United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 9, 2007
Charles R. Fulbruge III
Clerk
No. 06-50663
GENEVA MASSINGILL,
Plaintiff-Appellant,
versus
JIM NICHOLSON, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
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Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
The EEOC found that the Department of Veterans Affairs had
discriminated against Geneva Massingill, awarding her damages,
fees, and injunctive relief. Massingill later sued in federal
district court. Reading her complaint as seeking a partial trial
de novo on remedy, but not liability, and holding that her
acceptance of partial payments constituted a request for such a
partial trial or otherwise prevented suit, the district court
concluded that Massingill could not ask for such a partial trial.
We reverse and remand.
I
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Geneva Massingill was a Registered Nurse at a VA facility in
Waco, Texas from 1981 to 1994. In 1985, Massingill was diagnosed
with multiple sclerosis. In 1993, she suffered a back injury on
the job. During a later fitness-for-duty examination, she re-
injured her back. The VA determined that Massingill was not fit to
work as an RN. After failing to find substitute work for
Massingill, the VA fired her in 1994.
Soon after being fired, Massingill filed an EEOC complaint
against the VA, alleging disability discrimination. In 1996,
following an evidentiary hearing, the EEOC ALJ found
discrimination. The VA rejected the ALJ’s recommended decision and
issued a final agency decision finding no discrimination. Although
Massingill could have filed suit in federal court at this point,
she elected further administrative review and appealed to the
EEOC’s Office of Federal Operations in June of 1996. The OFO
reversed in July of 2000, ordering that the VA provide backpay with
interest, compensatory damages, and attorneys’ fees and post a
nondiscrimination notice at the VA. It remanded the case to the VA
to determine the specific amount of monetary relief. The VA posted
the notice soon thereafter.
In September of 2000, Massingill moved the OFO to reconsider,
seeking additional backpay, additional compensatory damages, and
frontpay.1 While that request was pending, the VA calculated
1
The OFO had ordered the VA to calculate damages based on certain
dates. Massingill urged different dates.
No. 06-50663
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Massingill’s backpay and interest, giving her two checks totaling
$4,278.77 in January of 2001. Massingill cashed those checks.
In May of 2001, the OFO refused Massingill’s request for
reconsideration, although it directed the EEOC ALJ on remand, and
not the VA, to determine compensatory damages and attorneys’ fees.
Massingill filed a petition to enforce this ruling, including a
request for more backpay. That EEOC granted that petition in part
in March of 2002, ordering another $340.08 plus interest in
backpay. The VA complied, sending Massingill another check, which
she cashed.
In December of 2003, the ALJ awarded Massingill $10,000 in
compensatory damages and $16,895.95 in attorneys’ fees. The VA
fully agreed to the award, sending checks to Massingill and her
attorney in January of 2004. The attorney cashed his check;
Massingill returned hers to the VA, appealing the award (through
the same counsel) of compensatory damages to the OFO. In May of
2005, the OFO affirmed, explaining that $10,000 was proper given
that Massingill had only pre-existing injuries that were
exacerbated. The VA sent Massingill another check for that amount.
In August of 2005, Massingill sued the VA in federal district
court, seeking injunctive and monetary relief, including $300,000
in compensatory damages. She had not then returned the second
$10,000 check. She sued under The Equal Opportunity Employment Act
of 1972, which allows government employees to sue their employers
under Title VII. The VA moved to dismiss, alternatively for
No. 06-50663
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summary judgment. Reading Massingill’s complaint as seeking a
partial trial de novo on remedy, but not liability, and holding
that her acceptance of partial payments constituted a request for
such a partial trial or otherwise prevented suit, the district
court concluded that Massingill could not ask for such a partial
trial and granted summary judgment to the VA. It denied as moot
the motion to dismiss. Massingill appeals, and has since returned
the $10,000 check to the VA.
II
We turn first to the underlying question presented on appeal -
whether a federal-sector employee suing under Title VII can request
a partial trial de novo. Once a federal-sector employee exhausts
her administrative remedies, she can file two types of civil
actions: a suit to enforce the final administrative disposition, in
which the court examines only whether the agency has complied with
the disposition, or de novo review of the disposition.2 The
question here is whether a plaintiff, under the second prong, can
seek partial de novo review. The district court concluded that she
cannot. We agree.
The D.C. Circuit thoroughly addressed the issue in Scott v.
Johanns.3 The court found that the plaintiff’s claim arose under
42 U.S.C. § 2000e-16(c), which provides a cause of action for a
party “aggrieved by [a] final disposition.” That section
2
See Scott v. Johanns, 409 F.3d 466 (D.C. Cir. 2005).
3
409 F.3d 466 (D.C. Cir. 2005).
No. 06-50663
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references § 2000e-5(g), which along with § 1981a(a)(1) provides
various remedies, including compensatory damages, “if the court
finds that the respondent has intentionally engaged in or is
intentionally engaging in an unlawful employment practice.”4 The
D.C. Circuit held that this plain text requires that “the court”
find discrimination, noting there was no reason to think that the
EEOC’s finding could be imported. It further held that this
conclusion was buttressed by Chandler v. Roudebush,5 where the
Supreme Court held that administrative findings in discrimination
cases may be evidence of discrimination. Moreover, the court
noted, Chandler held that the Equal Employment Opportunity Act of
1972 sought to accord federal employees “the same right to trial de
novo as is enjoyed by private-sector employees,” and because EEOC
discrimination findings are not binding on private-sector employers
and employees, those parties must always relitigate discrimination.
