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Reversing itself, 1st U.S. Circuit Court of Appeals eased the exhaustion requirement for workers who claim that they faced retaliation after accusing their employers of discrimination. In a March 30 ruling, a three-judge panel ruled that even though the plaintiff never filed a retaliation charge with the Equal Employment Opportunity Commission, she was entitled to the $129,111 awarded to her by a U.S. District Court jury on a subsequent retaliation claim. A federal court judge had overturned the jury verdict, citing Johnson v. General Electric, 840 F.2d 132 (1st Cir. 1988). The court’s change in course means that the 1st Circuit is no longer at odds with all other circuits that have considered what steps a worker must take to exhaust administrative remedies before being permitted to file a Title VII retaliation claim in court. In Nancy Clockedile v. New Hampshire Dep’t of Corrections, No. 00-1541/00-1578, prison counselor Nancy Clockedile accused the New Hampshire Department of Corrections of retaliating against her after she filed a sexual harassment complaint with the EEOC. Clockedile did not notify the EEOC about several actions she considered retaliation for her initial complaint, including her relocation to a desk in a hallway, reassignments and interference with her visits with her boyfriend, a prison guard. In October 1996, the EEOC issued Clockedile a “right-to-sue letter” based on her sexual harassment complaint. During this time, Clockedile made additional complaints to supervisors (but not the EEOC) about harassing treatment she and other women were subjected to by prison employees. Judge Paul Barbadoro of the U.S. District Court for the District of New Hampshire reluctantly overturned the jury’s verdict, writing that “I would not require a claimant in Clockedile’s position to return to the EEOC before filing a post-charge retaliation claim if I were writing on a clean slate.” Among other objections, he said that such a rule did not further the conciliatory purposes of exhaustion since compromise was unlikely once accusations of retaliation were in the air. Bardadoro concluded, however, that the 1st Circuit’s decision in Johnson compelled him to deny relief. In its recent ruling, written by Judge Michael Boudin, however, the 1st Circuit panel announced a new rule: “Retaliation claims are preserved so long as the retaliation is reasonably related to and grows out of the discrimination complained of to the agency.” The panel did not appear confident, however, that this rule would be the end of the question, noting that the positions of the various circuits are not identical but rather “converge,” and all but praying that “[s]omeday the Supreme Court will bring order to this subject.” The decision is also noteworthy from a procedural standpoint, because, ordinarily, only an en banc court will reverse circuit precedent. The three-judge panel, composed of Judges Bruce M. Selya, Michael Boudin and Norman H. Stahl, did take the unusual step of polling all active judges on the court before issuing their opinion. According to the appellate panel, Johnson created a “scope of the investigation” test for exhaustion and held that retaliation claims must be independently exhausted, because such claims are not likely to fall within the scope of an EEOC investigation of a discrimination claim that was filed before any retaliation took place. Although the panel considered Barbadoro’s objections to Johnson, including his argument that pro se litigants in the 1st Circuit might be misled by the united front presented by all other circuits, what was most decisive for the panel was evidence that Johnson relied on incorrect assumptions about what the EEOC investigates. For one thing, the EEOC, appearing as amicus curiae in this case, informed the panel that retaliation would likely “have been uncovered in a reasonable EEOC investigation” of an underlying discrimination claim. Furthermore, the panel noted, the Johnson test rested on the premise that the EEOC routinely conducted full-scale investigations, something that did not occur in this and many other cases. SEXUAL HARASSMENT CHARGE The New Hampshire Department of Corrections hired Clockedile in March 1995 to work in a medium-security unit. In December 1995, Clockedile filed a sexual harassment charge with the EEOC, claiming that a unit manager had made offensive sexual remarks and egged on other prison employees to do the same, according to the decision. (Clockedile had actually filed her complaint with the New Hampshire Human Rights Commission, but the court deemed the complaint to have been filed with the EEOC because the two agencies have a work-sharing agreement.) In November 1996, according to court documents, the department’s legal counsel sent a letter to Clockedile’s supervisor, stating that: “Recently, the Human Rights Commission gave Nancy a ‘right to sue’ letter …. She is still a problem employee. She has too much time on her hands. I request that you come up with a plan by next Wednesday to better utilize her talents to keep her fully employed. This will hopefully not give her time to gossip.” In January 1997, the supervisor gave Clockedile an official warning about her “uncooperative or disruptive behavior.” Shortly thereafter, she filed suit in federal District Court, charging both sexual harassment and retaliation. In 1999, a jury denied her harassment claim, but found that she was the victim of retaliation.

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