Rehabilitating a Federal Supervisor's Reputation Through a Claim of

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Title VII and EEOC case law have created an almost blanket protection for

defamatory statements made in the form of allegations of harassment

or discrimination in the federal workplace. In this environment, federal

supervisors would do well to exercise caution before resorting to the intui-

tive remedy of a defamation claim. Although there are some situations

where an employee may engage in action so egregious that a claim of

defamation is a good option, one cannot escape the fact that supervisory

employment in the federal workplace comes with an increased risk of

defamatory accusations for which there is no legal remedy.

by daniel Watson

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Rehabilitating a Federal

Supervisor’s Reputation

Through a Claim of

Defamation

ohn Doe is a supervisor for a federal

agency. As he was leaving the office one

night, a female subordinate, Jane Doe,

stopped and asked why her work product

had not received approval for publication.

He attempted to explain that he had already

documented his critique via e-mail and that

the product was simply not suitable for pub-

lication. Not content to drop the issue, Jane

continued to argue with John as they exited

the building. The discussion escalated, and

Jane began accusing John of sexism and of

wanting to “keep her down,” saying that she

knew that he thought of her as little more

than a beautiful woman. The conversation

ended, but the next week, John’s agency’s

equal opportunity (EO) office informed

him that he had been accused of sexual

harassment, based on the sexual epithets

and demeaning insults he was alleged to have yelled at Jane

Doe, and sex discrimination for his refusal to publish her work.

Outraged at the false accusation, John immediately called

Jane into his office and asked her how she could have lied. Did

she not know it was illegal to lie about that type of behavior?

Jane responded by accusing John of retaliation. A week after

the incident, while speaking to a coworker, John Doe discov-

ered that the coworker had overheard the entire conversation

between John and Jane and would swear to the fact that Jane

was lying about what was said. In light of this proof, John

decided to file a defamation action in state court against Jane.

An agency-level EO investigation found that Jane’s claims

were unsubstantiated.

The facts recounted above may seem to prove that Jane

maliciously defamed John. After examining the principles

below, however, it will be clear that the outcome of a defama-

tion suit would be anything but positive for John Doe and the

agency.

When a supervisor is wrongfully accused of discrimina-

tion in the workplace, it can have a highly negative impact on

his or her reputation and career prospects. It is natural for

the supervisor to want to rehabilitate his or her reputation

through the judicial system when facing a baseless accusa-

tion. Unfortunately, a supervisor faces a myriad of obstacles

in successfully prosecuting a defamation claim, with the two

largest being overcoming the protection of privilege and

avoiding liability for retaliation. Unless the employee made

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the discrimination claim with demonstrable, knowing falsity,

those obstacles are likely to be insurmountable. Even when they

are overcome, the slightest connection between the defamation

suit and workplace conduct is likely to expose both the employer

and supervisor to liability. The following paragraphs outline the

obstacles faced by a federal supervisor in attempting to reha-

bilitate his or her reputation by pursuing a defamation claim and

how those obstacles can be overcome.

Applying State and Federal Law in the Federal Workplace

Defamation is a state tort claim, but it is governed by the First

and Fourteenth Amendments and limited by federal statutes.

The Restatement (Second) of Torts defines defamation as requir-

ing (a) a false and defamatory statement, (b) unprivileged pub-

lication, (c) fault amounting to at least negligence on the part of

the publisher, and (d) either actionability of the statement irre-

spective of special harm or the existence of special harm caused

by the publication.

However, each state has its own variant on

the particular elements and its own rules on the circumstances

creating a privileged communication.

In addition, 15 states and

1 territory have criminal defamation statutes.

Supervisory retaliation, as a statutory claim, has a basis in

both federal and state statutes.

The federal prohibition against

retaliation for complaining of discrimination is found in the

“participation clause” of Title VII.

Federal courts examining

the “exceptionally broad protection”

of the participation clause

have held that malicious, defamatory, and incorrect assertions

are protected.

In the Seventh Circuit, any Equal Opportunity

Employment Commission (EEOC) complaint that is not “utterly

baseless” is protected from retaliation by a supervisor.

Although

the U.S. Supreme Court has found that some allegations of

harassment are so unreasonable as not to receive Title VII protec-

tion,

the EEOC has never examined a complaint as such. If the

quality of the complaints, punishment of which was considered

reprisal, is an indication, then one can infer a complete rejection

of any sort of restriction, such as that placed by the Seventh

Circuit.

This permissive attitude is especially important from

the perspective of an agency supervisor because EEOC decisions

cannot be appealed at the agency level. In effect, for the supervi-

sor and the agency, the EEOC is the court of final appeal for an

employee’s claim of retaliation and sex discrimination.

Overcoming Privilege to Bring a Defamation Claim

The first obstacle in bringing a claim of defamation is that of

privilege. If the communication that is alleged to be defamatory

was privileged, then the claim fails. Although federal statute

for communications to the EEOC establishes absolute privilege,

most claims originate in an agency’s internal EO office.

