Blog Post

Steele v. Johanns, No. 05-5430 (D.C. Cir. Aug. 1, 2008); In re Navy Chaplain, No. 07-5359 (D.C. Cir. Aug. 1, 2008)

Posted by: Paul Mollica
August 01, 2008
Topic: Daily Developments in EEO Law

The D.C. Circuit drops two employment-related cases in the dog days of August: a reversal of a too-hasty summary judgment, and the sputtering-out of an Establishment Clause claim by a group of Naval chaplains.

Steele v. Johanns, No. 05-5430 (D.C. Cir. Aug. 1, 2008): Here's a plaintiff, working for the USDA, who alleges racial harassment and retaliation (plus other claims dropped on appeal). The district court granted summary judgment, no doubt by force of habit, but the panel reverses. As the opinion summarizes:

"Steele argues that the district court's decisions regarding her hostile work environment and retaliation claims rested on three legal errors. We agree. First, in determining that several of Steele's claims were time-barred, the court failed to acknowledge that a genuine issue of material fact existed as to the date of Steele's contact with an EEO counselor. Although the district court's opinion was oblique as to the scope of its ruling, that date affects both Steele's hostile work environment and retaliation claims. Second, regarding Steele's hostile work environment claim, the court adopted a timeliness rule that is inconsistent with the Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and as a consequence never reached the merits of that claim. Third, the court applied a standard for retaliation claims that is inconsistent with the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

"Although the government acknowledges that the district court erred, it invites us to review the evidence de novo and affirm on other grounds. We decline the invitation. In light of the tangled record on appeal, we lack confidence that we have all of the information necessary to conduct such a review."

So bully for Ms. Steele, who must now regretably return for another round of briefing (I am sure) on summary judgment, and perhaps yet another appeal. And so, may I also point out that the underlying events in this case occurred in 1999 and 2000? So before she gets an actual trial, the key facts will be at least a decade old! The curse of litigating a federal-sector claim!!

In re Navy Chaplain, No. 07-5359 (D.C. Cir. Aug. 1, 2008): I have reported from time to time on the on-going battle between a group of non-liturgical Protestant chaplains and the U.S. Navy, claiming discrimination of one or another stripe. The lawsuits are a legacy of a time when the Navy allegedly maintained quotas of chaplains, divided among Catholics, liturgical Protestants (Lutherans, Episcopalians, etc.), non-liturgical Protestants (Baptists, Methodists, etc.) and the all-embracing "Special Worship" category (embracing non-Christian and other Christian faiths falling into none of the three other categories).

The present action alleges that the retirement system unconstitutionally favored Catholics over other chaplains, in violation of the Establishment Clause. Although the majority opinion does not discuss the nature of the claims, the dissent sets forth the allegations in a footnote, i.e., "(1) illegal appointments to active duty through age waivers for over-age Catholic clergy, (2) the consequent illegal continuation of such clergy as chaplains to the age of 67, and (3) the eventual illegal transfer of such clergy to the Retired Reserve and subsequent recall to active duty as designated 4109 Reservists. The program is designed in part to allow Catholic chaplains who have reached their statutory separation age to continue to serve until they have completed twenty years of service and become eligible for pensions."

The district court and panel majority here find that the action is barred on standing grounds. Critically, the parties conceded a lack of personal injury:

"If plaintiffs had alleged that the Navy discriminated against them on account of their religion, plaintiffs would have alleged a concrete and particularized harm sufficient to constitute injury-in-fact for standing purposes. But plaintiffs have conceded that they themselves did not suffer employment discrimination on account of their religion. They have conceded that the Navy did not deny them any benefits or opportunities on account of their religion. See In re Navy Chaplaincy, No. 07-ms-269, slip op. at 7-9 (D.D.C. Oct. 15, 2007). Rather, they suggest that other chaplains suffered such discrimination."

The panel majority rejected an alternative argument that the chaplains had standing as taxpayers or because they had been "subjected to the Navy's 'message' of religious preference as a result of the Navy's running a retirement system that favors Catholic chaplains."

But Judge Rogers, dissenting, would have found standing based on the psychological injury they allegedly suffered by witnessing the members of one denomination receiving an extra benefit:

"Under the Establishment Clause, then, appellants' membership in a narrowly defined community - the Navy Chaplain Corps - directly affected by the 4109 program, and the message this program communicates to them as chaplains particularizes their injury-in-fact, for "[t]he practices of [one's] own community may create a larger psychological wound than someplace [one is] just passing through," by making one feel like a "second class citizen[]." This directly follows from Chaplaincy and Supreme Court precedent, both of which the court misconstrues. Because appellants' injury-in-fact is traceable to the Navy's 4109 program and is likely to be redressed by holding that the program is unlawful and enjoining preferential treatment of 4109 chaplains and the message it sends to appellants, they also meet the other prongs of the standing test." [Citations omitted.]

Given this group's history and tenacity, I fully expect more action in this case, including a petition for rehearing en banc and a petition for writ of certiorari to the U.S. Supreme Court.