July 31, 2012 Judge's Disability Case Against EEOC Revived
By TIM HULL
Courthouse News (CN)
The 9th Circuit revived a former administrative law judge's disability discrimination case against the Equal Employment Opportunity Commission.
Mary Bullock worked as an ALJ for the commission from 1999 to 2007. She has Multiple Sclerosis and Systemic Lupus.
She originally filed her complaint alleging disability discrimination and retaliation in 2003, to mixed results. A judge found that the EEOC had retaliated against her for making the charges, but that she was not qualified to bring them because she couldn't do her job with or without accommodation.
The judge awarded Bullock $25,000 in nonpecuniary damages, $108,680 in attorney's fees and $7,823.24 in costs.
Bullock then filed an optional administrative appeal with the EEOC, but soon withdrew it in favor of a federal lawsuit in San Diego. Presiding U.S. District Judge William Hayes dismissed the case, holding that Bullock had failed to wait the requisite 180 days to file her lawsuit after withdrawing her appeal, and thus had not yet exhausted her administrative remedies.
A three-judge panel of the federal appeals court reversed from Pasadena on Monday, clarifying the 180-day rule in cases where a plaintiff files suit after withdrawing an optional appeal with the EEOC.
"In sum, we hold that an aggrieved employee subject to the procedural rules of Title VII exhausts her administrative remedies by filing a formal complaint for adjudication by an ALJ," wrote Judge Judge William Fletcher for the unanimous, three-judge panel. "Once final agency action has been taken on her complaint, she has the option of either filing an administrative appeal or filing suit directly in federal district court within 90 days of receiving notice of the agency action. If the employee files an optional administrative appeal, she may withdraw that appeal and file suit in district court without waiting 180 days from the filing of the notice of appeal. The employee's lawsuit in district court may proceed even though the employee filed and then withdrew an administrative appeal. As Bullock filed suit within 90 days of receiving notice of final agency action on her complaint, we have no occasion to decide whether an employee's lawsuit could proceed if the employee prematurely withdrew from an administrative appeal and filed suit more than 90 days after receiving notice of final agency action on her complaint."