Board of County Commissioners v. United States Equal Employment Opportunity Commission

F I L E D
United States Court of Appeals
Tenth Circuit

APR 15 2005
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

BOARD OF COUNTY
COMMISSIONERS, FREMONT
COUNTY, COLORADO,

Petitioner,
v.

UNITED STATES EQUAL
EMPLOYMENT OPPORTUNITY
No. 03-9566
COMMISSION,

Respondent.

and

JAY JANSSEN,

Intervenor.

Petition for Review of an Equal Employment
Opportunity Commission Decision
(EEOC No. 11980024)

Cathy Havener Greer, (L. Michael Brooks, Jr. with her on the brief), Wells,
Anderson & Race LLC, Denver, Colorado for Petitioner.

Peter D. Keisler, Assistant Attorney General (Marleigh D. Dover, Stephanie R.
Marcus, Attorneys, Appellate Staff Civil Division, Department of Justice,
Lorraine C. Davis, Assistant General Counsel, Daniel T. Vail, Attorney, United
States Equal Employment Opportunity Commission, with him on the brief),
Washington, D.C. for Respondent.
Charlotte N. Sweeney, (Richard C. LaFond, with her on the brief), Lafond &
Sweeney, L.L.C., Denver, Colorado for Intervenor.

Before KELLY , HOLLOWAY, and LUCERO, Circuit Judges.

LUCERO , Circuit Judge.

Jay Janssen, an employee of the Fremont County Board of County

Commissioners (“Board”), filed an Equal Employment Opportunity Commission

(“EEOC”) complaint alleging that the Board retaliated against him for filing a

prior EEOC complaint. Contending that the Government Employee Rights Act of

1991 (“GERA”), 42 U.S.C. §§ 2000e-16a, 2000e-16b, and 2000e-16c, does not

protect employees from retaliation for exercising their rights under the Act, the

Board seeks reversal of the EEOC’s determination that it retaliated against

Janssen. The Board argues that GERA clearly reflects congressional intent not to

provide a right against retaliation, and that the EEOC’s recognition of such a right

violates the expressed will of Congress and the Tenth Amendment. The Board

further argues that the EEOC erred in its determination that one of the

Administrative Law Judge’s (“ALJ”) findings was not supported by substantial

evidence. For the reasons set forth below, we exercise jurisdiction under 42

U.S.C. § 2000e-16c(c) and 28 U.S.C. § 2344 and AFFIRM the EEOC’s final

decision.

2
 I

In 1993 Janssen was appointed by the Board to a position in its Emergency

Management Office. Although an appointee of the Board, he was supervised in

matters of time, attendance, and budget by the County Finance Director who acted

as the de facto County Administrator. While in this position, Janssen served the

Board on the policymaking level, and was, therefore, protected by GERA, rather

than Title VII.

Janssen was originally hired as a part time employee to prepare the County

Emergency Management Plan, and his responsibilities grew when he became a

full time employee in 1995. Although Janssen received overall satisfactory job

ratings and salary increases from 1993 to 1995, the Board received numerous

complaints concerning his interpersonal skills from various organizations with

which he was required to interact in performing his job. Janssen also experienced

interpersonal problems within the County government. Beginning in 1993, the

Finance Director, Janssen’s supervisor, developed an on-going intimate

relationship with the Finance Department clerk. Because Janssen shared office

space with the Finance Department in the County Courthouse and because he and

the clerk did not get along, this intimate relationship contributed to problems

within the office. When Janssen lodged complaints concerning the clerk with his

supervisor, the Finance Director took no action to discipline the clerk for

3
anything she did to contribute to the office problems. Ultimately Janssen filed a

complaint of third-party sexual harassment with the EEOC, claiming that he had

suffered adverse employment conditions because he had complained internally of

the ongoing relationship between the Finance clerk and his supervisor.

Immediately subsequent to its learning of the EEOC complaint in October

1996, the Board notified Janssen that they were converting the Emergency

Management position into a contract position effective January 1997. Although

Janssen submitted the lowest bid for this contract position he was not selected for

an interview. In December, after an altercation with a custodian at the

courthouse, the Board placed Janssen on administrative leave until his position

terminated. As a consequence, Janssen filed two further charges of

discrimination with the EEOC alleging that the Board placed him on leave and did

not select him for the contract position in retaliation for filing his first EEOC

complaint.