In that

case, two privileges may stand in the way of bringing a defama-

tion suit for the wrongful accusation; the intracorporate privilege

and the qualified privilege. State law governs both.

The intracorporate privilege holds that communication within

a corporation does not constitute publication.

This is justified

by an agency theory that finds that an employee communicating

on behalf of the corporation to another employee cannot consti-

tute communication to a third party since they both belong to the

same entity.

It is also supported by the public policy of encour-

aging free and candid internal communication within the corpo-

ration in pursuit of investigations of wrongdoing.

There are several different variants of the intracorporate priv-

ilege. Oklahoma has the most all-encompassing privilege, holding

that “communication inside a corporation, between its officers,

employees, and agents, is never publication for the purposes of

actions for defamation.”

Missouri’s privilege is almost as abso-

lute, only requiring that the communication be in the “due and

regular course of corporate business.”

Alaska is similar in only

requiring that the communication be in the scope of employment

and within the line and scope of the employee’s duties.

Georgia,

at the other end of the spectrum, has the more constrained view

that protected communication is limited to an employee’s com-

munication to a person in authority during an investigation.

In addition to this more general intracorporate privilege,

there is a more specific qualified privilege for complaints alleging

harassment or discrimination. A qualified or conditional privilege

exists when there is good faith intent on the part of the speaker

to protect his or her interest or in reference to which he has a

right or duty.

The code of some jurisdictions contain this com-

mon law rule,

and some jurisdictions have rejected an intracor-

porate privilege in favor of a qualified privilege, finding that the

burden of proving that the publication was not in good faith or in

pursuit of an interest or duty is sufficient protection even in the

employment context.

Jurisdictions vary on what it takes to overcome the intracor-

porate privilege. In Oklahoma, motive, intent, or truthfulness are

irrelevant to whether or not the statement is privileged because

intracorporate communication is not considered publication as

a matter of law.

In a jurisdiction such as this, the only way to

overcome this barrier is to show that the publication was not

solely intracorporate.

However, Nevada’s more nuanced intra-

corporate privilege contrasts this by stating it can be overcome

if the communication was not “in the regular course of business”

or if it was made with “actual malice.”

As if the privileges were

not confusing enough, some jurisdictions mislabel their qualified

privilege an intracorporate privilege and combine the require-

ments of the two.

In those jurisdictions, the privilege can be

overcome if it would exceed the scope of the qualified privilege

or was made with actual malice.

State treatment of the qualified privilege is much more

consistent than state treatment of the intracorporate privilege.

The qualified privilege can be overcome by a showing that the

publication was made with actual malice, reckless disregard for

the truth, or excessive publication.

Malice can be inferred from

knowledge of falsity or the defendant’s doubt of the statement’s

truth.

In general, excessive publication is publication to a party

not necessary to protect the interest asserted.

Some jurisdictions find that a showing of common law malice

(a malicious motive for offering statements, even if believed to

be true) is sufficient to overcome the privilege.

Although a dem-

onstration of common law malice is not sufficient to overcome

the constitutional requirement of actual malice for defamation

of a public figure, it will still suffice to compromise the qualified

privilege if it was the primary motive for making the statement.

The logic behind allowing a malicious motive to defeat a qualified

privilege is that the privilege extends to good faith attempts to

protect an interest.

If the motive for publishing the defamatory

statements is malicious rather than the protection of an interest,

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it makes sense to terminate the protection of the privilege meant

only to protect an interest.

As a practical matter, to overcome the privileges discussed

and mount a successful defamation claim requires that the

plaintiff have admissible proof that the falsity of the statements

was known or suspected, or that the defendant made the state-

ments out of a primarily malicious motive, or that the publication

exceeded what was necessary to protect interest. In Dragonas

v. School Comm., the Massachusetts Appeals Court found that

even when a principal was speaking to parents about their inter-

est in protecting their children, if the false statements were

made from a primarily malicious motive, then the principal could

still be liable for defamation.

In another instance, the Virginia

Supreme Court remanded a case for trial because the jury had

been limited to evaluating whether there was a personal spite

or ill will in determining malice.

The court affirmed that the

privilege could also be violated by statements in bad faith or

those made in strong and abusive language disproportionate to

the occasion.

Ultimately, the easiest route is to be able to prove

knowing falsity. If it comes down to proving common law malice,

the outcome of the defamation suit may be considerably less

certain and subject to a jury’s determination of the defendant’s

primary motivation when making the statements. Proving malice,

actual or otherwise, is a difficult endeavor and thus rarely suc-

cessful.

Privilege can also cause another upsetting outcome in cases

arising in the federal workplace. If the statements made were

privileged, then they are likely to be within the scope of employ-

ment and the supervisor runs the risk of having the United States

substituted as a defendant and the case permanently removed

to federal court.

Of course, the question of whether or not the

statements made were within the scope of employment is one

that federal law mandates be determined by state law.

