of the employer’s

reasonable belief that her statements were made falsely or maliciously”; and (3) whether, if not,

judgment should be entered for Egei. Dkt. 18 at 1–2. The parties filed supplemental briefs on

March 25, 2016. Dkts. 19, 20.

II. DISCUSSION

Title VII of the Civil Rights Act of 1964 prohibits an employer from retaliating against

an employee “because [the employee] has opposed any practice made an unlawful employment

practice by this subchapter, or because [the employee] has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42

U.S.C. § 2000e-3(a). This case turns on the proper interpretation of this antiretaliation provision,

which the parties read in dramatically different ways. 3

3

Egei’s pro se complaint also contained allegations that appeared to (a) challenge FEMA’s final

decision in her original EEO proceeding and (b) allege that various statements made by FEMA

were defamatory. Compl. ¶ 15. FEMA briefed these issues in its motion. See Dkt. 9-1 at 15–17.

In her counseled opposition, however, Egei disavowed any intent to pursue these claims, Dkt. 14

at 1–2, and so the Court will not consider them here.

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Egei’s argument is straightforward. She contends that she was terminated on the basis of

her 2008 EEO charge and the testimony she provided in its support. Because Title VII prohibits

an employer from taking adverse employment action “because [an employee] has made a charge

[or] testified” in an EEO proceeding, she argues, FEMA has violated Title VII. FEMA advances

a different understanding of the antiretaliation provision. The agency argues that it did not

terminate Egei because she “made a charge” or “testified” in an EEO proceeding; it terminated

her because she lied during that EEO proceeding. In FEMA’s view, although an employer may

not terminate or discipline an employee on the basis of her participation in EEO proceedings, it

may terminate or discipline her for making false or malicious statements in the course of those

proceedings. Because Title VII does not bar an employer “from taking action where an

employee flagrantly abuses the EEO process . . . by concocting a malicious, false story,” FEMA

argues, Dkt. 19 at 1, it did not violate Title VII when it fired Egei in 2012.

FEMA makes a number of variants on this argument. See Dkt. 9-1 at 18–24 (arguing that

the facts and circumstances surrounding Egei’s termination defeat any inference that it fired her

on the basis of her participation in EEO proceedings rather than the accusations she made during

those proceedings); id. at 24–25 (arguing that, even if Egei’s accusations were not false, FEMA

honestly and reasonably believed that they were). But they all turn on a single question of law:

May an employer lawfully terminate an employee on the basis of false or malicious statements

made during EEO proceedings? This question has divided the courts of appeals. Compare, e.g.,

Glover v. S.C. Law Enf’t Div., 170 F.3d 411, 414–15 (4th Cir. 1999) (holding that an employee

may not be terminated on the basis of statements made during an EEO proceeding), and Pettway

v. Am. Cast Iron Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969) (same), with Mattson v.

Caterpillar, Inc., 359 F.3d 885, 890–91 (7th Cir. 2004) (holding that she may be). The D.C.

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Circuit has not resolved the issue, but has observed in dicta that “[t]he participation clause speaks

in clear, absolute terms, and has accordingly been interpreted as shielding recourse to the EEOC,

regardless of the ultimate resolution of the underlying claim on its merits.” See Parker v. Balt. &

Ohio R.R. Co., 652 F.2d 1012, 1019 (D.C. Cir. 1981) (emphasis added).

For the reasons set out below, the Court concludes, consistent with this dicta and with the

majority of courts to have considered the question, that Title VII protects a claimant who is later

terminated on the basis of the substance of testimony or claims she makes in the course of Title

VII EEO proceedings. Because FEMA concedes that Egei was terminated on the basis of such

statements, the Court will deny FEMA’s motion for summary judgment and will instead enter

partial summary judgment, limited to the question of liability, for Egei.

A. The Circuit Split

Title VII’s antiretaliation provision prohibits an employer from taking action against an

employee because she has either (1) “opposed any practice” prohibited by Title VII or (2) “made

a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing” governed by Title VII. 42 U.S.C. § 2000e-3(a). These two clauses are known as the

“opposition” clause and the “participation” clause, respectively. Parker, 652 F.2d at 1019; see

also 1 Barbara T. Lindemann et al., Employment Discrimination Law 15-3 (5th ed. 2012). The

parties agree that Egei’s retaliation claim is brought under the “participation” clause, because the

statements that FEMA alleges were false or malicious were made in her formal EEO charge and

her testimony before the EEOC ALJ. See Dkt. 19 at 6; Dkt. 20 at 10. The question is whether

the participation clause shields an employee from adverse action on the basis of any testimony

she provides in an EEO proceeding, as some courts have concluded, or whether the privilege

established by the clause is, as other courts have concluded, a qualified one.

