Those of us who deal with the Equal Employment Opportunity Commission on a regular basis sometimes lose track of the fact that it, like the folks we represent as management attorneys, is an employer too. And, it is subject to many of the same anti-discrimination and anti-retaliation legal requirements as the employers it investigates.
A recent decision from the D.C. Circuit shows that even the EEOC is sometimes required to explain its actions toward its employees. Menoken v. Dhillon, 2020 U.S. App. LEXIS 29184 (D.C. Cir. Sep. 15, 2020).
Cassandra Menoken was an EEOC attorney for over 35 years. In 2016, she sued the Commission, alleging that (as her employer) it had subjected her to a hostile work environment that violated Title VII and had also violated her rights under the Rehabilitation Act of 1973. The district court dismissed the complaint and also denied her motion for reconsideration. Menoken appealed.
As the case was decided on a motion to dismiss, the facts alleged by Menoken in her complaint are presumed to be true but have not yet been factually proven. Here’s her story:
Starting in 1994, Menoken began filing anti-discrimination and retaliation claims against the Office of Personnel Management (“OPM”), the Social Security Administration (“SSA”), and the Department of Health and Human Services (“HHS”). The crux of her lawsuit against the EEOC is that, in response to those claims, the Commission engaged in “persistently hostile behavior caused her to experience and seek medical treatment for ‘depression, acute stress, severe hypertension and “complex” post-traumatic stress disorder.’”
Menoken claimed she sought reasonable accommodations under the Rehabilitation Act (which uses the same standard as the ADA and applies to federal employers), which the EEOC denied. But she also claimed that the Commission violated Rehab Act restrictions on conducting inquiries into an employee’s medical condition; violated confidentiality requirements for employee medical records; and unlawfully interfered with her attempt to exercise rights protected under the Act.
On appeal, the D.C. Circuit considered Menoken’s allegations that a series of incidents in 2013 involving anomalies related to her compensation and benefits, all of which were alleged to involve her supervisor and the EEOC’s human resources director. She claimed that these problems were the EEOC’s way of creating a hostile work environment, even though Menoken was not physically present in the office at the time, as she was on leave.
The court noted that the D.C. Circuit “has explicitly ‘reject[ed] a per se rule against considering incidents alleged to have occurred while an employee was physically absent from the workplace.’ Greer v. Paulson, 505 F.3d 1306 , 1314 , 378 U.S. App. D.C. 295 (D.C. Cir. 2007).”
It continued that “an employer’s deliberate attempts to affect an employee’s finances and access to healthcare strike us as precisely the type of conduct that ‘might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” As such, the retaliatory hostile work environment claim could proceed.
Next, the appellate court considered dismissal of Menoken’s reasonable accommodation claim, which the district court and the EEOC had characterized as a request for an “indefinite period of leave.” Something the EEOC says is not a reasonable accommodation. But in agreeing with the Commission, the district court had relied on materials outside the pleadings, something that typically is not permitted on a motion to dismiss. And, Menoken alleged that she had “suggested several accommodation options in 2012,” including a temporary reassignment or an alternative appeals process. Applying the Rule 12(b)(6) standard, the court held Menoken had sufficiently stated a claim at this stage of the litigation.
Finally, the court also permitted Menoken’s “interference claim” under the Rehab Act to proceed. This is a pesky legal issue, with both sides offering various proposed interpretations under the Rehab Act. But, said the court, it “need not adopt a particular standard for . . . [such] claims in this case, nor determine the precise requirements for actionable interference under the statute, because Menoken’s complaint when read as a whole stated a claim for unlawful interference under either proposed standard.” An issue saved for another day.
The court upheld dismissal of the allegations of unlawful medical inquiries and confidentiality violations.