The EEOC referred all discrimination charges to an ALJ. After a hearing,

the ALJ determined that the Board retaliated against Janssen for filing the initial

charge of discrimination by: (1) placing him on administrative leave, and (2) not

selecting him for the new contract position. Awarding back pay, attorney’s fees

and costs, and equitable relief, the ALJ declined to order reinstatement and non-

pecuniary compensatory damages because she determined that Janssen had

4
“unclean hands.” The ALJ deferred ruling on the Board’s constitutional and

statutory challenges.

Appeals to the EEOC followed. Central to the Board’s appeal was its

contention that GERA did not prohibit retaliation and construing it to do so

violated the Tenth Amendment. The Board also contested the sufficiency of the

evidence underlying the finding of retaliation. On cross-appeal, Janssen

contended that the ALJ’s denial of compensatory damages based on “unclean

hands” was error. Because it interpreted § 2000e-16(b) to include a right against

retaliation, the EEOC issued its final decision which rejected the Board’s

constitutional and statutory arguments. The EEOC also reversed the ALJ’s

determination that Janssen had “unclean hands,” and awarded him $10,000 in

non-pecuniary compensatory damages for emotional distress. This appeal ensued.

II

GERA establishes our standard of review. We may set aside the EEOC’s

final order only if it was “(1) arbitrary, capricious, an abuse of discretion, or

otherwise not consistent with law; (2) not made consistent with required

procedures; or (3) unsupported by substantial evidence.” § 2000e-16c(d).

A

At the heart of this case is the interpretation of the Act. GERA provides

protection against workplace discrimination to certain state employees who are

5
excluded from coverage under Title VII of the Civil Rights Act of 1964, § 2000-

16a, 2000-16b, and 2000-16c. 1 Our review of the EEOC’s interpretation of

employment discrimination statutes is governed by Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Applying

Chevron’s two-step test, we first conduct a de novo review to determine whether

the plain language of the applicable statutory provisions clearly demonstrates

congressional intent. Id. at 842-43. If the statute is silent or ambiguous with

respect to the specific issue before the court, we must determine “whether the

agency’s answer is based on a permissible construction of the statute.” Id. at 843.

As long as the interpretation is reasonable, we must defer to the agency's

construction of the statute even though it may not conform with how we would

interpret the statute in an original judicial proceeding. Id. at 843 n.11.

At issue in this appeal is whether § 2000e-16b(a)(1) of GERA encompasses

protection against retaliation for employees exercising their rights under the Act.

As the agency entrusted with administering the Act for state employees, the

1
Title VII in pertinent part provides:
The term “employee” means an individual employed by an employer,
except that the term “employee” shall not include any person elected
to public office in any State or political subdivision of any State by
the qualified voters thereof, or any person chosen by such officer to
be on such officer’s personal staff, or an appointee on the policy
making level or an immediate advisor with respect to the exercise of
the constitutional or legal powers of the office.
42 U.S.C. § 2000e(f) (emphasis added).

6
EEOC has interpreted GERA to include such protection. However, the Board

argues that such a right is contrary to congressional intent. In 1991, Congress

enacted GERA, and extended protections against discrimination to previously

exempt state employees. 2 In so doing, Congress echoed the exclusionary language

of Title VII, specifically extending protections against discrimination based on

race, color, religion, sex, national origin, age, or disability to previously exempt

high-level state employees. 3

When interpreting a statute, we start with the language of the statute itself.

The relevant section of § 2000e-16b(a) states: “[a]ll personnel actions affecting

. . . State employees described in section 2000e-16c of this title shall be made free

from any discrimination based on – (1) race, color, religion, sex, or national

2
As originally enacted GERA protected employees of the Senate, certain
employees of the Architect of the Capitol, presidential appointees, and previously
exempt state employees. Pub. L. 102-166, §301 et seq., originally codified at 2
U.S.C. § 1201 et. seq. As originally enacted GERA had a separate provision
against retaliation and intimidation applicable to Senate employees. In 1995,
during the enactment of the Congressional Accountability Act, Congress repealed
the majority of GERA’s provisions applicable to Senate employees, reorganized
its remaining provisions, and re-codified it in Title 42.
3
GERA states:
[I]ndividual[s] chosen or appointed, by a person elected to public
office in any State or political subdivision of any State by the
qualified voters thereof – (1) to be a member of the elected official’s
personal staff; (2) to serve the elected official on the policy making
level; or (3) to serve the elected official as an immediate advisor with
respect to the exercise of the constitutional or legal powers of the
office.
§ 2000e-16c(a).

