Employment Law Daily OFCCP was proper avenue for bringing Title VII claim; race bias, reprisal claims survive
Thursday, October 5, 2017

OFCCP was proper avenue for bringing Title VII claim; race bias, reprisal claims survive

By Lisa Milam-Perez, J.D.

A health care compliance officer exhausted her administrative remedies by filing a charge of race discrimination with the OFCCP, rather than going to the EEOC. And, judging from the allegations set forth in her court complaint, the substance of her OFCCP charges were reasonably related to her Title VII claims, a federal district court in Illinois held, denying in part her employer’s motion to dismiss. In a footnote, the court rejected the employer’s challenge to the 2011 Memorandum of Understanding between the OFCCP and EEOC permitting the OFCCP to receive Title VII charges as an agent of the EEOC (Daniel v. Advocate Health Care Network, September 30, 2017, Wood, A.).

A compliance officer for a healthcare network (a federal government contractor) who contended she was subjected to race and sex discrimination filed a complaint with the OFFCP in 2013, and was issued a right-to-sue letter by the agency in 2015. Also in 2015, after more allegedly discriminatory conduct, she reported federal compliance violations by her employer, including race discrimination, to the OFCCP. Months later, in 2016, her employer issued her a “Memorandum of Concern,” setting her on the path toward termination, which prompted her to file a second race discrimination complaint with the OFCCP, and the OFCCP issued another right-to-sue letter. (She also filed an OSHA complaint during this time.) When she was ultimately discharged months later, she filed this lawsuit, alleging claims of discrimination under Title VII and Section 1981, as well as retaliation under Title VII and the Illinois Whistleblower Act, among other claims.

OFCCP charge will do. In its motion to dismiss, the employer argued that the employee failed to exhaust her administrative remedies by filing her 2013 and 2016 OFCCP charges. The 2013 charged was not made under Title VII, the employer reasoned, but rather, invoked law pertaining to federal government contracts. As such, the charge could not support her Title VII claims. However, a Memorandum of Understanding between the EEOC and OFCCP, last revised in 2011, provides that the OFCCP can act as the EEOC’s agent to receive Title VII complaints and charges, and to issue right-to-sue letters; any Title VII complaints received by OFCCP will be deemed dual-filed with EEOC. Consequently, when the employee filed her OFCCP race discrimination charge, she properly filed charges with an agent of the EEOC, the court said.

MOU’s delegation valid. The employer contended the Memorandum of Understanding between the federal agencies was legally invalid, arguing that it “violates Title VII’s confined statutory grant of powers to the EEOC by allowing the EEOC to designate who investigates Title VII claims.” The court rejected this line of defense in a footnote. The only provision implicated here was whether the EEOC could designate OFCCP as an agent to receive charges (there was nothing in the record at this point about which agency investigated the employee’s charges), and the employer did not cite any Title VII provision prohibiting the EEOC from doing so, the court noted.

OFCCP charge reasonably related. Next, the employer argued that many of the Title VII discrimination allegations in the employee’s complaint were not in her 2013 charge to the OFCCP. Here, the court was flying blind—the employee’s 2013 OFCCP charge was not in the record. At this juncture, though, it was enough that her complaint stated that she had complained of race discrimination in her OFCCP charge; the employer cited no authority in support of the notion that the employee must explicitly reference Title VII in her agency charge. Because it could not assess whether the discrimination allegations were properly encompassed in her OFCCP charge, the court refused to dismiss the claim. The employer was invited to try again on summary judgment, after further development of the evidentiary record.

Retaliation claims. The employee alleged that the employer issued the Memorandum of Concern and ultimately terminated her in reprisal for her OFCCP and OSHA complaints. That was enough to rebut the employer’s assertion that the employee had not identified any Title VII-protected activity. The employer also argued that some of the retaliatory incidents she complained of did not directly relate to the memorandum or her termination, and thus were beyond the scope of her 2016 charge. It was premature to resolve those factual questions at this stage, though; and, even if the other incidents were not directly related, she could still cite them as evidence in support of her claim Title VII retaliation claim.

State-law whistleblower claim. The employee’s state whistleblower claim survived the employer’s motion to dismiss, too. The court rejected as unpersuasive the employer’s argument that the employee failed to indicate what statute or regulation it allegedly violated, or what public policy interest was implicated by the alleged violations. The employee had explicitly asserted that she reported race discrimination, among other unlawful conduct—which “very clearly implicates important public policy,” the court found. The evidentiary record currently before the court did not reveal precisely what she had reported to the federal agencies; however, given that her allegations of race discrimination survived a motion to dismiss based on the existing record, it was plausible on this record that the employee reasonably believed the conduct she reported to the federal agencies amounted to unlawful race discrimination.

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