Although

a comprehensive evaluation of state law on scope of employment

is beyond the reach of this article, generally, privileged state-

ments are considered in the scope of employment.

Finally, if

the United States substitutes itself as the defendant, the burden

of proof to show the substitution illegitimate rests on the super-

visor.

Having the United States substituted as a defendant has two

related effects: (a) more than likely, the case will be dismissed

on the grounds of sovereign immunity; and (b) even if it is not

dismissed on those grounds, there will be an additional round

of litigation on the scope of employment issue.

The story of

Robert McKee and Denise Quick illustrates the effect that such

a substation can have. Ms. Quick accused Mr. McKee of sexual

harassment and racial discrimination. These allegations were

found to be of no merit, and Mr. McKee filed a state defama-

tion action against Ms. Quick in 1997.

Mr. McKee’s defamation

action against Ms. Quick was derailed by the substitution of the

United States as defendant based on the theory that Ms. Quick

was acting within the scope of employment in making alleg-

edly defamatory statements.

Finally, after a determination that

only the statements made outside the purpose and scope of the

grievance process could be “outside the scope of employment,”

the case was sent back to state court where it was eventually

dismissed by the plaintiff without prejudice four days before the

trial on Feb. 24, 2006.

Finally, exactly 1 year later (and 10 years

after the alleged defamation) the case was filed again and then

finally dismissed, as the defendant could not be located.

Clearly,

much rests on whether or not the defamatory communication

was privileged.

The Burden of Proof

Which party bears the initial burden to prove that the pub-

lication was privileged depends on the specific articulation of

the tort. The formulation found in the Restatement (Second) of

Torts is that it includes “unprivileged communication” as one of

the prima facie elements.

This shifts the evidentiary burden

to the plaintiff to prove that the communication lacked privilege.

Twenty-five states and the District of Columbia have tacitly failed

to include this element in the plaintiff’s case, thus making privi-

lege an affirmative defense,

while the remaining states have

adopted the requirement of “non-privileged” communication as

an additional element.

Escaping the Charge of Retaliation

Even if a supervisor can overcome the hurdles of actu-

ally bringing a case for defamation in state court, there is still a

chance that a successful suit could create liability for the super-

visor and the agency under Title VII’s retaliation prohibition.

The EEOC has determined that a supervisor’s state suit for

defamation could be retaliation and the employer may be held

responsible. In

Burlington N. & Santa Fe Ry. Co. v. White, the

Supreme Court affirmed the first half of the EEOC determina-

tion, holding that retaliation did not have to affect a term or

condition of employment to be actionable.

The Court adopted

the EEOC’s argument that retaliation is adverse treatment that is

based on a retaliatory motive and is reasonably likely to deter the

charging party or others from engaging in protected activity.

Even before the White decision settled the issue in 2006, most

courts recognized that a state defamation suit could constitute

retaliation if it was filed without a reasonable basis and for an

improper purpose.

Some supervisory rights to combat defamation should have

been reserved by the “based on retaliatory motive” requirement

Privilege can also cause another upsetting outcome in cases arising in the federal workplace.

If the statements made were privileged, then they are likely to be within the scope of

employment and the supervisor runs the risk of having the United States substituted as a defen-

dant and the case permanently removed to federal court. Of course, the question of whether or

not the statements made were within the scope of employment is one that federal law mandates

be determined by state law.

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of the White standard.

Unfortunately, when a defamation com-

plaint is based on a privileged communication, retaliatory motive

is presumed, even when the sexual harassment complaint that

spawned the defamation complaint is determined to be without

merit.

If there is a plausible argument that the communication

forming the basis for the defamation complaint is not privileged,

it is unclear if retaliatory motive would still be considered admit-

ted, assuming that the information was ultimately found privi-

leged.

Cassidy v. Virginia Carolina Veneer Corporation stands

as a cautionary tale for falsely accused, hot-headed supervisors

or company owners. In that case, an employee quit her job with

the company after she was allegedly denied permission to take

off for a medical appointment.

After leaving the company, she

filed a complaint with the EEOC, accusing her supervisor of sex

discrimination.

Her supervisor immediately filed a defamation

suit in state court and the employee responded by modifying

her EEOC complaint to allege retaliation.

Even though the

EEOC found there was no cause to believe that the actions of

the company constituted discrimination, the court found that the

filing of the defamation suit was retaliation.

Because the only

publication mentioned in the defamation complaint was the filing

of an EEOC complaint, the court found this to be retaliation as

a matter of law because alleging defamation by a communication

to which absolute privilege extended constituted an admission of

malice.

Thus, if a defamation suit is to be filed by a supervisor, it

is of utmost importance that the alleged defamatory remarks not

be privileged. Although the Fourth Circuit’s position in Cassidy

sits at the far end of spectrum, even the Fifth Circuit, which

sits on the opposite end of the spectrum, seems to suggest that

defamation claims without an “arguable basis” suggest a retalia-

tory motive.