7
origin, within the meaning of section 2000e-16 of this title.” § 2000e-16b(a)(1)

(emphasis added). This quoted portion of the statute is silent as to retaliation, as

is the remainder of GERA as currently enacted at § 2000e-16(a), 2000e-16(b), or

2000-16(c).

The EEOC has interpreted the underlined language of the statute to contain

a right against retaliation because § 2000e-16 incorporates the provisions of 42

U.S.C. § 2000e-5(f)-(k), which in turn incorporates Title VII’s anti-retaliatory

provision contained in 42 U.S.C. § 2000e-5(g). The Board, however, argues that

the language, “within the meaning of section 2000e-16 of this title” merely meant

to incorporate the definition of the terms “race, color, religion, sex, or national

origin” from § 2000e-16.

“Within the meaning of section 2000e-16 of this title” is subject to two

differing interpretations, and neither it, nor GERA generally, unambiguously

addresses retaliatory discrimination. Because the statute that the Board

challenges is subject to differing interpretations, we will defer to the EEOC's

interpretation provided it is reasonable; that is, “unless it is arbitrary, capricious,

or manifestly contrary to the statute.” Chevron, 467 U.S. at 844; Pharmanex v.

Shalala, 221 F.3d 1151, 1154 (10th Cir. 2000).

We assume that Congress knows the law and legislates in light of federal

court precedent. See Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 (1979);

8
Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146 (10th Cir. 1999) . When

Congress enacted GERA in 1991, it was well-settled that retaliation claims were

actionable against the federal government under Title VII even though § 2000e-16

– the statute extending Title VII coverage to federal employees – did not

specifically create a cause of action for retaliation. See, e.g., Ayon v. Sampson,

547 F.2d 446, 449-450 (9th Cir. 1976); Hale v. Marsh, 808 F.2d 616, 619 (7th

Cir. 1986); Porter v. Adams, 639 F.2d 273, 278 (5th Cir. 1981); White v. Gen.

Serv. Admin., 652 F.2d 913, 917 (9th Cir. 1981) (by drafting § 2000e-16 to

prohibit “any discrimination,” Congress intended to bar the federal government

from engaging in all those forms of discrimination identified in sections 2000e-3

and 2000e-4 and others as well; therefore, any claims of retaliation are within the

scope of Title VII); see also Hayes v. Shalala, 917 F.Supp. 4, 4-5 (D.D.C. 1995)

(“42 U.S.C. § 2000e-16 consistently has been interpreted, both expressly and

implicitly, by this and numerous other circuits to permit retaliation claims against

the United States government”) (citing cases). We have assumed the existence of

a retaliatory claim under § 2000e-16 without directly deciding the issue. See,

e.g., Mattioda v. White, 323 F.3d 1288, 1293 (10th Cir. 2003).

Relying on Ayon and Porter, the Fifth Circuit recently held that because

§ 2000e-16 bars retaliation and § 2000e-16b(a)(1) incorporates § 2000e-16,

GERA makes retaliation, within the meaning of Title VII, unlawful. Brazoria

9
County v. EEOC, 391 F.3d 685 (5th Cir. 2004); see also Haddon v. Executive

Residence at the White House, 313 F.3d 1352, 1356-57 (Fed. Cir. 2002) (“It is

quite sensible to conclude that Congress intended for GERA’s § 2000e-16b . . . to

include reprisal.”). The Supreme Court, in interpreting similar language under

Title IX, held that because retaliation against a person who speaks out against sex

discrimination is “intentional discrimination” “on the basis of sex,” “retaliation

falls within the statute’s prohibition of intentional discrimination on the basis of

sex.” Jackson v. Birmingham Bd. of Educ., 544 U.S. (2005), 2005 WL

701076, at 4, 9 (Mar. 29, 2005).

The EEOC contends that a broad interpretation of the statute furthers the

legislative goals of protecting state employees from discriminatory conduct and

has, in furtherance of its delegated authority, enacted formal regulations

evidencing this interpretation. See 29 C.F.R. § 1603.102(a). 4 Additional support

4
GERA, § 2000e-16c, vests authority in the EEOC to adjudicate complaints
of violations of the anti-discrimination provisions of GERA and to order
appropriate relief. It is under this authority that the EEOC promulgated
regulations setting forth the administrative procedures for affected employees to
file complaints under GERA. The regulations state: covered state employees
under GERA,
who believe they have been retaliated against on the basis of race,
color, religion, sex, national origin, age, or disability or retaliated
against for opposing any practice made unlawful by federal laws
protecting equal employment opportunity, or for participating in any
stage of administrative or judicial proceedings under federal laws
protecting equal employment opportunity, may file a complaint not
(continued...)

