Falkowski v. E.E.O.C.

• Decision Date: 14 October 1983
• Docket Number: No. 82-1446,82-1446
• Citation: 719 F.2d 470
• Parties: 38 Fair Empl.Prac.Cas. 348, 32 Empl. Prac. Dec. P 33,858, 231 U.S.App.D.C. 226 Evelyn FALKOWSKI, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 470

719 F.2d 470

38 Fair Empl.Prac.Cas. 348,

32 Empl. Prac. Dec. P 33,858, 231 U.S.App.D.C. 226

Evelyn FALKOWSKI, Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.

No. 82-1446.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 13, 1982.

Decided Oct. 14, 1983.

Appeal from the United States District Court for the District of Columbia (D.C.Civil No. 81-01776).

John D. Grad, Alexandria, Va., with whom Owen E. Perry, Troy, Mich., was on the brief, for appellant.

R. Lawrence Dessem, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Barbara L. Herwig, Atty., Dept. of Justice, and Vella M. Fink, Atty., E.E.O.C., Washington, D.C., were on the brief, for appellees.

Anthony J. Steinmeyer, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellees.

Before ROBINSON, Chief Judge, WILKEY, Circuit Judge, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

This appeal is from the District Court's grant of summary judgment against plaintiff Evelyn Falkowski, a high-level career employee of the Equal Employment Opportunity Commission (EEOC or Commission). In her complaint, Ms. Falkowski sought a judgment against the Commission and the Department of Justice (DOJ or Department) compelling them to reimburse her for past legal expenses and to provide future legal representation in two lawsuits brought against her by a subordinate during her tenure as director of EEOC's district office in Birmingham, Alabama. Plaintiff alleges that the defendant government agencies have denied her reimbursement and representation in these suits either for discriminatory and retaliatory motives in contravention of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 (1976 & Supp. V 1981), or through arbitrary and capricious agency action in violation of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A) (1976).

After Ms. Falkowski filed her complaint in District Court, the defendant government agencies moved in the alternative for dismissal or summary judgment. Although it found that the complaint stated valid causes of action under Title VII and the APA, the District Court nonetheless granted defendants' motion for summary judgment. See Falkowski v. EEOC, No. 81-1776 (D.D.C. Mar. 4, 1982). Plaintiff thereafter filed this appeal challenging the District Court's grant of summary judgment on three of her causes of action. We affirm the District Court's judgment as to plaintiff's first cause of action, but reverse as to the second and third because genuine issues of material fact relevant to those claims remain in the case.

I

The history of Ms. Falkowski's struggles with the EEOC stretches back to 1973 and encompasses an intervening volume of courtroom litigation and agency proceedings that for sheer sinuosity falls nothing short of Kafkaesque. Fortunately for purposes of the present opinion, we need recount only a portion of the various judicial and administrative antecedents to the case now before us.

A. The Background Litigation for Which Plaintiff Seeks Government Representation and Reimbursement

Ms. Falkowski began her career with the EEOC in 1967 and by 1971 had become head of the Commission's newly formed office in Jackson, Mississippi. At the time, she was one of the few women professionals employed by EEOC in its southeastern region. After two years in the Jackson office, Ms. Falkowski sought a transfer to the Birmingham district office for both personal and professional reasons. When repeated attempts to procure her transfer failed, she brought suit against the EEOC alleging sexual discrimination as the motive for the agency's inaction. The matter was settled in apparently amicable fashion in the fall of 1974 when the Commission agreed to appoint Ms. Falkowski director of the Birmingham office. See Falkowski v. Powell, No. 73-P-1009-S (N.D.Ala. Sept. 9, 1974) (consent decree).

1. The Perry v. Golub Litigation

Following Ms. Falkowski's arrival in the Birmingham office, a series of disputes broke out between her and a number of her subordinates, but principally with the office's deputy director, Bertram Perry. On his side, Mr. Perry alleged that the friction stemmed from his justified protests against mismanagement by Ms. Falkowski; in particular, he pointed to a series of procedural irregularities purportedly reflecting overzealousness and bias on her part in favor of plaintiffs in certain Title VII actions. See Perry v. Golub, 400 F.Supp. 409, 411-12 (N.D.Ala.1975), vacated as moot, 594 F.2d 862 (5th Cir.1979). On her side, Ms. Falkowski contended that the conflict arose from her attempts to discipline rank insubordination and oppressive behavior against office personnel by Mr. Perry. See Brief for Appellant at 8. ¹

