The Fourth Circuit’s decision in Cochran v. Holder addresses the issue of when a decision by the Equal Employment Opportunity Commission (EEOC) becomes “final” for the purposes of 42 U.S.C. § 2000e-16(c). The EEOC regulation allows federal employees to file a civil action for illegal discrimination by their employer within 90 days of a “final” adverse decision by the Commission.

But her lawsuit was tossed in the district court on jurisdictional grounds. Title VII generally waives immunity for federal employees in the services, i.e., "personnel actions affecting employees or applicants for employment . . . in military departments . . . [and] in executive agencies . . . ," 42 U.S.C.§ 2000e-16(a) (2000), but uniformed staff is a different matter. Some (but not all) courts have refused to consider uniformed members "employees" for purposes of this exemption.

The Board’s September 3, 2015 decision inSavage v. Department of the Armyclarifies the burden that an appellant must meet to prevail on an affirmative defense of discrimination in an adverse action appeal. While the Board held that an appellant need not meet theNassar“but for” causation standard to prove a violation of42 U.S.C. § 2000e-16(and instead can prevail by showing that discrimination was a motivating factor), the appellant ultimately must show that the prohibited personnel practice was the “but for” cause of the action,i.e., the agency would not have taken the same action in the absence of the discriminatory or retaliatory motive.Applying theMt. Healthy ­burden-shifting framework, the Board articulates the appellant’s burden as follows:In sum, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action.

The Board’s September 3, 2015 decision in Savage v. Department of the Army clarifies the burden that an appellant must meet to prevail on an affirmative defense of discrimination in an adverse action appeal. While the Board held that an appellant need not meet the Nassar “but for” causation standard to prove a violation of 42 U.S.C. § 2000e-16 (and instead can prevail by showing that discrimination was a motivating factor), the appellant ultimately must show that the prohibited personnel practice was the “but for” cause of the action, i.e., the agency would not have taken the same action in the absence of the discriminatory or retaliatory motive.Applying the Mt. Healthy ­burden-shifting framework, the Board articulates the appellant’s burden as follows: In sum, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Such a showing is sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1).

Grounds: 1. Although 42 U.S.C. § 2000e-16(a) covers retaliation against federal employees, it does not cover retaliation for opposing racial discrimination not otherwise related to an employment practice (here, alleged racial discrimination in destroying lines of donor genetic material). 2. Actions taken against plaintiff as a result of performance deficiencies, as alleged in complaint, not severe or pervasive enough to support harassment claim, nor shown to be motivated by race or sex. 3.

It applies a plain-meaning reading to the sparse language of the relevant Title VII section:"The provision of Title VII that provides federal employees with a cause of action states: '[A]n employee . . . aggrieved by the final disposition of his complaint . . . may file a civil action.' 42 U.S.C. § 2000e-16(c). As the government concedes, an employee like Payne, who did not win all of the claims raised in her EEO complaint, is aggrieved by that disposition.

May the federal government be sued in state court on a Title VII claim? Remarkably, the statute contains no provision for exclusive federal jurisdiction over such claims, and the Fourth Circuit splits 2-1 over whether there is concurrent jurisdiction.Bullock v. Napolitano, No. 10-1222 (4th Cir. Jan. 23, 2012):The federal sector provision of Title VII, 42 U.S.C. § 2000e-16, states that a federal employee "may file a civil action as provided in section 2000e-5 of this title." 42 U.S.C. § 2000e-5 then states that "[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter."

Here are two federal-sector cases to chew on. The Fourth Circuit considers whether the 90-day trigger for filing a civil action against a federal agency accrues anew under 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.405(b) when the party files a timely motion to reconsider. It holds in favor of the employee.

The employee with a Title VII claim is obliged to file a charge within 180 or 300 days, but there is no requirement that the agency complete an investigation before the employee commences a federal civil action. (Federal-sector employees, by contrast, have true "exhaustion" requirements under 42 U.S.C. § 2000e-16.) The 180/300 day period is a limitations period, only.In this case, which alleged national-origin discrimination, there was a dispute about the date when the plaintiff was informed that Home Depot was not going to hire him.

The jury gave its verdict to the Library of Congress.The D.C. Circuit affirms. The panel does backtrack from the dicta in Ginger that implies that the standard of proof in a federal employee case under 42 U.S.C. § 2000e-16(a) requires proof that an unlawful factor was the "sole" cause of the adverse decision:"We thus take this opportunity to clarify: nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of an adverse employment action. And mindful that "our words from loose using have lost their edge," Ernest Hemingway, Death in the Afternoon 63 (Scribner Classics 1999) (1932), we hereby banish the word "sole" from our Title VII lexicon.