405 F.3d 840 (10th Cir. 2005), 03-9566, Board of County Com'rs, Fremont County, Colorado v. United States E.E.O.C.

Docket Nº:03-9566.
Citation:405 F.3d 840
Case Date:April 15, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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405 F.3d 840 (10th Cir. 2005)





Jay Janssen, Intervenor.

No. 03-9566.

United States Court of Appeals, Tenth Circuit

April 15, 2005

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Cathy Havener Greer (L. Michael Brooks, Jr. with her on the brief), Wells, Anderson & Race LLC, Denver, CO, for Petitioner.

Peter D. Keisler, Assistant Attorney General (Marleigh D. Dover, Stephanie R. Marcus, Attorneys, Appellate Staff Civil Division, Department of Justice, Lorraine C. Davis, Assistant General Counsel, Daniel T. Vail, Attorney, United States Equal Employment Opportunity Commission, with him on the brief), Washington, D.C. for Respondent.

Charlotte N. Sweeney (Richard C. LaFond, with her on the brief), Lafond & Sweeney, L.L.C., Denver, CO, for Intervenor.

Before KELLY, HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Jay Janssen, an employee of the Fremont County Board of County Commissioners ("Board"), filed an Equal Employment Opportunity Commission ("EEOC") complaint alleging that the Board retaliated against him for filing a prior EEOC complaint. Contending that the Government Employee Rights Act of 1991 ("GERA"), 42 U.S.C. §§ 2000e-16a, 2000e-16b, and 2000e-16c, does not protect employees from retaliation for exercising their rights under the Act, the Board seeks reversal of the EEOC's determination that it retaliated against Janssen. The Board argues that GERA clearly reflects congressional intent not to provide a right against retaliation, and that the EEOC's recognition of such a right violates the expressed will of Congress and the Tenth Amendment. The Board further argues that the EEOC erred in its determination that one of the Administrative Law Judge's ("ALJ") findings was not supported by substantial evidence. For the reasons set forth below, we exercise jurisdiction under 42 U.S.C. § 2000e-16c(c) and 28 U.S.C. § 2344 and AFFIRM the EEOC's final decision.


In 1993 Janssen was appointed by the Board to a position in its Emergency Management Office. Although an appointee of the Board, he was supervised in matters of time, attendance, and budget by the County Finance Director who acted as the de facto County Administrator. While in this position, Janssen served the Board on the policymaking level, and was, therefore, protected by GERA, rather than Title VII.

Janssen was originally hired as a part time employee to prepare the County Emergency Management Plan, and his responsibilities grew when he became a full time employee in 1995. Although Janssen received overall satisfactory job ratings and salary increases from 1993 to 1995, the Board received numerous complaints concerning his interpersonal skills from various organizations with which he was required to interact in performing his job. Janssen also experienced interpersonal problems within the County government. Beginning in 1993, the Finance Director, Janssen's supervisor, developed an on-going intimate relationship with the Finance Department clerk. Because Janssen shared office space with the Finance Department in the County Courthouse and because he and the clerk did not get along, this intimate relationship contributed to problems within the office. When Janssen lodged complaints concerning the clerk with his supervisor, the Finance Director took no action to discipline the clerk for anything she did to contribute to the office problems. Ultimately Janssen filed a complaint of third-party sexual harassment with the EEOC, claiming that he had suffered

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adverse employment conditions because he had complained internally of the ongoing relationship between the Finance clerk and his supervisor.

Immediately subsequent to its learning of the EEOC complaint in October 1996, the Board notified Janssen that they were converting the Emergency Management position into a contract position effective January 1997. Although Janssen submitted the lowest bid for this contract position he was not selected for an interview. In December, after an altercation with a custodian at the courthouse, the Board placed Janssen on administrative leave until his position terminated. As a consequence, Janssen filed two further charges of discrimination with the EEOC alleging that the Board placed him on leave and did not select him for the contract position in retaliation for filing his first EEOC complaint.