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The leading case recognizing an absolute privilege is Pettway v. American Cast Iron Pipe

Co., 411 F.2d 998. In Pettway, an African-American metalworker brought an EEOC complaint

against his employer for suspending him on the basis of his race. See id. at 1000–01. When the

EEOC dismissed the charge, the plaintiff filed a letter requesting reconsideration, in which he

alleged that (among other things) the EEOC investigator had been bribed. Id. at 1001–02 & n.5.

In response, the employer discharged the plaintiff “for making false and malicious statements

about [the e]mployer in the letter.” Id. at 1002. The plaintiff filed another complaint with the

EEOC, and then a Title VII action, claiming that he had been retaliated against on the basis of his

participation in EEO proceedings. Id. The district court dismissed the case, “ruling that the

letter constituted serious, false charges and was not privileged” under Title VII. Id.

The Fifth Circuit reversed. Id. at 1007. It explained that Title VII’s protections against

retaliation were designed “to protect the employee who utilizes the tools provided by Congress to

protect his rights”—a goal that would be “frustrated if the employer may unilaterally determine

the truth or falsity of charges and take independent action.” Id. at 1005. See also Sias v. City

Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978) (“If the availability of . . . protection

[under the participation clause] were to turn on whether the employee’s charge were ultimately

found to be meritorious, resort to the remedies provided by the Act would be severely chilled.”

(citing Pettway, 411 F.2d at 1004–07)). Although the Fifth Circuit reasoned that an employee

who filed a facially invalid EEO complaint might not be protected by the participation clause,

where an EEO complaint was facially valid but contained false or malicious statements, “the

charging party is exercising a protected right under the Act” and “may not be discharged” on the

basis of having done so. Pettway, 411 F.2d at 1007. Because the employee in that case had filed

10

just such a charge, the Fifth Circuit concluded that his discharge was in violation of Title VII.

Id.

In the 45 years since the Pettway decision, many circuits have restated the Pettway rule

with varying degrees of approval. Most notably, the Fourth Circuit has adopted the rule in full.

In a 1999 opinion authored by then-Chief Judge Wilkinson, it held that “all testimony in a Title

VII proceeding is protected against punitive employer action.” Glover, 170 F.3d at 414

(emphasis added). The Fourth Circuit reasoned that “[t]he plain language of the participation

clause itself foreclose[d]” a limited interpretation of its scope. Id. As the court explained, “[t]he

word ‘testified’ is not proceeded or followed by any restrictive language that limits its reach”;

indeed, “it is followed by the phrase ‘in any manner’—a clear signal that the provision is meant

to sweep broadly.” Id. (internal quotation marks omitted). Moreover, as the Fourth Circuit

further explained, a broad interpretation is consistent with the purpose of Title VII. It wrote:

Section 704(a)’s protections ensure not only that employers cannot intimidate

their employees into for[]going the Title VII grievance process, but also that

investigators will have access to the unchilled testimony of witnesses. . . . If a

witness in a Title VII proceeding were secure from retaliation only when her

testimony met some slippery reasonableness standard, she would surely be less

than forthcoming. It follows that the application vel non of the participation

clause should not turn on the substance of the testimony.

Id.

Most other circuits have cited Pettway favorably or have referenced its holding in dicta.

Some, like the D.C. Circuit in Parker, have stated the Pettway rule, or a form of it, but have held

that it does not apply to claims brought under Title VII’s “opposition” clause (as opposed to its

participation clause). See, e.g., EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1175 (11th Cir.

2000); Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989).

Others have cited favorably to Pettway in reading the participation clause expansively—stating,

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for instance, that protection afforded by the participation clause is “broad” or that it applies even

if the employee’s charge is found not to have merit. See Slagle v. Cty. of Clarion, 435 F.3d 262,

266, 268 (3d Cir. 2006); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir. 1999);

Wyatt v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994) (per curiam).