As the conflict deepened, both parties began to seek support for their respective positions from superiors in the Atlanta regional office. A series of investigations ensued that resulted in EEOC's decision, first to suspend Ms. Falkowski's authority as district director, and then to transfer both parties out of the Birmingham office. Ms. Falkowski immediately presented a pleading in federal district court challenging her transfer as a violation of the 1974 consent decree. ²

Mr. Perry likewise brought suit in federal district court to enjoin his own transfer out of Birmingham. His complaint named Ms. Falkowski and two other superiors, Messrs. Golub and Hollowell, as defendants. See Perry v. Golub, 400 F.Supp. 409 (N.D.Ala.1975), vacated as moot, 594 F.2d 862 (5th Cir.1979). Alleging that the transfer violated his first amendment and other civil rights, Mr. Perry accused his EEOC superiors of attempting to silence his protests as a "whistle-blower" and of discriminating against him on account of his race, which is black. These steps marked the beginning of the Perry v. Golub litigation, the first of the two suits for which plaintiff-appellant today seeks reimbursement and representation from the government in this court.

On August 29, 1975, the United States District Court for the Northern District of Alabama acted on Mr. Perry's complaint. A hearing was held in which EEOC attorneys appeared on behalf of all three defendants, including Ms. Falkowski, and in which private counsel for Ms. Falkowski was also present. At the hearing's conclusion, the district judge granted Mr. Perry's motion for a preliminary injunction barring his transfer from the Birmingham office. Under an informal agreement with the EEOC, Ms. Falkowski was allowed to "tag along" on this injunction, thus suspending her transfer as well. As a result of this agreement, the district court agreed to take no action on Ms. Falkowski's separate pleading for relief under the earlier 1974 consent decree. ³

The next relevant action in Perry v. Golub came in November 1976 when the district court granted Mr. Perry's motion to drop Ms. Falkowski as a defendant in the action. At roughly the same time, the court also acted to dissolve its preliminary injunction on grounds that efforts to remove Mr. Perry from his post were no longer afoot. Ms. Falkowski thereafter appealed her dismissal from the case, contending that EEOC attorneys had inadequately defended her in the 1975 preliminary-injunction hearing, and that she wished to remain in the action to clear her name. The United States Court of Appeals for the Fifth Circuit affirmed the district court's dissolution of the injunction on grounds of mootness, ⁴ and in an apparent nod to Ms. Falkowski vacated the underlying proceedings "so as to spawn no consequences." Perry v. Golub, 594 F.2d 862 (5th Cir.1979) (No. 77-1719) (unpublished opinion). ⁵

Numerous other controversies have emerged in the Perry v. Golub litigation since that time, including a dispute over the district court's retention of jurisdiction in the case after 1976 ⁶ and a petition by Mr. Perry for costs and attorneys' fees. ⁷ Ms. Falkowski meanwhile had instituted parallel litigation of her own against EEOC superiors which has followed an equally labyrinthine procedural course. ⁸ The details of these other proceedings, however, are not immediately relevant to the case before us.

2. The Perry v. Falkowski Litigation

During the pendency of the Perry v. Golub litigation, Ms. Falkowski and Mr. Perry remained together in the Birmingham office on terms that few would describe as cordial. In an attempt to gather evidence corroborating her charges of continuing insubordination by Mr. Perry, Ms. Falkowski secretly recorded a confrontation with him that occurred in her office on July 18, 1977. Besides insubordination, the recording revealed a regrettable stream of obscenities and racial epithets on Mr. Perry's part. See Appendix at 11-19 (transcript of tape recording). What Ms. Falkowski's conduct might have been in the absence of a recording device known only to herself, one can only conjecture. The incident served to underscore, however, the depths to which professional relationships and behavior had sunk in the Birmingham office by mid-1977.

On the basis of the tape-recording incident, the EEOC moved to terminate both Mr. Perry and Ms. Falkowski from its employ. The Commission justified its action in Mr. Perry's case on the basis of the tape's content. In Ms. Falkowski's case, the Commission found that she had violated an internal agency order prohibiting nonconsensual recording of official conversations by agency personnel. See Perry v. Golub, 464 F.Supp. at 1019 & n. 2 (citing EEOC Order No. 165). ⁹

Provoked by Ms. Falkowski's ruse and disturbed by the resulting personnel action, Mr. Perry filed suit in 1978 in federal district court against Ms. Falkowski and EEOC chairwoman Eleanor Norton. The complaint sought a declaratory judgment that Mr. Perry's constitutional and statutory rights had been violated, and prayed for compensatory and punitive...