The court declined to follow Fourth and Ninth Circuit opinions to
the contrary. In sum, the court held, “[u]nder Title VII, federal
employees who secure a final administrative disposition finding
discrimination and ordering relief have a choice: they may either
accept the disposition and its award, or file a civil action,
4
Section 1981a(a)(1) makes compensatory damages available in
intentional discrimination cases “in addition to” the remedies mentioned in §
2000e-5(g), hence § 2000e-5(g)’s requirement of a judicial finding of
discrimination applies to § 1981a(a)(1) as well. See Scott, 409 F.3d at 470.
5
425 U.S. 840 (1976).
No. 06-50663
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trying de novo both liability and remedy. They may not, however,
seek de novo review of just the remedial award.”
The Tenth Circuit had come to the same conclusion for the same
reasons a couple years earlier in Timmons v. White.6 The Third
Circuit later agreed with Scott and Timmons in Morris v. Rumsfeld.7
The Eleventh Circuit then agreed with Scott, Timmons, and Morris in
Ellis v. England.8 The Fourth Circuit had come to the contrary
conclusion in Morris v. Rice,9 an opinion criticized in Scott,
Timmons, Morris, and Ellis. The Fourth Circuit recently reversed
itself en banc in Laber v. Harvey,10 overruling Morris and
explicitly joining Scott, Timmons, Morris, and Ellis. The Ninth
Circuit case to the contrary remains,11 but the critiques of the
Fourth Circuit’s overruled Morris apply equally to that case.
We agree with the weight of authority, for the reasons stated
by Scott and our other sister circuits.
III
The issue here, then, is what exactly Massingill sought - a
partial trial or a complete trial. The district court granted
summary judgment for the VA after holding that Massingill’s
6
314 F.3d 1229 (10th Cir. 2003).
7
420 F.3d 287 (3d Cir. 2005).
8
432 F.3d 1321 (11th Cir.2005).
9
985 F.2d 143 (4th Cir. 1993).
10
438 F.3d 404 (4th Cir. 2006) (en banc).
11
Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995).
No. 06-50663
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complaint asked for a partial trial, on remedy but not liability,
and that her acceptance of partial payments constituted a request
for such a partial trial or otherwise prevented suit.
Massingill’s complaint is not entirely clear. As the district
court noted, it references the EEOC’s prior finding of liability,
urges “that the amount of compensatory damages awarded [$10,000]
...was not appropriate,” and requests “compensatory damages for
[her losses] in the amount of $300,000.” These statements suggest
that she seeks a partial trial, only as to compensatory damages.
She also requests “declaratory, injunctive, and equitable relief”
and “attorney’s fees,” other forms of relief. The last page of the
complaint requests that “the Court allow Massingill a trial on the
merits as to the discrimination issues alleged in this case.” That
broad statement suggests that she seeks a complete trial, including
liability. The district court read the term “discrimination
issues” in that statement to include only the remedy, but we do
not. Having reviewed the complaint with an eye towards our liberal
notice pleading standards, we conclude that Massingill requested a
complete trial.12
Furthermore, we do not think that Massingill must disgorge or
offer to disgorge the money she has received so far for her case to
12
One might also suggest that the fact that Massingill cashed the
checks for backpay and interest but returned the checks for compensatory
damages counsels reading her complaint as a request for a partial trial,
either as to compensatory damages only or as to all damages other than backpay
only, aside from any effect her acceptance of payment might have on her
ability to sue, an issue discussed in the next paragraph. This may be so, but
it is not strong enough counsel to overcome our reading of the complaint.
No. 06-50663
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proceed.13 We recognize that, as the district court noted, two
district courts have held otherwise.14 Indeed, one of those courts
held that the defendant’s performance of the injunctive remedy and
sending to plaintiff of checks for compensatory damages and
attorneys’ fees precluded relief, even though plaintiff had
returned the former check and offered to return the latter or post
a bond for it and the checks were sent after plaintiff had filed
suit but before defendant was served.15 But there is nothing in the
statute creating the right of action, 42 U.S.C. § 2000e-16(c),
which precludes suit if the award has been partially or even
completely rendered. Defendants might complain that, having
rendered an award, they are entitle to repose, but § 2000e-16(c)
gives plaintiffs only ninety days after the final agency
disposition to sue, and it’s not unreasonable to delay such repose
for three months. This is not a situation involving the common-law
defense of satisfaction of a debt, settlement, or judgment from
some time ago, it is situation where the administrative scheme has
played out, the plaintiff has ninety days to sue, and she does so
within that time. We do not mean to encourage plaintiffs to accept
13
In addition, the district court implicitly held that the VA’s
performance of the injunctive remedy renders Massingill unable to sue. We
disagree, for the same reasons that payment of money does not preclude
Massingill’s suit and the additional reason that, if the VA could preclude
suit simply by performing the injunctive remedy, it could render all potential
plaintiffs unable to sue simply by performing right away.
14
See St. John v. Potter, 299 F. Supp. 2d 125, 129 (E.D.N.Y. 2004)
(holding that plaintiff’s acceptance of checks representing entire EEOC award
precluded him from filing suit); Legard v. England, 240 F. Supp. 2d 538, 545-
46 (E.D. Va. 2002).
15
See Legard, 240 F. Supp. 2d at 545-56.
No. 06-50663
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awards and then file suit, but we cannot conclude that Massingill
has forfeited her rights under § 2000e-16(c) in the present
circumstances.
Of course, the VA here can counterclaim against Massingill for
the amounts already paid, obtaining offset against any recovery by
Massingill and judgment against Massingill if no liability is found
or the offset is greater than the recovery.
REVERSED and REMANDED.