10
for the EEOC’s interpretation comes from GERA’s legislative history. The House

Judiciary Committee Report on the Civil Rights Act of 1991 states:

[t]he Committee intends that . . . other laws modeled after Title VII
be interpreted consistently in a manner consistent with Title VII as
amended by this Act.

H. R. Rep. No. 102-40, reprinted in 1991 U.S.C.C.A.N. 694, 697. Because GERA

is modeled after the language of Title VII, interpretation of § 2000e-16(b)(a)(1) to

include prohibitions against retaliatory discrimination is consistent with judicial

interpretations of Title VII, and supports the reasonableness of the EEOC’s

interpretation.

B

The Board contends that because the original terms of GERA contained a

specific anti-retaliatory provision applying to congressional employees, Congress

cannot have intended a broader right against retaliation to be included in GERA.

Recognition that Congress included enhanced protections against retaliation and

reprisal for certain Senate employees in GERA’s original enactment does not

compel the conclusion that the language of § 2000e-16b(a)(1) does not also

4
(...continued)
later than 180 days after the occurrence of the alleged discrimination.
29 C.F.R. § 1603.102(a).

11
include general protections against retaliation for exercising rights under the Act. 5

Furthermore, the Board argues, the EEOC’s interpretation of § 2000e-

16(b)(a)(1) is unreasonable because it contradicts GERA’s procedural provisions

requiring the EEOC to adjudicate claims of discrimination under the

Administrative Procedure Act (“APA”). This is because Title VII has its own

elaborate procedural scheme, and if GERA incorporated all of § 2000e-16 by

reference, the Board argues it would have necessarily incorporated Title VII’s

procedural provisions. The EEOC’s interpretation is not contradictory, or

unreasonable, to the extent the phrase “within the meaning of section 2000e-16 of

this title” is seen to modify “discrimination,” and thereby incorporates the

substantive portions of Title VII and not the procedural provisions.

Because the language of the statute is ambiguous as to whether GERA

protects against retaliation, under Chevron we defer to the EEOC’s interpretation

5
GERA’s section 312 stated:
PROHIBITION OF INTIMIDATION. Any intimidation of, or
reprisal against, any employee by any Member, officer, or employee
of the Senate, or by the Architect of the Capitol, or anyone employed
by the Architect of the Capitol, as the case may be, because of the
exercise of a right under this title constitutes an unlawful
employment practice, which may be remedied in the same manner
under this title as is a violation.
Pub. L. 102-166, 105 Stat. 1071 (1991). GERA’s § 312 was different in scope
from Title VII’s anti-retaliation provision, and precluded intimidation and reprisal
by any Member, officer, or employee, rather than precluding retaliation only by
employers as under Title VII.

12
unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not

consistent with law.” Chevron, 467 U.S. at 844. After careful evaluation, we

conclude that the EEOC’s interpretation of GERA is reasonable and not contrary

to GERA’s purposes, 6 and therefore, we join our sister circuits in recognizing that

§ 2000e-16b(a)(1) of GERA includes protection against retaliation on the basis of

race, color, religion, sex, or national origin, within the meaning of Title VII.

III

We turn next to the Board’s contention that by interpreting GERA to

include a right against retaliation, and issuing 29 C.F.R. § 1603.102 to implement

this interpretation, the EEOC impairs the right of state subdivisions to manage

and oversee personnel matters within state governments, thereby contravening the

Tenth Amendment’s reservation to the states of powers not delegated to the

United States. U.S. Const. amend. X. Although the Board does not contest

congressional authority to provide a right against retaliation under GERA, the

Board contends that the EEOC’s interpretation of the statute in the face of

congressional ambiguity contravenes the Tenth Amendment because Congress

must make a plain statement of intent when its legislation affects a state’s control

6
Like Title VII, GERA is a broad remedial statute, and liberal definitions
are similarly necessary to carry out its anti-discrimination and anti-retaliation
purposes. See generally Hillig v. Rumsfeld, 381 F.3d 1028, 1032 (10th Cir.
2004).