The Seventh Circuit, by contrast, has repeatedly rejected the Pettway rule. In a 2004

opinion by then-Chief Judge Flaum, the Seventh Circuit held that only a “good faith” and

“reasonable” EEO complaint warrants protection under the participation clause. Mattson, 359

F.3d at 892. It explained that, were it to hold otherwise, “an employee could immunize his

unreasonable and malicious internal complaints simply by filing a discrimination complaint with

a government agency.” Id. at 891. Such a rule, it reasoned, “would encourage the abuse of Title

VII and the proceedings that it establishes.” Id. In a later opinion, Judge Posner expressed a

similar view in dicta, arguing that the panels in Pettway and similar cases “can’t actually believe

that forging documents and coercing witnesses to give false testimony are protected conduct,”

and that there was no real difference between such conduct and lying. See Hatmaker v. Mem’l

Med. Ctr., 619 F.3d 741, 746 (7th Cir. 2010). 4

Thus, in two circuits—the Fourth and the Fifth—an employee who makes even a false or

malicious statement in an EEO proceeding cannot be fired on the basis of the statement. Under

such a rule, FEMA would have violated Title VII in firing Egei. In the Seventh Circuit, by

contrast, an employee who makes an EEO complaint in “bad faith” can be fired on the basis of

4

The Eighth Circuit appears to have both accepted and rejected the Pettway rule. Compare

Womack v. Munson, 619 F.2d 1292, 1298–99 (8th Cir. 1980) (following Pettway) with Gilooly v.

Missouri Dep’t of Health & Senior Servs., 421 F.3d 734, 740 (8th Cir. 2005) (seeming to reject

Pettway), and id. at 742 (Colloton, J., concurring in part and dissenting in part) (interpreting the

panel majority to reject Pettway). See Hatmaker, 619 F.3d at 746 (describing Womack and

Gilooly as “inconsistent” with one another).

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that complaint. Under such a rule, FEMA might be able to argue that Egei’s termination was

consistent with Title VII. The remaining circuits—including this circuit—have not definitively

resolved the question but have either expressed approval of the Pettway rule in passing, see, e.g.,

Parker, 652 F.2d at 1019, or observed that the protection afforded by the participation clause is

“expansive,” see, e.g., Slagle, 435 F.3d at 266; Clover, 176 F.3d at 1353.

B. The Court’s View

Because the D.C. Circuit has yet to resolve definitively whether Title VII’s participation

clause shields an employee from retaliation on the basis of false or malicious statements made

during EEO proceedings, the Court must come to its own conclusion. For the following reasons,

the Court agrees with the Fourth and Fifth Circuits that it does.

First, although the D.C. Circuit has not definitively resolved the question, its opinion in

Parker offers relevant guidance. In Parker, a white railroad worker filed a Title VII action

against his employer, alleging that its affirmative action plan violated his rights under the statute.

652 F.2d at 1013. When the worker attempted to file an amended complaint, alleging that he had

been retaliated against on the basis of his opposition to the plan, the district court denied leave to

amend. Id. at 1014. The D.C. Circuit reversed, explaining that the worker had acted on his

“good faith, reasonable belief” that the affirmative action plan had violated the principles of Title

VII, and that he was therefore protected from adverse action by the opposition clause. Id. at

1020. In doing so, however, the D.C. Circuit distinguished the opposition clause—which it held

provided only qualified protection from retaliation—from the participation clause. Id. at 1019.

The participation clause, the Court explained,

speaks in clear, absolute terms, and has accordingly been interpreted as shielding

recourse to the EEOC, regardless of the ultimate resolution of the underlying

claim on its merits. See, e.g., Pettway v. American Cast Iron Pipe Co., 411 F.2d

998 (5th Cir. 1969). . . .

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The obvious concern of Congress, in both the opposition and participation

clauses, was to protect the employee who dares to speak out against his

employer’s hiring practices. The enforcement scheme Congress chose for Title

VII relies heavily on the initiative of aggrieved employees, whose efforts in the

public interest would be severely chilled if they bore the risk of discharge

whenever they were unable to establish conclusively the merits of their claims.

Id. Thus, although the D.C. Circuit did not explicitly adopt the Pettway rule, it cited favorably to

Pettway and relied on essentially the same reasoning that the Fifth Circuit did in that case. There

is at least some indication, in other words, that the D.C. Circuit would—were it to resolve the

question—follow the Fifth Circuit’s decision in Pettway.

