In the fairly recent case,  Smith v. DeJoy, No. 4:23-cv-00593-RDP, 2024 U.S. Dist. LEXIS 227911, at *39-42 (N.D. Ala. Dec. 17, 2024), the court outlined the necessity of following the administrative procedures required of Federal employees making Title VII claims, and also discussed the elements that must be met for a good case. The requirements noted by Smith mentioned the necessity of following the administrative process before filing suit as outlined by Hogan v. Sec'y, U.S. Dep't of Veterans Affs., 121 F.4th 172, 174 (11th Cir. 2024). 

As you know, Title VII, 42 U.S.C.S. § 2000e-2, forbids employment discrimination on the basis of sex. This forbidden discrimination also applies to federal agencies, under 42 U.S.C. § 2000e-16(a).  The Hogan court explained that Congress permitted the Equal Employment Opportunity Commission to flesh out the details for the statutory requirements.  The EEOC did so and prescribed some procedures for federal employees to exhaust before filing a lawsuit in federal court.  The agency must designate a Director of Equal Employment Opportunity (EEO Director) who works directly under the head of the agency. 29 C.F.R. § 1614.102. There are EEO Counselors who must be in place as part of the process to attempt an informal resolution before a formal complaint is made.

In Smith, Ms. Smith worked for the Postal Service for 23 years at a very small post office which involved a postmaster, supervisor, and the lead clerk. Ms. Smith complained of incidents of sexual touching by her female postmaster on 4 occasions. Eventually Ms. Smith was terminated based on violations of an employee manual but not by the postmaster. 

Ms. Smith exhausted some claims with the EEO but not all. She filed suit asserting broader claims in court than those heard in the exhaustion procedure. As a result, the Court dismissed all claims that were not properly exhausted. However, the Court went further to consider the merits of the claims made and found them lacking.   In particular there was a causal link missing because the postmaster did not directly fire Ms. Smith.  Smith at 29.

A review of the Smith case provides a federal agency gender discrimination “checklist”.  It is helpful to vet a good case. These are not in the order the court provided but in the order in which a client may present the facts:

1.      Is there evidence of specific acts of discrimination including dates and names of people involved? Witnesses? Corroborating evidence?

2.      Is there a protected class involved? For example, in Smith it was a class of females attracted to males, as opposed to females not attracted to males or of unknown orientation. Gender discrimination is not just based on male versus female matters.

3.      Is there adverse action such as termination or demotion or other adverse treatment?

4.      Is there evidence of qualification for the position?

5.      Is there evidence demonstrating that similarly situated people outside of the protected class were treated more favorably than the protected class?  For example, in Smith that would be females attracted to males compared to females attracted to females or females of unknown orientation.

6.      Did the aggrieved person exhaust the administrative remedies required?

a.       Was there contact with the Counselor within 45 days of the discriminatory action?

If not, can the individual credibly show that he or she was not notified of the time limit or was not aware of that time limit?

b.      If the resolution was unsuccessful, and the Counselor informed of the right to file a formal administrative complaint with the agency, was that complaint filed within 15 days?  If not, is there some justification or equitable tolling?  Very limited possibilities on that.

c.       When the agency provided a final decision, is there still time to file a federal lawsuit within the 90 days allowed after that decision?

The added requirements of exhaustion are similar to the effort to inform a human resources department or other management of the issues and provide an effort to seek a resolution. While more formal, perhaps the added process is not all bad. There are more time limits but not so daunting as to pass by on such cases.