13
over its officers and agents under Article I. See Gregory v. Ashcroft, 501 U.S.

452, 460-461 (1991).

We review constitutional challenges to a statute de novo. United States v.

Bolton, 68 F.3d 396, 398 (10th Cir. 1995). As stated by the Supreme Court, the

Tenth Amendment “is essentially a tautology” requiring us to determine “whether

an incident of state sovereignty is protected by a limitation on Article I power.”

New York v. United States, 505 U.S. 144, 156-157 (1992); see also Kansas v.

United States, 214 F.3d 1196, 1198 (10th Cir. 2000).

A

In Kansas we described the required Tenth Amendment analysis as follows:

“[t]hese claims are essentially mirror images of each other: if the authority to act

has been delegated by the Constitution to Congress, then it may act pursuant to

Article I; if not, the power has been reserved to the states by the Tenth

Amendment.” Kansas, 214 F.3d at 1198. If Congress has authority under, for

example, the Commerce Clause or section 5 of the Fourteenth Amendment, to

pass a particular Act, we will not rule that the Act contravenes the Tenth

Amendment. In addressing this issue in Fitzpatrick v. Bitzer, the Court stated:

There can be no doubt that [our precedent] has sanctioned intrusions
by Congress, acting under the Civil War Amendments, into the
judicial, executive, and legislative spheres of autonomy previously
reserved to the States. . . . When Congress acts pursuant to § 5, not
only is it exercising legislative authority that is plenary within the

14
 terms of the constitutional grant, it is exercising that authority under
one section of a constitutional Amendment whose other sections by
their own terms embody limitations on state authority.

427 U.S. 445, 455-456 (1976); see also City of Rome v. United States, 446 U.S.

156, 179 (1980). In Gregory, the Supreme Court reiterated that “the principles of

federalism that constrain Congress’ exercise of its Commerce Clause powers are

attenuated when Congress acts pursuant to its powers to enforce the Civil War

Amendments.” 501 U.S. at 468. In analyzing whether Congress has acted

pursuant to its Fourteenth Amendment powers, we have stated:

The Supreme Court has admonished that we should not quickly
attribute to Congress an unstated intent to act under its authority to
enforce the Fourteenth Amendment. In heeding this admonition, we
agree with the Sixth Circuit’s conclusion that if Congress does not
explicitly identify the source of its power as the Fourteenth
Amendment, there must be something about the act connecting it to
recognized Fourteenth Amendment aims before it is appropriate to
characterize legislation as passed pursuant to the Fourteenth
Amendment.
Aaron v. Kansas, 115 F.3d 813, 817 (10th Cir. 1997) (internal quotations and

citations omitted).

Because Congress did not recite its purposes in legislating the specific

provisions of GERA concerning state employees, we have scant legislative history

to assist us in interpreting § 2000e-16b(a)(1). 7 However, because GERA’s

7
To ensure an Act’s constitutionality, Congress need not recite the power
that it undertakes to exercise; Congress is not required to state the words “section
(continued...)

15
language concerning previously exempt state employees is identical to that in

Title VII’s exclusion, we may accord substantial weight to the legislative history

of the cognate Title VII provision in construing § 2000e-16b and 2000e-16c. See

Gregory, 501 U.S. at 489 (Blackmun J., dissenting); see also Lorillard v. Pons,

434 U.S. 575, 584 (1978); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,

121 (1985); Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979); EEOC v.

Vermont, 904 F.2d 794, 798 (2d Cir. 1990).

“There is no dispute that in enacting the 1972 Amendments to Title VII to

extend coverage to the States as employers, Congress exercised its power under

s[ection] 5 of the Fourteenth Amendment.” 8 Fitzpatrick, 427 U.S. at 453 n.9; see

also H.R. Rep. No. 92-238, at 19 (1971). In the floor debates on the extension of

7
(...continued)
5” or “Fourteenth Amendment” or “equal protection,” or expressly articulate its
intent to legislate under § 5. EEOC v. Wyoming, 460 U.S. 226, 243 n.18 (1983).
8
In debates, Senator Javits reemphasized the importance of the extension of
Title VII protections to state and local government employees:
. . . one of the greatest reforms in this bill is its applicability to those
who are engaged in State and local government . . . If anybody, as a
matter of morality, is entitled to equal employment opportunity, it is
certainly these people; and the only way they can get it, because the
authority so far as they are concerned is the State, is at the hands of
the United States, under the 14th amendment, Section 5 of the 14th
amendment, giving the power to Congress to enforce by appropriate
legislation the provisions of this article . . . makes it mandatory, not
discretionary, in terms of the highest morality, that we act
affirmatively on this aspect of the bill.
118 Cong. Rec. 1840.