The EEOC uses this distinction of merit to limit the principle

that companies and supervisors have a constitutional litigation

privilege to bring defamation suits.

In effect, it is a double or

nothing gamble: if a supervisor wins the defamation suit, then it

was protected by the litigation privilege, but if he or she loses,

then it may stand as evidence of retaliatory motive.

The EEOC

approach to retaliatory defamation claims thus seems to mir-

ror the approach of the malicious prosecution tort, allowing for

liability if the defendant in the criminal action was found not

guilty and there was no “probable cause” for the accusation that

resulted in the prosecution.

The EEOC effectively makes a

determination of whether there was probable cause or an argu-

able basis for the defamation complaint, and that becomes the

determinative factor in whether or not the suit is protected by

a litigation privilege. Thus, if the defamation complaint relies on

a privileged communication, the EEOC will determine there was

no probable cause and will conclude that the suit is evidence of

retaliatory animus and not protected by a litigation privilege.

The second half of the current EEOC position is that a federal

agency can be held accountable for the supervisor’s actions. To

do this, the EEOC must find some link between the supervisor’s

actions and the agency to establish that the agency did some-

thing “that might dissuade a reasonable worker from making or

supporting a charge of discrimination.”

Some treatises argue

that a claim or counterclaim filed by a supervisor in his own pri-

vate capacity cannot support a retaliation claim since they cannot

be attributed to an employer.

This did seem to be the holding

in the Fifth Circuit cases of Hernandez and Scrivner.

It is a

holding parroted by the EEOC when dealing with the subject.

However, the reality of the situation is that there are a myriad of

ways the EEOC can make the agency responsible for a supervi-

sor’s private suit.

In a recent case, the EEOC determined that the action of a

supervisor could be viewed as an additional incident in a continu-

ing hostile workplace claim on the basis of reprisal, making the rest

of the complaint timely.

In previous cases the EEOC held that as

little a nexus as failing to advise a supervisor against submitting a

defamation claim or not providing an employee with assistance in

defending such a claim can create agency liability.

A supervisor’s

threat at work to an employee that he would sue if defamation was

not halted is also a sufficient nexus to hold the agency liable.

Paradoxically, the EEOC has also found that certain defama-

tion suits did not create agency liability, determining that if there

is no

adverse action on the part of the agency, then it could not

have retaliated and is not responsible for the action of a super-

visor as a private citizen.

In one case, the EEOC held that a

cease-and-desist letter was appropriate to an employee making

defamatory comments and not evidence of retaliation.

The

EEOC also held that an agency could make itself immune from

the accusation of retaliation when it immediately counseled the

angry recipient of a sexual harassment complaint after he sent a

vitriolic e-mail in response to the allegation.

These contrasting

rulings predate the Supreme Court’s ruling in White and thus

cannot be explained as an increased sensitivity to retaliation in

the wake of that decision. The only way to harmonize these seem-

ingly discordant results is to conclude that while agency action

may be needed to incur liability, agency inaction where there is

responsibility or a duty to act or even the slightest action in the

workplace on the part of the supervisor can trigger retaliation

liability on the part of the agency.

Getting Around Retaliation by Filing in the EEOC

Some managers, frustrated at the potential liability and

expense of a state defamation suit, have attempted to cast

their defamation complaint as a discrimination complaint. The

EEOC has been anything but sympathetic to the plight of these

managers, affirming the dismissal of the supervisor’s complaint

because (a) the manager’s position should have allowed him or

her to discipline the employee and thus no condition of employ-

ment was changed

and (b) the EEOC has found these suits

to be an attempt to collaterally attack another proceeding (the

subordinate’s sexual harassment complaint).

If anything, these

cases teach the agency that it is better to avoid disciplining the

subordinate, even if it comes at the cost of exposing managers

to false claims.

What About John Doe?

The manager in our prefatory fact pattern, John Doe, is in

an unfortunate position. Even a completely false allegation can

cause job loss or discipline.

Frustrated subordinates can, at

a minimum, create an immense emotional and financial cost.

However, in his response, John made a couple of mistakes that

will cost him more than Jane Doe’s original accusation.

John’s first mistake was to speak to Jane on the subject of

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her complaint. Any contact with a complainant questioning

the veracity of a complaint could be construed as chilling or

burdening the use of the complaint process, making John’s

agency liable for retaliation. The extent to which John is held

personally accountable is up to the agency, but it is not a risk

John should take.

Filing a defamation claim was John’s second mistake. If John

is in a jurisdiction that follows the intracorporate privilege doc-

trine, his complaint is dead for lack of publication. Assuming the

jurisdiction does not apply the intracorporate privilege, he still

has to overcome the qualified privilege. To do so, he must prove

that Jane’s statements were excessively published, made with

actual malice, or made with reckless disregard for the truth. It

is possible that his coworker’s testimony might convince a judge

that Jane was lying about the sexual harassment. That there was

an arguable basis for Jane’s sex discrimination claim will not

make it easier for John to convince the EEOC that Jane knew

she was lying. In addition, knowing falsity does not necessarily

move the publication outside the scope of employment, and the

claim may be dismissed if the United States substitutes itself as

the defendant. Even if John manages to bring a successful defa-

mation claim, the agency will be guilty of retaliation for failing

to advise the supervisor against filing a claim of defamation and

tolerating a supervisor speaking to a subordinate in a way that

could chill the exercise of Title VII participation.

