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Goldsmith Law Firm Settles Decade-Long Case Against the United States Peace Corps

Posted by Leizer Goldsmith | Oct 29, 2013 | 0 Comments

Gene Lane first came to our firm in early 2003. He is a former Peace Corps volunteer and a former Peace Corps Human Resources Specialist with an entirely successful employment history with the Agency. Gene left the Peace Corps and moved to another agency, where he continued to work until his retirement a couple of years back, but missed the Peace Corps in large part because of his affinity for its mission. Gene applied for positions several times, but his applications were being ignored by the new leadership of HR, who were not familiar with his prior work.

Gene wrote a letter to the then-Director, stating that he observed that the human resources leadership was composed almost entirely of females, and that he thought he was being discriminated against as a white male. The letter was soon shared with the HR Director and the EEO Director.

Gene was subsequently interviewed for a couple of openings (of which they were many), but could tell something was wrong in the interviews and was never selected. He retained my firm and we filed a formal federal sector EEO complaint.

Gene's complaint reached an African-American EEO officer, who was already being mistreated, and had been forced to initiate her own EEO complaint against the EEO office. The responsible management official- the EEO Director Shirley Everest — responded by telling the EEO Officer that because of her complaint, she would not be promoted as previously promised. Soon thereafter, Everest told an EEO counselor that she wanted the EEO Officer fired. The Officer pressed on with her opposition by immediately alerting top Peace Corps management of what had happened. Everest then turned the tables by undertaking retaliatory discipline against the EEO Officer in the form of a proposed suspension.

The EEO Officer hired this law firm to respond to the proposed discipline and filed her formal EEO complaint. Therein, she included the information that the HR Deputy Director, Catherine Pearson, had said that Gene Lane would never be hired because he had filed an EEO complaint. She further contended that this animus was motivating a continuing policy of denying Lane employment despite his outstanding qualifications, and that the EEO Officer had been apprised of an edict by Peace Corps management that Gene would not be hired because of his prior EEO complaints.

We responded to the proposed suspension against our EEO Officer client, but the very next day after receiving our written reply, management withdrew it and replaced it with a proposed removal. That Proposal reiterated the prior charge, and added to it a contention that the EEO Officer had engaged in terminable misconduct by hiring this law firm. Management purported to assume that the EEO Officer had breached an unspecified duty of confidentiality by hiring the same law firm as another EEO complainant (Gene). I have always viewed that charge as, in essence, a contention that the EEO Officer should have covered up the retaliation against the applicant, rather than give the appearance of informing him of the facts.

We prepared a second reply, opposing the retaliatory firing Proposal, but the EEO Officer was due to be fired anyway for reasons that were not even part of the Proposal and to which she had not been given an opportunity to reply.

The EEO Officer was placed on indefinite leave without pay, a status that lasted until she submitted her resignation rather than be forced to litigate her retaliatory termination claims at the Foreign Service Grievance Board. However, the EEO Officer's attempt to mitigate her damages in this way initially backfired, as the Peace Corps would not allow her to simply resign, but instead spitefully annotated her SF-50 to note that she resigned in lieu of termination after having “breached her duty of confidentiality” and the Agency's standards of ethical conduct.

We filed our civil action for both the EEO Officer and Gene together. During discovery, the Peace Corps Deputy Director, Jody Olsen, was in my opinion to be revealed as blatantly retaliating against the EEO Officer. After her deposition, it seems that the Peace Corps was not particularly interested in further litigating out the Deputy Director's conduct or whether it was terminable misconduct for an EEO Officer to hire a lawyer who was also representing another complainant. The Peace Corps came to the table after Olsen's deposition, before the EEO Officer was even deposed, on the occasion of a settlement conference in United States District Court for the District of Columbia. Before the negotiations began that day, however, the Assistant United States Attorney advised me to send Gene home: the Peace Corps would negotiate only about the EEO Officer and would not be offering Gene anything.

At that 2008 settlement conference, we settled the EEO Officer's case. That left Gene's case still pending.

In 2009, the Peace Corps suddenly discovered thousands of pages of new documents and I re-deposed their key decision makers before moving for a default judgment at the dispositive motions deadline. The Defendant then filed a summary judgment motion. It was February 2010.

Our summary judgment opposition for Gene alleged non-selection to 8 positions. During the wait of more than three years for a ruling, during which time I filed a Notice of Supplemental Authority in part in hopes of getting the Court's attention, the case was transferred from Judge Emmet Sullivan, to Judge James Gwin, of the Northern District of Ohio.

In July 2013, Judge Gwin finally ruled on the Motions. See Lane v. Vasquez, Case No. 1:05-cv-01414; 2013 U.S. Dist. LEXIS 97512; 119 Fair Empl. Prac. Cas. (BNA) 267 (D.D.C. July 12, 2013). He granted the Defendant's Motion for Summary Judgment as to the majority of the non-selections of Gene. The only exceptions were the two non-selections that occurred closest in time to Pearson's statements that Gene would never be hired. Fortunately, that was all we really needed to get to the driver's seat.

As the ruling had those numerous problems, we filed an extensive motion for reconsideration. While that motion was pending and trial was looming, the parties met for another settlement conference in the U.S. District Court with Magistrate Judge Robinson. With the reconsideration motion in play and trial of the not-dismissed retaliatory non-selections around the corner, the Defendant finally came around. The Lane case was settled for a significant sum, ending this decade-long saga.

By The Goldsmith Law Firm | Posted on October 29, 2013

About the Author

Leizer Goldsmith

Position: Principal Born: Halifax, Nova Scotia, Canada, June 22, 1962 Bar Admissions 1988, Massachusetts 1989, District of Columbia 1992, Maryland, U.S. Court of Appeals, Fourth, Fifth and District of Columbia Circuits; 1995, U.S Supreme Court Education University of Michigan (B.A...


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