16
Title VII protections to state employees, Senator Ervin introduced an amendment

to exempt those state employees who were chosen by elected officials or who

were close personal advisors to elected officials. 9 118 Cong. Rec 1677. In the

ensuing debates Senator Allen decried federal government encroachment on the

powers of local government that would result. See 118 Cong. Rec. 4096-4097,

4483, 4494. 10 To accommodate these Tenth Amendment concerns, when

Congress extended Title VII protections to state employees in 1972 it exempted

high-level state employees in recognition of the federalism concerns encompassed

in their inclusion. It similarly rejected coverage for congressional employees at

9
Substantial discussion of the legislative history underlying Congress’
original exclusion of certain state employees from coverage under Title VII is
included in Gregory v. Ashcroft, 501 U.S. at 487-494 (Blackmun, J. dissenting).
H.R. Rep. No. 92-238, at 19 (1971) reiterates congressional concern with
longstanding workplace discrimination by state governments. 1972 U.S.C.C.A.N.
2137, 2152-54. See also 118 Cong. Rec. 1676-1679, 1837-1840, 4096-4097,
4483-4487,4492-4495, 7567-7569.

Senator Allen stated:
10

We should not put the employees of the States, counties, and cities
under the EEOC without at the same time making the provisions of
the law applicable also to the employees of both Houses of Congress
and the various offices of both Houses of Congress and the
employees of the Members of both Houses. If it is so good for the
States, why should it not be equally good for the employees of the
Senate, employees of the House of Representatives, employees of the
Members of the Senate, and employees of the Members of the House.
Mr. President, I do not feel that the law should be applicable to the
States, counties, and cities, and I feel that this is just another instance
of the further encroachment by the Federal Government on the
powers of local government.
118 Cong. Rec. 4494.

17
that time.

Eighteen years later, GERA was passed as a portion of the Civil Rights Act

of 1991 in which Congress sought to extend Title VII-type protections against

employment discrimination to classes of employees who were previously

unprotected – specifically, previously exempt state employees, presidential

appointees, and Senate employees. Although Congress did not explicitly state

that it was acting under authority of § 5 of the Fourteenth Amendment in enacting

GERA, GERA was the last step in the sequence of broadening Title VII to

provide protections to state employees, the intermediate steps of which were

explicitly stated by Congress to be based on its Fourteenth Amendment powers.

See 118 Cong. Rec. 1676-1679, 1837-1840, 4096-4097, 4483-4487, 4492-4495,

7567-7569. GERA was also the first step in providing these same protections to

congressional employees. Less then five years later, Congress passed the

Congressional Accountability Act of 1995 (“CAA”), again expanding protections

for congressional employees by covering both House and Senate employees. Pub.

L. 104-1. 11

In passing the 1972 Title VII amendments and continuing through GERA as

part of the Civil Rights Act of 1991, Congress provided an expanding class of

As a result those portions of GERA covering Senate employees were
11

repealed, leaving GERA to cover presidential appointees and previously exempt
state employees. Pub. L. 104-1, § 504.

18
state employees with what Congress found were necessary protections from

discrimination. 12 This history of expanding protections for state employees

clearly connects GERA “to recognized Fourteenth Amendment aims.” See Aaron,

115 F.3d at 817. Despite the lack of direct legislative history on GERA, § 2000e-

16b(a)(1) is the result of a continuing congressional expansion of protections for

state employees against racial and gender discrimination, the origins of which

were expressly enacted pursuant to Congress’s § 5 authority. 13 Because of this

long history and the close relationship between GERA and Title VII, we conclude

that § 2000e-16b(a)(1) was enacted under Congress’s § 5 authority.