The most likely end result of our hypothetical case is that

John will be left subject to agency discipline (additional EEO

training at least) and out a considerable amount of money in

attorney fees, in addition to costing his agency additional money

and time. Although Jane may lose her sexual harassment and sex

discrimination claims, she will win on retaliation. Even though it

is hard to see what actual pecuniary damages Jane could claim,

the EEOC has a habit of awarding non-pecuniary damages that

are completely disproportionate to any actual monetary harm.

Jane’s assertions of mental anguish, sleep deprivation, stress,

nausea, and social withdrawal in response to being “yelled at”

by her supervisor will be more than enough justification for the

EEOC to pry open the agency’s pocketbook.

Conclusion

The irony is that under the guise of preventing retaliation,

the EEOC has effectively created a powerful retaliatory tool for

employees. Title VII was not designed to “arm employees with a

tactical coercive weapon” under which they can make baseless

claims simply to “advance their own retaliatory motives and strat-

egies,” but that is exactly what has happened.

After examining the case law above, the following suggestions

can help prevent federal supervisors from making the same mis-

takes as our hypothetical supervisor.

Supervisors should refrain from pursuing a defamation suit until

there is ample evidence of publication outside of the EO com-

plaint process or of knowing falsity.

If possible, supervisors should wait to act until the defamation is

particularly egregious.

• Supervisors should attempt to strictly compartmentalize their

private suit and their workplace activities, not so much as

mentioning the suit in the workplace.

• Before filing suit, supervisors should familiarize themselves

with their state’s particular rules on privilege.

• Supervisors should document any interaction with or toward

the accuser so that as much as possible they are not placed in

a situation where the EEOC is evaluating the relative believ-

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ability of the employee and supervisor.

• If an employee is disciplined for defamation, agency supervi-

sors should document clear and outrageous conduct that

occurred outside the EO complaint process.

Even if all the right steps are taken, defamation suits against an

employee for a malicious discrimination complaint involve a con-

siderable amount of risk and should be approached cautiously. In

the end, one cannot escape the fact that supervisory employment

in the federal workplace comes with an increased risk of defama-

tory accusations for which there is no legal remedy. 

Daniel Watson is a 3LE at George

Washington University Law School and

works as a litigation intern for the gen-

eral counsel’s office of a Department of

Defense Agency.

Endnotes

New York Times Co. v. Sullivan, 376 U.S. 254, 281 (1964)

(defining the limitations placed on defamation law by the First

and Fourteenth Amendments); 47 U.S.C. § 230 (section 230

of the Communications Decency Act protects online service

providers from liability for defamation).

Restatement (Second) of Torts § 558 (1977).

The Digital Media Law Project provides a useful overview of a

variety of the differences between 18 different state’s defamation

laws: www.dmlp.org/legal-guide/state-law-defamation. Kelly

Warner Law has also assembled a comprehensive database

of defamation law in all 50 states and around the world:

kellywarnerlaw.com/us-defamation-laws/.

Alabama (Ala. Code § 13A-11-163 (determined to be

unconstitutional)); Colorado (Colorado Revised Statutes §

18-13-105 (repealed in Sept. 2012), § 11-40-107 (misdemeanor

for defamation of associations remains), § 10-1-116); Florida

(Florida Statutes, § 836.01–836.11); Georgia, (O.C.G.A. §

16-11-40) (held unconstitutional in 1983); Idaho (Idaho Code,

§ 18-4801-18-4809); Kansas (Kansas Statute Annotated, §21-

6103); Louisiana (Louisiana R.S., 14:47); Michigan (Michigan

Compiled Laws, § 750.370); Minnesota (Minnesota Statutes.

§ 609.765); Nevada (Nevada Revised Statutes §§ 200.510–

200.560); New Hampshire (New Hampshire Revised Statute

Annotated, § 644:11); New Mexico (New Mexico Statute

Annotated, §30-11-1) (held unconstitutionally lacking actual

malice standard in Mata v. Anderson, 685 F. Supp. 2d 1223

(D.N.M. 2010), aff'd, 635 F.3d 1250 (10th Cir. 2011)); North

Carolina (North Carolina General Statutes, § 14–47); North

Dakota (North Dakota Century Code, § 12.1-15-01); Oklahoma

(Oklahoma Statutes Annotated, tit. 21 § 773); Utah (Utah Code

Annotated, § 76-9-404); Virginia (Virginia Code Annotated,

§ 18.2-417); Wisconsin (Wisconsin Statutes, § 942.01); and

Virgin Islands (Virgin Islands Code, Title 14, § 1172).