Second, the text of the participation clause itself militates in favor of protection for the

substance of statements made in the course of EEO proceedings, even if false or malicious. As

then-Chief Judge Wilkinson observed, the participation clause forbids retaliation against an

employee who “has made a charge, testified, assisted, or participated in any manner” in a

protected proceeding. 42 U.S.C. § 2000e-3(a) (emphasis added); Glover, 170 F.3d at 414. “A

straightforward reading of the statute’s unrestrictive language leads inexorably to the conclusion

that all testimony in a Title VII proceeding”—or at least the substance of such testimony—“is

protected against punitive employer action.” Glover, 170 F.3d at 414. The Seventh Circuit’s

contrary view is not premised on the language of statute, but on a disbelief that Congress could

possibly have intended to protect “[l]ying in an internal investigation.” Hatmaker, 619 F.3d at

746.

Third, as most courts to have considered this issue have agreed, a broad protection is

consistent with the remedial purpose of Title VII’s antiretaliation provisions in general and the

participation clause in particular. “Activities under the participation clause are essential to the

machinery set up by Title VII.” Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253,

259 n.4 (4th Cir. 1998) (internal quotation marks omitted). Those activities would be chilled,

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and Title VII’s scheme frustrated, if employees “bore the risk of discharge whenever they were

unable to establish conclusively the merits of their claims.” Parker, 652 F.2d at 1019; see

Pettway, 411 F.2d at 1005 (“A protected activity acquires a precarious status if innocent

employees can be discharged while engaging in it, even though the employer acts in good

faith.”). If an employee can file an EEO complaint, lose on the merits, and then be fired for

making false accusations—just as Egei was here—it is not difficult to imagine future employees

hesitating to raise bona fide discrimination claims that they are uncertain they will win. Cf.

Pettway, 411 F.2d at 1005 (“This is often the only way that such issues can be raised—by an

individual drafting his charge as best he can without expert legal advice.”).

A good-faith but mistaken claim of discrimination, of course, is not the same as a false

claim of discrimination, and those judges who have rejected the Pettway rule have emphasized

that the two can be distinguished. See Mattson, 359 F.3d at 892 (“Protection is not lost simply

because an employee is mistaken on the merits of his or her charge.”); Gilooly, 421 F.3d at 740

(to similar effect). This might be true in a case where an employee admits to having lied. But

absent such an admission, the risk of chilling legitimate claims and testimony remains. It would

be cold comfort for claimants if they were nominally protected from adverse action on the basis

of their testimony, but only to the extent that a judge, an ALJ, or even an employer concludes in

“good faith” that such testimony was false or malicious. Cf. Brady v. Office of Sergeant at Arms,

520 F.3d 490, 495 (D.C. Cir. 2008). Indeed, it is not difficult to imagine circumstances where an

employer might believe in good faith that a charge was false—a senior manager, for example,

might (mistakenly) believe that it is unfathomable that a long-serving and respected mid-level

manager would have engaged in the discriminatory conduct alleged by the employee—and on

that basis discharge an employee for asserting a charge that was, in fact, true.

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Fourth, and finally, affording broad protection to an employee’s EEO complaints—even

if malicious or untrue—is consistent with protections afforded complainants in other legal

regimes. It is black-letter tort law, for instance, that parties, attorneys, and witnesses in a judicial

proceeding are absolutely privileged to make defamatory statements during the course of that

proceeding. See Restatement (Second) of Torts §§ 586–88 (1977 & Supp. 2016). That rule, like

this one, is designed to protect access to legal remedies. See id. § 587 cmt. a (“The privilege

stated in this Section is based upon the public interest in according to all men the utmost freedom

of access to the courts of justice for the settlement of their private disputes.”). This is not to

condone lying or to suggest that false charges and testimony do not take a toll on administrative

proceedings. The problem is that, in practice, it is not possible to permit employers to take

adverse action against EEO claimants based on false charges or testimony—or based on charges

and testimony that the employer believes to be false—without chilling truthful charges and

testimony.

The Court acknowledges that there are reasonable arguments on either side of this issue.

See, e.g., Gilooly, 421 F.3d at 740 (“Differentiating individual cases between the two extremes is

a difficult endeavor . . . .”); Proulx v. Citibank, N.A., 659 F. Supp. 972, 977 (S.D.N.Y. 1987)

(“Whichever interpretation is adopted, a potential for abuse arises.”). But there is no evidence

that the interpretation the Court adopts today is more likely to increase the kinds of abuses

contemplated by the courts that have rejected the Pettway rule, cf. Mattson, 359 F.3d at 890–91

(positing an employee who “assure[s] himself unlimited tenure by filing continuous complaints

with the government agency [because] he fears that his employer will discover his duplicitous

behavior at the workplace”), than it is to decrease the chill on legitimate claims—which is, after

all, the risk that Congress sought to minimize. And nothing in the Court’s interpretation of Title

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VII prohibits an employer from taking action against an employee for improper behavior outside

the scope of EEO proceedings. See, e.g., Glover, 170 F.3d at 414 (“Our holding does not permit

employees to immunize improper behavior simply by filing an EEOC complaint.”).

