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1st Circuit: Retaliation Claim Against New Supervisor Defeated

By Scott M. Wich   5/16/2008
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In a case of first impression, the 1st U.S. Circuit Court of Appeals highlighted the significance of exhausting administrative remedies before the Equal Employment Opportunity Commission (EEOC) prior to pursuing court relief for claims of Title VII violations. A retaliation claim, for which no EEOC charge was filed, may proceed when it relates to a discrimination charge filed with the EEOC. However, the court concluded, such a retaliation claim must be dismissed when there has been no exhaustion of administrative remedies on the related discrimination charge.

Gerardo Franceschi was an associate chief of staff in the Ambulatory Care Service of the Veterans Administration Medical Center in San Juan, Puerto Rico. In 2001, he was passed over for a promotion to chief of staff by Sandra Gracia-Lopez, an associate chief of staff from another department. Soon thereafter, Gracia-Lopez began noting deficiencies in Franceschi’s areas of responsibility. Through 2002 and 2003, Gracia-Lopez and Franceschi discussed various performance issues.

On April 1, 2003, the Medical Center’s equal employment opportunity officer met with Franceschi to investigate allegations of preferential treatment toward a female employee with whom he was romantically linked. During this investigation, Franceschi raised an unrelated allegation—that he was being harassed by Gracia-Lopez, through alleged abusiveness of her review of his performance.

On March 4, 2004, Gracia-Lopez gave Franceschi a “low satisfactory” evaluation for his 2003 annual review, in contrast to the “high satisfactory” rating in his prior evaluation. Three weeks later, Franceschi filed a charge with the EEOC asserting gender harassment and discrimination. In the ensuing months, Franceschi received memos from Gracia-Lopez noting his low performance and need for improvement.

On June 7, 2004, the EEOC dismissed the portion of Franceschi’s charge alleging unlawful harassment, retaining the discrimination claim for further investigation. On July 8, 2004, Gracia-Lopez issued another poor evaluation to Franceschi and demoted him to the position of staff physician. Two weeks later, while the discrimination portion of his EEOC charge was still pending, Franceschi filed a suit in federal court claiming unlawful harassment and discrimination pursuant to Title VII. He also asserted a claim of retaliation based on his filing of a charge with the EEOC.

Prior to filing a lawsuit pursuant to Title VII, an employee must exhaust his or her “administrative remedies.” Title VII provides the EEOC with the first opportunity to investigate discrimination claims. As such, claims in court can be brought only when the EEOC issues a right-to-sue letter to the employee. Due to the fact that Franceschi’s charge remained pending at the time he filed his federal court lawsuit, the appeals court affirmed the dismissal of his harassment and discrimination claims.

Franceschi never filed a charge with the EEOC alleging retaliation. However, as the court noted, retaliation claims are not subject to a defense based on a failure to exhaust administrative remedies when the claim relates to and arises from a charge of discrimination. In essence, courts generally permit retaliation claims for which no EEOC charge had been filed to be bootstrapped to related discrimination claims.

However, in a case of first impression for the 1st Circuit, the court determined whether a retaliation claim can be bootstrapped when there was no exhaustion of administrative remedies for the related discrimination charge. Agreeing with the decision of several sister circuits, it concluded that such a claim also must fail.

Franceschi v. United States Department of Veteran Affairs , 1st Cir., No. 06-2677 (Jan. 30, 2008).

Professional Pointer: It is not uncommon to find a new supervisor to be stricter or more demanding of those reporting to her. Often, it is the very laxness of a supervisor that gives rise to the placement of a more effective manager. However, companies must be aware that, in such situations, stricter rules enforcement or higher expectations can be misinterpreted by employees and give rise to claims of discrimination or union grievances. For example, Franceschi’s sudden drop in performance levels may have been the product of heightened standards, as opposed to alleged discrimination. Clear communication to employees about job expectations, coupled with monitoring of the disciplinary activity of new supervisors, serves well to limit potential problems.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York.

Editor’s Note: This article should not be construed as legal advice.

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