12
In H.R. Rep. No. 92-238, at 19 (1971), Congress discussed that:
widespread discrimination against minorities exists in State and local
government employment, and that the existence of this discrimination
is perpetuated by the presence of both institutional and overt
discriminatory practices. . . . and that employment discrimination in
State and local governments is more pervasive than in the private
sector. . . . The expansion of Title VII coverage to State and local
government employment is firmly embodied in the principles of the
Constitution of the United States. The Constitution has recognized
that it is inimical to the democratic form of government to allow the
existence of discrimination in those bureaucratic systems which most
directly affect the daily interactions of this Nation’s citizens. The
clear intention of the Constitution, embodied in the Thirteenth and
Fourteenth Amendments, is to prohibit all forms of discrimination.
Reprinted in 1972 U.S.C.C.A.N. 2137, 2154.
13
Additionally, Title VII’s protections against retaliation for complaints of
sex discrimination have been held to be proper legislation under § 5. See
Crumpacker v. Kansas Dept. of Human Resources, 338 F.3d 1163, 1172 (10th Cir.
2003).

19
 B

Gregory is relied upon by the Board to support the proposition that a plain

statement of Congress’s intent is required to subject the states to retaliation

claims under § 2000e-16b(a)(1). However, the plain statement rule does not

apply in interpreting § 2000e-16b(a)(1) because the Fourteenth and Fifteenth

Amendments have already altered the constitutional balance of federal and state

powers. Plain statements are required to clarify Congress’s intent to alter the

balance when legislating under the Commerce Clause, a showing not necessary

when it is acting under the Fourteenth and Fifteenth Amendments. The Court has

recognized this distinction between legislation enacted under Congress’s power to

enforce the Civil War Amendments from legislation enacted under other sources

of authority. Gregory, 501 U.S. at 468; 14 see also Fitzpatrick 427 U.S. at 456. 15

14
Additionally other circuits have held that Gregory applies only to cases
involving federal interference with the qualification of constitutional officers.
See, e.g., EEOC v. Massachusetts, 987 F.2d 64, 68-69 (1st Cir. 1993) (Gregory
applies only when federal law interferes with state’s definition of policy-making
officials' qualifications); Tranello v. Frey, 962 F.2d 244, 249-250 (2d Cir. 1992)
(same); Associated Builders & Contractors v. Perry, 817 F.Supp. 49, 53 n.3
(E.D.Mich. 1992) (same). GERA’s prohibition against retaliatory discrimination
is not such an interference.
15
In [section 5] Congress is expressly granted authority to
enforce ‘by appropriate legislation’ the substantive
provisions of the Fourteenth Amendment, which
themselves embody significant limitations on state
authority. When Congress acts pursuant to s. 5, not only
(continued...)

20
 A mirror image of our conclusion that Congress enacted § 2000e-16b(a)(1)

under its Fourteenth Amendment § 5 authority is that the power at issue has not

been reserved to the states by the Tenth Amendment. See Kansas, 214 F.3d at

1198. Because the statute itself does not violate the Tenth Amendment, the

EEOC’s implementing regulations which further congressional intent in GERA to

protect against retaliatory discrimination are similarly valid.

IV

Finally, the Board contends that the ALJ’s finding of “unclean hands” on

Janssen’s part was supported by substantial evidence, and challenges the EEOC’s

ruling to the contrary. Under § 2000e-16c(d), we may set aside the EEOC’s final

order on this issue only if the order itself was unsupported by substantial

evidence. In making this determination, we review the whole record or those

parts of it cited by a party. § 2000e-16c(d).

15
(...continued)
is it exercising legislative authority that is plenary
within the terms of the constitutional grant, it is
exercising that authority under one section of a
constitutional Amendment whose other sections by their
own terms embody limitations on state authority. We
think that Congress may, in determining what is
‘appropriate legislation’ for the purpose of enforcing the
provisions of the Fourteenth Amendment, provide for
private suits against States or state officials which are
constitutionally impermissible in other contexts.
Fitzpatrick, 427 U.S. at 456.

21
 Substantial evidence “requires more than a scintilla but less than a

preponderance” and is “such evidence that a reasonable mind might accept as

adequate to support the conclusion reached by the decisionmaker.” United States

Cellular Tel. of Greater Tulsa v. City of Broken Arrow, 340 F.3d 1122, 1133

(10th Cir. 2003) (internal quotations omitted). “The possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative

agency’s findings from being supported by substantial evidence.” Id.