The federal anti-retaliation statute that speciﬁcally addresses

retaliation for a sex discrimination complaint is 42 U.S.C. § 2000e-(3)(a).

Some state legislatures have passed legislation meant to comply

with the Civil Rights Act, creating state law causes of action for

retaliation. For example, in Texas the anti-retaliation statute,

modeled after the federal statute, is found at Tex. Labor Code

Ann. § 21.055 (West).

42 U.S.C. § 2000e-(3)(a) “Discrimination for making

charges, testifying, assisting, or participating in enforcement

proceedings. It shall be an unlawful employment practice for

an employer to discriminate against any of his employees or

applicants for employment, for an employment agency, or joint

labor-management committee controlling apprenticeship or other

training or retraining, including on-the-job training programs, to

discriminate against any individual, or for a labor organization

to discriminate against any member thereof or applicant for

membership, because he has opposed any practice made an

unlawful employment practice by this subchapter, or because

he has made a charge, testiﬁed, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this

subchapter.”

Pettway v. American Cast Iron Pipe Co., 411 F.2d 998,

1006 n. 18 (5th Cir.1969).

Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th

Cir. 2000); Prouylx v. Citibank, N.A., 659 F. Supp. 972, 977-78

(S.D.N.Y. 1987); Booker v. Brown & Williamson Tobacco Co.,

Inc.,

879 F.2d 1304, 1312 (6th Cir.1989) (stating that under the

participation clause, protection “is not lost if the employee is

wrong on the merits of the charge, nor is protection lost if the

contents of the charge are malicious and defamatory as well

as wrong.” (internal citations omitted)); but see Mattson v.

Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004) (“Rather,

this Court has consistently stated that utterly baseless claims do

not receive protection under Title VII.”).

Mattson, 359 F.3d at 891; see also Payne v. McLemore's

Wholesale & Retail Stores, 654 F.2d 1130, 1137 (5th Cir. Unit A

Sept. 1981), cert. denied, 455 U.S. 1000 (1982) (affirming that

“reasonably believed” was a limiting factor on Title VII Section

704 protection).

See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270

(2001) (although a supervisor read comments from plaintiff’s

personnel ﬁle aloud and was subsequently accused of harassment,

the court found that no one could believe that Title VII had been

violated, as it was one offhand comment and its inclusion in the

personnel ﬁle was not objected to).

Boyd v. Dep’t of Transportation, EEOC Appeal No. 01955276

(Oct. 10, 1997) (the EEOC found a letter from a supervisor’s

private attorney alleging that her EO complaints constituted

defamation to be credible evidence of sex discrimination and

a lack of discipline for the manager whose attorney sent the

complaint to be retaliation).

See, e.g., Paros v. Hoemako Hosp., 681 P.2d 918 (Ariz.

Ct. App. 1984); Saini v. Cleveland Pneumatic Co., 1987 WL

11098 (Ohio Ct. App. May 14, 1987); Hurst v. Farmer, 697 P.2d

280 (Wash. App. 1985). Absolute immunity is also granted for

statements made to a state administrative agency. See, e.g.,

Gantt v. Sentry Ins., 265 Cal. Rptr. 814, 822 (Cal. Ct. App. 1990).

47 A.L.R.4th 674 (Originally published in 1986) (Alaska,

Florida, Georgia, Missouri, Nevada, Oklahoma, Pennsylvania,

Washington, New Mexico, Tennessee and Wisconsin all apply the

intracorporate privilege); Woods v. Helmi, 758 S.W.2d 219, 222

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(Tenn. Ct. App. 1988).

Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1553 (10th Cir.

1995) (quoting Magnolia Petroleum Co. v. Davidson, 148 P.2d

468, 471 (Okla. 1944)).

Hagebak v. Stone, 61 P.3d 201, 205 (N.M Ct. App. 2003)

(examining the reasoning for adopting the intracorporate

privilege rule); see also Ruth A. Kennedy, Insulating Sexual

Harassment Grievance Procedures from the Chilling Effect of

Defamation Litigation, 69

wash. l. rev. 235, 236 (1994).

Edwards v. Creoks Mental Health Servs., Inc., 505 F. Supp.

2d 1080, 1096 (N.D. Okla. 2007).

Lovelace v. Long John Silver's, Inc., 841 S.W.2d 682, 684

(Mo. Ct. App. 1992).

Hayes v. Wal-Mart Stores, Inc., 953 F. Supp. 1334, 1340

(M.D. Ala. 1996).

Agee v. Huggins, 888 F. Supp. 1573, 1581 (N.D. Ga. 1995).

24 A.L.R.4th 144 § 2[a] (originally published in 1983); See,

e.g., Roscoe v. Schoolitz, 464 P.2d 333, 336 (Ariz. 1970); Sigal

Const. Corp. v. Stanbury, 586 A.2d 1204, 1214 (D.C. 1991);

Cain v. Hearst Corp., 878 S.W.2d 577, 582 (Tex.1994); Great

Coastal Exp., Inc. v. Ellington, 334 S.E.2d 846 (Va. 1985). .

