The U.S. Court of Appeals for the D.C. Circuit has revived the class action race-discrimination claims by black officers of the U.S. Capitol Police under the Congressional Accountability Act. Blackmon-Malloy v. U.S. Capitol Police Bd., 2009 WL 2341544 (DC Cir. July 31, 2009).
In the Congressional Accountability Act of 1995 ("the CAA"), Congress extended the protections of Title VII of the Civil Rights Act of 1964, as well as ten other federal statutes, to employees of the legislative branch. In the CAA, Congress specified a three-step process that requires counseling and mediation before an employee may file a complaint seeking administrative or judicial relief. Further, Congress created an Office of Compliance and vested it with responsibility for counseling and mediation and adoption of rules of procedure.
In Blackmon-Malloy, approximately 200 black police officers sued in 2001, alleging systematic discrimination against minority and female officers, including discrimination in hiring, promotion, discipline, retaliation, and maintaining a hostile work environment, in violation of Title VII, 42 U.S.C. §§ 2000e, et seq., and the Civil Rights Act of 1991, id. § 1981a. The suit charged that white senior officers had created a hostile work environment by regularly referring to them with derogatory terms like "gangsters" and, in some cases, denying them promotions to the rank of sergeant or lieutenant.
The district court dismissed the complaint for lack of jurisdiction. The district court ruled that the counseling and mediation requirements were jurisdictional, that mediation had to be completed in person, and that receipt of end of counseling and mediation notices did not establish completion of mediation because in issuing the notices of the end of mediation, the Office was not interpreting whether mediation had been completed. In this appeal, the court of appeals evaluated all three of these holdings.
The court held that the three-step process is jurisdictional and affirmed the district court ruling that equitable doctrines do not apply to excuse compliance with it. The court noted that the conclusion that Congress intended the three-step process to be jurisdictional is consistent with the statutory scheme that Congress established to handle discrimination (and other) claims by its employees. However, the court reversed the district court's in-person ruling, holding that neither the CAA nor the procedural rules of the Office of Compliance require in-person attendance by the employee at counseling or mediation. The court noted that because Congress has not explicitly denied an employee the opportunity to appear through a representative at counseling or mediation and has expressly authorized the Office to issue procedural rules, and because the Office's interpretation that its rules do not require in-person attendance by the employee at mediation is not "plainly erroneous or inconsistent with the [rules]," the court held that neither the CAA nor the Office's procedural rules require the employee's in-person attendance at counseling or mediation.
Finally, the court held that receipt of written notice of the end of mediation from the Office of Compliance triggered the CAA's 30 to 90-day period for electing whether to pursue judicial or administrative relief and demonstrated the employees' completion of counseling and mediation.
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