At issue here is the EEOC’s determination that the ALJ’s finding – that

Janssen had filed his October 1996 complaint with the EEOC in bad faith – was

not supported by substantial evidence. The ALJ found that:

While [Janssen] would normally be entitled to compensatory damages
because of his [emotional] distress, because he did not have “clean-
hands” in this matter, compensatory damages will not be awarded.
. . . There is evidence in the record that demonstrates that Mr.
Janssen played the EEOC “card”, i.e. he filed an EEOC complaint
against the County and then informed his co-workers of what he had
done noting that the County could not touch him now. . . . In order to
gain leverage against the County in this situation, the Complainant
filed the EEOC complaint. Indeed, I specifically find that the
Complainant did not file the Complaint to remedy the “third-party
sexual harassment,” but to force the County to maintain his full-time
employee status as the Director of Emergency Management. This
ploy backfired on the Complainant. Consequently, Mr. Janssen is not
entitled to reinstatement because he himself acted in bad faith.

In its final order the EEOC examined the testimony relied upon by the ALJ

in reaching this conclusion, and determined that her conclusion was unsupported

22
by substantial evidence. Although the EEOC noted that the ALJ primarily based

her finding of “unclean hands” on hearsay testimony that the complainant told two

employees that no adverse action could be taken against him now that he had filed

an EEO complaint, 16 the EEOC then went further, stating: “assuming arguendo

that complainant made the statement attributed to him, the statement is

insufficient evidence to support the ALJ’s factual finding that complainant filed

his October 1996 EEO complaint in bad faith.” The Board does not contest either

the existence of Janssen’s emotional distress or the amount of non-pecuniary

damages awarded by the EEOC, but merely that the EEOC’s determination of

these issues “necessarily implicates the credibility and demeanor of witnesses,

particularly that of Janssen himself.” 17 We disagree.

16
One of the Commissioners testified he had been told that the complainant
told two employees that no adverse action could be taken against him now that he
had filed an EEO complaint. During his testimony, Janssen denied making such a
statement, and the parties point to no other evidence offered on this matter.
17
The Board focuses on the ALJ’s determination that it could not be
determined whether the conversion of Janssen’s job from full to part-time, and
eventually to a contract position was the result of the Finance Director’s actions,
and that the record did not reflect the extent of damages caused to Janssen. This
argument is inapposite. The retaliatory actions properly characterized by the
EEOC were, instead, the retaliatory placement on administrative leave, and
retaliatory non-selection for the newly created contract position, actions taken by
the Board. We conclude that the EEOC’s determination that Janssen suffered
emotional distress as a result of these actions, and its consequent award of non-
pecuniary compensatory damages are supported in the record. As we discuss
below, we review the final agency decision, not that of the ALJ.

23
 Our task in this situation is to review the decision of the agency, and not

that of the ALJ. We proceed to consider whether the findings of the agency are

supported by substantial evidence. See Fierro v. Bowen 798 F.2d 1351, 1355

(10th Cir. 1986).

Although the Board contends that where an agency has overruled an ALJ’s

credibility determination, appellate courts apply “heightened scrutiny” to decide

whether the reasons offered by the agency are supported by the record, Aylett v.

Sec. of Housing and Urban Dev., 54 F.3d 1560, 1561 (10th Cir. 1995), the EEOC

did not overrule the ALJ’s credibility determination here. In its final order the

EEOC assumed that the alleged statements were in fact made by Janssen, but

concluded, after review of the record, that the statements were insufficient to

establish bad faith on the part of Janssen in filing his initial EEOC complaint.

Having reviewed the relevant portions of the record, we agree.

In Crumpacker we recognized that Title VII permits employees to maintain

retaliation claims based on a reasonable good-faith belief that the underlying

conduct violated Title VII. This empowers employees to report what they

reasonably believe is discriminatory conduct without fear of reprisal. 338 F.3d at

1172. Thus, the issue is not Janssen’s subjective reasons for filing his original

complaint of “third-party sexual harassment” with the EEOC, but rather, whether

he had a reasonable good faith belief that the conduct complained of violated

24
Title VII. Janssen’s alleged post-filing statements may be probative of this

question, but, standing alone, they do not amount to substantial evidence

supporting a finding of bad faith as to Janssen’s belief that the complained of

conduct violated Title VII.

In summary, we conclude that GERA includes a right against retaliatory

discrimination under § 2000e-16b(a)(1), and that neither the statute nor its

implementing regulations contravene the Tenth Amendment. Further, we

conclude that the EEOC’s determination on the issues of “unclean hands” and

non-pecuniary damages for emotional distress are supported by substantial

evidence in the record. Accordingly, we AFFIRM the EEOC’s final decision and

its award of compensatory non-pecuniary damages for emotional distress.

25