Green Acres Trust v. London, 688 P.2d 617, 624 (Ariz.

1984) (stating that because of the public and private interest

in preventing sexual harassment a qualiﬁed privilege exists for

complaints of harassment); Miller v. Servicemaster by Rees,

851 P.2d 143, 145 (Ariz. Ct. App. 1992) (public policy dictates

protecting sexual harassment complaints); see also Garziano

v. E.I. Du Pont De Nemours & Co., 818 F.2d 380, 387-88 (5th

Cir.1987) (recognizing that state and federal laws “condemn

sexual harassment as a matter of public policy”); Ga. Code Ann.

§ 51-5-7 (West) (Georgia code’s statutory establishment of a

qualiﬁed privilege for communications effecting a public duty,

a legal or moral private duty, statements meant to protect the

speaker’s interest in a matter in which he or she is concerned).

Popko v. Cont'l Cas. Co., 823 N.E.2d 184, 191 (Ill. App.

Ct. 2005) (ﬁnding that corporate interests were sufﬁciently

protected when privilege was a defense rather than an absolute

bar from liability); Luttrell v. United Tel. Sys., Inc., 683 P.2d

1292, 1294 (1984), aff'd, 695 P.2d 1279 (Kan. 1985) (ﬁnding

that the qualiﬁed privilege was a sufﬁcient protection and that a

statements made in the employment context should be examined

for knowing or reckless falsity).

Starr, 54 F.3d at 1553; Cohlmia v. Ardent Health Servs.,

LLC, 448 F. Supp. 2d 1253, 1269 (N.D. Okla. 2006).

Id.

Gordon v. Dalrymple, 3:07-CV-00085-LRH-RA, 2008 WL

2782914, at *6 (D. Nev. July 8, 2008) (ﬁnding that a letter that

went through proper channels in an internal complaint process

was in “the regular course of business”); see also Moonin v.

Nevada ex rel. Dep't of Pub. Safety Highway Patrol, 3:12-CV-

00353-LRH, 2013 WL 1628389 (D. Nev. Apr. 15, 2013).

Muhammad v. Westinghouse Elec. Co. LLC, 3:12-CV-

03298-JFA, 2013 WL 5469982, at *7 (D.S.C. Sept. 30, 2013)

(quoting the South Carolina Appeals court’s articulation of the

qualiﬁed privilege and referring to it as an intracorporate privilege

requiring good faith and excluding statements that exceeding the

scope of the occasion or were made with actual malice); Andrews

v. Virginia Union Univ., CIV. A. 3:07CV447, 2007 WL 4143080,

at *9 (E.D. Va. Nov. 19, 2007) (referring to the qualiﬁed privilege

as a qualiﬁed intracorporate privilege and ﬁnding it did not

extend to statements made with common-law malice based on

the inference of corrupt motive).

Id.

E.g., Christensen v. Weichert Ins. Agency, Inc., A-4953-

11T2, 2013 WL 6122593, at * 4 - 6 (N.J. Super. Ct. App. Div. 2013)

(known falsity, reckless disregard, or excessive publication void

a qualiﬁed privilege); Larimore v. Blaylock, 528 S.E.2d 119,

121 (Va. 2000) (citing a long history of Virginia Supreme Court

opinions holding that qualiﬁed privilege in a workplace setting

may be defeated if statements were made maliciously); see also

DeNardo v. Bax, 147 P.3d 672, 680 (Alaska 2006); Green Acres

Trust, 688 P.2d at 624; Scarpelli v. Jones, 626 P.2d 785, 791

(Kan. 1981); Dragonas v. Sch. Comm., 833 N.E.2d 679, 687

(Mass. App. Ct. 2005); Armistead v. Minor, 815 So. 2d 1189,

1193 (Miss. 2002).

Id.

Green Acres Trust, 688 P.2d at 624; Wal-Mart Stores, Inc.

v. Lane, 31 S.W.3d 282, 289 (Tex. App. 2000) (“privilege remains

intact as long as the communications pass only to persons having

an interest or duty in the matter to which the communications

relate.”); David Edler, Defamation: A Lawyer's Guide § 2:34,

Westlaw Database (updated August 2013).

Dragonas, 833 N.E.2d at 687; Se. Tidewater Opportunity

Project, Inc. v. Bade, 435 S.E.2d 131, 132 (Va. 1993); Sigal

Const. Corp, 586 A.2d at 1214.

Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 8

(1970) (suit against public ﬁgure requires showing of actual

malice); Cashion v. Smith, 749 S.E.2d 526, 533 (Va. 2013) (long

established rule that showing of common law malice will defeat

the qualiﬁed privilege); Edler, § 2:32 (providing a summary of

the various jurisdiction’s treatment of common law malice as

sufﬁcient to overcome a qualiﬁed privilege).