The EEOC referred all discrimination charges to an ALJ. After a hearing, the ALJ determined that the Board retaliated against Janssen for filing the initial charge of discrimination by: (1) placing him on administrative leave, and (2) not selecting him for the new contract position. Awarding back pay, attorney's fees and costs, and equitable relief, the ALJ declined to order reinstatement and non-pecuniary compensatory damages because she determined that Janssen had "unclean hands." The ALJ deferred ruling on the Board's constitutional and statutory challenges.

Appeals to the EEOC followed. Central to the Board's appeal was its contention that GERA did not prohibit retaliation and construing it to do so violated the Tenth Amendment. The Board also contested the sufficiency of the evidence underlying the finding of retaliation. On cross-appeal, Janssen contended that the ALJ's denial of compensatory damages based on "unclean hands" was error. Because it interpreted § 2000e-16(b) to include a right against retaliation, the EEOC issued its final decision which rejected the Board's constitutional and statutory arguments. The EEOC also reversed the ALJ's determination that Janssen had "unclean hands," and awarded him $10,000 in non-pecuniary compensatory damages for emotional distress. This appeal ensued.


GERA establishes our standard of review. We may set aside the EEOC's final order only if it was "(1) arbitrary, capricious, an abuse of discretion, or otherwise not consistent with law; (2) not made consistent with required procedures; or (3) unsupported by substantial evidence." § 2000e-16c(d).


At the heart of this case is the interpretation of the Act. GERA provides protection against workplace discrimination to certain state employees who are excluded from coverage under Title VII of the Civil Rights Act of 1964, § 2000-16a, 2000-16b, and 2000-16c. 1 Our review of the EEOC's interpretation of employment discrimination statutes is governed by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

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Applying Chevron's two-step test, we first conduct a de novo review to determine whether the plain language of the applicable statutory provisions clearly demonstrates congressional intent. Id. at 842-43, 104 S.Ct. 2778. If the statute is silent or ambiguous with respect to the specific issue before the court, we must determine "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. As long as the interpretation is reasonable, we must defer to the agency's construction of the statute even though it may not conform with how we would interpret the statute in an original judicial proceeding. Id. at 843 n. 11, 104 S.Ct. 2778.

At issue in this appeal is whether § 2000e-16b(a)(1) of GERA encompasses protection against retaliation for employees exercising their rights under the Act. As the agency entrusted with administering the Act for state employees, the EEOC has interpreted GERA to include such protection. However, the Board argues that such a right is contrary to congressional intent. In 1991, Congress enacted GERA, and extended protections against discrimination to previously exempt state employees. 2 In so doing, Congress echoed the exclusionary language of Title VII, specifically extending protections against discrimination based on race, color, religion, sex, national origin, age, or disability to previously exempt high-level state employees. 3

When interpreting a statute, we start with the language of the statute itself. The relevant section of § 2000e-16b(a) states: "[a]ll personnel actions affecting ... State employees described in section 2000e-16c of this title shall be made free from any discrimination based on--(1) race, color, religion, sex, or national origin, within the meaning of section 2000e-16 of this title." § 2000e-16b(a)(1) (emphasis added). This quoted portion of the statute is silent as to retaliation, as is the remainder of GERA as currently enacted at § 2000e-16(a), 2000e-16(b), or 2000-16(c).

The EEOC has interpreted the underlined language of the statute to contain a right against retaliation because § 2000e-16 incorporates the provisions of 42 U.S.C. § 2000e-5(f)-(k), which in turn incorporates Title VII's anti-retaliatory provision contained in 42 U.S.C. § 2000e-5(g). The Board, however, argues that the language, "within the meaning of section 2000e-16 of this title" merely meant to incorporate the definition of the terms "race, color, religion, sex, or national origin" from § 2000e-16.

"Within the meaning of section 2000e-16 of this title" is subject to two differing interpretations, and neither it, nor GERA generally, unambiguously addresses retaliatory

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discrimination. Because the statute that the Board challenges is subject to differing interpretations, we will defer to the EEOC's interpretation provided it is reasonable; that is, "unless it is arbitrary, capricious, or manifestly contrary to the statute." Chevron, 467 U.S. at 844, 104 S.Ct. 2778; Pharmanex v. Shalala, 221 F.3d 1151, 1154 (10th Cir.2000).

We assume that Congress knows the law and legislates in light of federal court precedent. See Cannon...

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