Appeals Court Hands Compliance Office Victory

Posted March 12, 2004 at 5:37pm

Even as a federal appeals court in Denver listened to arguments on the constitutionality of the Congressional Accountability Act last week, an appellate court in Washington upheld the rights of an employee under a different provision of the statute.

In a unanimous decision that appears to be the first time an appeals court has ruled in favor of an employee under the 1995 law that applied 11 federal labor laws to Congress, the U.S. Court of Appeals for the Federal Circuit ruled that the Architect of the Capitol must provide “reasonable accommodation” to workers under the Americans With Disabilities Act.

The AOC had taken the Office of Compliance to court to challenge the office’s decision requiring a custodial worker to be reassigned to a subway operator position due to a life-threatening medical condition. The circuit court affirmed the award of $61,000 in back pay, damages, and attorneys’ fees and ordered that she be awarded a permanent reassignment to the subway position.

AOC spokeswoman Eva Malecki declined to comment, maintaining that the appellate court’s decision was a “personnel issue.”

“It’s a wonderful opinion. It’s a big deal,” said Office of Compliance General Counsel Peter Eveleth, who argued the case. “Certainly it’s a big deal for us, and I think it should encourage employees to use our processes,” as opposed to going to district court with a grievance.

The CAA provides aggrieved employees two avenues to remedy alleged violations of the act. After undergoing required counseling and mediation at the Office of Compliance, employees can either continue pursuing their claim through an administrative hearing within the independent legislative-branch agency or they can go to federal district court.

Juanita Johnson took the former route, and the outcome of her case could end up contrasting sharply with that of Rita Bastien, a former staffer in Sen. Ben Nighthorse Campbell’s (R) Colorado office (see story, p.1). Bastien took her case to district court two years ago, alleging that she was terminated because of her age. Her case was dismissed on grounds that the Constitution protected Campbell from an inquiry by the judicial branch into his activities. She appealed her case to the 10th Circuit, and, coincidentally, within hours of the oral argument Thursday in Denver, the Federal Circuit in D.C. released its decision upholding the Office of Compliance’s decision in the Johnson case.

Although the two cases differ in almost every respect — most notably, had Johnson gone to court, the Speech or Debate Clause issues that arose in Bastien’s case almost certainly would never have come up, as Johnson’s duties could in no way be construed as being tied to the legislative process — Congressional employees, regardless of where they work, now have a path validated by an appellate court to seek remedies for alleged violations of the CAA.

Johnson, who had been a custodian with the Architect for 18 years, suffered a severe asthma attack at work several years ago that required her to go to an emergency room. She was later denied a request for a different assignment within AOC that she asked for due to her diagnosed chronic obstructive pulmonary disease, which doctors told her could be life-threatening with continued exposure to cleaning products and other industrial materials.

After being told that there was no other work available and sent home without pay, Johnson brought her case to the Office of Compliance. After three years of administrative proceedings, in November 2002 the OOC ordered that she be given a permanent reassignment to the Senate subway (where she continued to be temporarily detailed), and awarded back pay, damages and attorneys’ fees.

In February 2003, the AOC sought a stay from the OOC board (which had upheld the hearing officer’s decision) on the payments to Johnson pending an appeal to the Federal Circuit. The board denied the AOC’s request, prompting the Architect’s office to not only challenge the board’s decision in the case but also the board’s authority to enforce its own decisions in the absence of a direct court order.

Neither party addressed the latter assertion by the AOC in its briefs, however, and the three-judge panel’s decision did not address it either.

Nonetheless, plaintiffs viewed the decision as a complete victory for the Office of Compliance and the American Federation of State, County and Municipal Employees Council 26, which represented Johnson.

“We are glad that legal action supported by AFSME resulted in justice for Ms. Johnson,” said Council 26 Executive Director Carl Goldman. “It is incomprehensible that AOC management was unwilling to settle this case years ago. One would hope that AOC management would now look a little more carefully when faced with cases like this and be more willing to settle them, but we’ll see.”