Finally, the Court emphasizes three limitations on the breadth of its holding. First, the

principles discussed above apply primarily to a case, like this one, in which an employer takes

adverse action against an employee on the basis of the substance of her EEO claim or testimony

offered in support of that claim—that is, on the ground that the employer believes that the charge

or testimony itself is false or malicious. The Court is not confronted with a case, for instance, in

which a federal employee maliciously divulges trade secrets on the public record in a Title VII

action, see, e.g., 18 U.S.C. § 1905, or threatens another participant during the course of an EEO

proceeding, see, e.g., 18 U.S.C. § 1512. The question whether an employer could take adverse

action in response to misconduct unrelated to the content of the employee’s charge or testimony

is not before the Court. Second, this is not a case in which an employee has admitted having

made a false or malicious statement in the course of an EEO proceeding. The question whether

such an admission would render a false or malicious statement actionable under Title VII, once

again, is not before the Court; the question before the Court is simply whether an employer may

punish an employee for offering testimony in an EEO proceeding that the employee asserts is

true and that the employer disbelieves. Third, the Court’s holding is limited to adverse action

cognizable under Title VII’s antiretaliation provision—that is, adverse employment action. It

leave for another day the question whether and under what circumstances a court, an ALJ, or

some other party might independently take action in response to false or malicious testimony.

In sum, the Court concludes, consistent with Pettway, Glover, and the Parker dicta, that

Title VII’s participation clause protects an employee from adverse employment action taken on

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the basis of the substance of a charge or testimony she makes in the course of her participation in

Title VII EEO proceedings.

C. This Case

This rule leaves little, if anything, to FEMA’s defense. FEMA acknowledges that it fired

Egei because of substantive statements she made during her initial EEO proceedings. Indeed, 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. See Dkt. 9-1 at 21 (“There is no dispute

that her false statements occurred during her prior EEO proceeding, but that link alone does not

suffice to show pretext.”). Because those statements were protected by Title VII, however—

whether or not they were false or malicious—FEMA was not permitted to fire Egei for making

them.

In its order soliciting supplemental briefing, the Court asked FEMA whether any further

defenses were available to it or whether, instead, summary judgment should be entered for Egei.

Dkt. 18 at 2. FEMA suggests three reasons why the Court should not enter summary judgment

for Egei at this time. First, FEMA argues that it is entitled to discovery as to whether “there is

evidence of a lack of good faith, of outright fraud, or of other relevant misconduct” on Egei’s

part. Dkt. 19 at 10. The problem for FEMA is that the relevant question under Title VII is not

whether Egei could have been terminated on the basis of “other . . . misconduct,” but whether

she was. The record amply refutes any suggestion that she was. And to the extent that FEMA

argues that some evidence might further support its claim that Egei did not pursue her EEO claim

in “good faith,” or that her claim was an act of “outright fraud,” its argument is beside the point.

At least in the absence of a concession from Egei that she was lying—a fact Egei vigorously

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contests, see Compl. ¶ 15—the weight of the evidence in support of FEMA’s view (and against

Egei’s) does not matter.

FEMA’s other arguments are also unavailing. FEMA’s second argument as to why the

Court should not grant summary judgment to Egei is that it is entitled to discovery related to the

issue of damages. Dkt. 19 at 10. The Court agrees, and thus will limit the judgment to the issue

of liability, not damages. FEMA finally argues that Egei cannot recover because “the equitable

relief she seeks is barred by her unclean hands.” See id. (citing Precision Instrument Mfg. Co. v.

Auto Maint. Mach. Co., 324 U.S. 806, 814–15 (1945)). But to the extent FEMA contends that

Egei’s allegedly malicious and false charges and testimony give rise to an equitable defense at

the liability phase, that argument merely rehashes the contention discussed and rejected above.

And, to the extent FEMA argues that equitable considerations bear on the appropriate remedy,

that argument is premature.

CONCLUSION

For these reasons, the Court will deny FEMA’s motion to dismiss and/or for summary

judgment, Dkt. 9, and will grant partial summary judgment to Egei, limited to the question of

liability. A separate order will issue.

/s/ Randolph D. Moss

RANDOLPH D. MOSS

United States District Judge

Date: June 24, 2016

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