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EEOC Silent As Department of Justice Argues New Scheme to Derail Civil Rights

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The Coalition For Change, Inc. (C4C) and advocacy partners blow the whistle on the U.S. Department of Justice's (DoJ) scheme to undermine Title VII of the Civil Rights Act (CRA) of 1964. DoJ, recently gave oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit to advance a six-year statute that would restrict the access of federal Equal Employment Opportunity (EEO) complainants to the courts.

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WASHINGTON -- On October 10, 2014, the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in the precedent setting case Janet Howard and Joyce E. Megginson v Penny Pritzker, Secretary-U.S. Department of Commerce Case Nos. 12-5370, 12-5392 Howard and Megginson, who had filed Equal Employment Opportunity (EEO) complaints arising from their employment at the Department of Commerce, appealed Judge John Bates decision from the U.S. District Court for the District of Columbia which was issued September 19, 2012. [See Memorandum Opinion, Civil Action No. 051968, Howard v Blank].

At issue on appeal is whether the district court erred in applying a six-year statute of limitations in 28 USC 2401(a) when dismissing appellants' case as untimely given that both Howard and Megginson brought the action within the specific timeframes under Title VII of the Civil Rights Act (CRA) of 1964 [42 USC 2000 e-16(c)].

The U.S. Department of Justice (DoJ), which has been representing the Commerce Department for roughly twenty (20) years in the pending race based discrimination lawsuit, argued that the Howard / Megginson suit was "untimely" under 28 USC 2401(a) which prescribes -- "that every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." The DoJ further argued that Section 2401(a) was jurisdictional, meaning that equitable tolling could not apply.

The firm, Jenner& Block, LLP, appointed by the court to do an amicus curiae brief in favor of appellants Howard and Megginson, argued that the statute raised by the DoJ's U.S. Attorney's office conflicts with Title VII of the CRA of 1964. Notably, Jenner and Block, LLP argued that 1) "the general limitations period of 28 USC 2401(a) does not apply because Congress established specific time periods in 42 USC 2000e-16 for federal employees to bring suit for employment discrimination and that 2) applying 28 USC 2401(a) to Title VII actions would force claimants to end administrative proceedings after six and half years, frustrating Congress's strong policy of encouraging claimants to pursue administrative remedies before going to court."

The appellants case, which has a lengthy history, stems from an employment race-based class action against the U.S. Department of Commerce. In brief, Janet Howard filed a class complaint in 1995 alleging that the Commerce Department violated Title VII of the CRA of 1964, by using overly subjective performance-appraisal criteria that resulted in a disparate impact on African American employees at the Department with respect to promotions and promotion-related opportunities. On July 20, 2000, the Equal Employment Opportunity Commission (EEOC) provisionally certified the class. In fiscal year 2001, Commerce created a " Class Action Suit " budgetary project fund to advance litigation against members of the Janet Howard, et al class action. After pursuing her class complaint in the administrative process for over ten (10) years, Janet Howard filed a declaration of intent with the EEOC to file a class action in federal court. Joyce E. Megginson and several others joined Janet Howard in the lawsuit filed on October 5, 2005 in the U.S. District Court of the District of Columbia.

"The six-year jurisdictional scheme the Justice Department introduced in the Janet Howard and Joyce E. Megginson v Penny Pritzker, Secretary-U.S. Department of Commerce serves to enfeeble Title VII. The argument, if accepted by the courts, would all but eliminate the ability for federal workers to file a discrimination class action since it generally takes more than six years for the agencies / the EEOC to certify and to process a class action," said Michael McCray, General Counsel, Federally Employed Women / Legal Education Fund.

"Agencies often miss regulatory timeframes for processing employees complaints within the administrative process to prolong complaints filed against them. Agency officials are able to do so without any urgency or worry because taxpayers are footing the bill," said Paulette Taylor, C4C's Civil Rights Chair. Ms. Taylor also serves as President, Black Females For Justice II (BFFJ II) at Social Security Administration, Inc., and class agent in a race-based class action discrimination case against the U.S. Social Security Administration. ( Taylor, Harley, et al v SSA , Agency Nos. SSA 03-0228, SSA 03-0224).

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Tanya Ward Jordan is the author of 17 STEPS: A Federal Employee's Guide For Tackling Workplace Discrimination. She serves as President and Founder of the Coalition For Change, Inc. (C4C). C4C is an proactive non-profit self-help organization (more...)

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