Edler, § 2:32.

Dragonas, 833 N.E.2d at 687.

Cashion, 749 S.E.2d at 533.

Id.

Garziano, 818 F.2d at 391 (overturning a jury award for

defamation and ﬁnding that the communication was privileged as

there was legitimate interest. The court held that actual malice

could not be met as knowing falsity could not be inferred from

the circumstantial evidence that they jury relied on even if it

was close to 50/50 call the there was not a sufﬁcient “quantum

of evidence to overcome a presumption of good faith”); Stockley

v. AT & T Info. Sys., Inc., 687 F. Supp. 764, 770 (E.D.N.Y. 1988)

(ﬁnding that evidence of malice must exceed inference and that

the plaintiff failed to establish more than “some metaphysical

doubt,” failed to present evidence beyond “mere allegations and

speculation,” and that such evidence did not constitute evidence

on which a reasonable jury could ﬁnd a breach of privilege).

28 U.S.C.A. § 2679(d) (West); Osborn v. Haley, 549 U.S.

225, 244, (2007) (holding that once the attorney general removed

a case to federal court, even if the statements made were found

to not be in scope of employment and the employee had to be

resubstituted, the case should be decided in district court and not

remanded to the state court).

28 U.S.C.A. § 1346(b)(1) (West).

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Coleman v. United States, 91 F.3d 820, 824 (6th Cir.

1996) (the following criteria determine scope of employment

under Kentucky law: “(1) whether the conduct was similar to

that which the employee was hired to perform; (2) whether the

action occurred substantially within the authorized spacial and

temporal limits of the employment; (3) whether the action was

in furtherance of the employer's business; and (4) whether the

conduct, though unauthorized, was expectable in view of the

employee's duties.”);

Pizzuto v. County of Nassau, 239 F. Supp.

2d 301, 313 (E.D.N.Y. 2003) (New York law seems to apply an

even broader principle: determining that anything which “was

done while the servant was doing his master's work, no matter

how irregularly, or with what disregard of instructions” falls

within the scope of employment).

Maron v. United States, 126 F.3d 317, 323 (4th Cir. 1997)

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 418

(1995) (ﬁnding the attorney general’s decision to substitute the

United States reviewable).

Quick v. Dep’t of the Air Force, EEOC Appeal No. 01A00116

(Aug. 13, 2002).

Allstate Ins. Co. v. Quick, 254 F. Supp. 2d 706, 713 (S.D. Ohio

2002).

Id. The Ohio Civil Case Docket Number, 1997 CV 0328, timeline

is all that remains to piece together the ﬁnal outcome of this case.

Ohio Civil Case Docket Number 2007 CV 0183 (at least this much

can be pieced together from the docket notes).

Restatement (Second) of Torts § 558 (1977).

States that do not include privilege as part of the elements of

defamation: Alabama: Delta Health Grp., Inc. v. Stafford, 887

So. 2d 887, 895 (Ala. 2004); Arizona: Saban v. Maricopa Cty., 1

CA-CV 08-0607, 2010 WL 2977553 (Ariz. Ct. App. July 29, 2010);

Arkansas: Boellner v. Clinical Study Centers, LLC, 378 S.W.3d

745, 757 (2011); Colorado: Han Ye Lee v. Colorado Times, Inc.,

222 P.3d 957, 961 (Colo. Ct. App. 2009); Connecticut: Johns v.

Brown, CV085024593, 2009 WL 1218623 (Conn. Super. Ct. Apr.

8, 2009); Delaware: Williams v. Howe, CIV.A. 03C-10-054PLA,

2004 WL 2828058 (Del. Super. May 3, 2004); Florida: Bass v.

Rivera, 826 So. 2d 534, 535 (Fla. Dist. Ct. App. 2002); Idaho:

Clark v. The Spokesman-Review, 163 P.3d 216, 219 (Idaho

2007) Indiana: Hamilton v. Prewett, 860 N.E.2d 1234, 1243

(Ind. Ct. App. 2007); Iowa: Kiesau v. Bantz, 686 N.W.2d 164, 175

(Iowa 2004); Kansas: Droge v. Rempel, 180 P.3d 1094, 1097-98

(Kan. Ct. App. 2008); Kentucky: Smith v. Martin, 331 S.W.3d

637, 640 (Ky. Ct. App. 2011); Louisiana: Cooksey v. Stewart,

938 So. 2d 1206, 1209 (La. App.), writ denied, 943 So. 2d 1087

(La. 2006); Maryland: Piscatelli v. Van Smith, 35 A.3d 1140,

1147 (Md. 2012); Massachusetts: Boyle v. Cape Cod Times,

BACV200600760A, 2009 WL 6593979 (Mass. Super. Nov. 9,

2009) , aff'd, 959 N.E.2d 457 (Mass. App. Ct. 2012); Minnesota:

Longbehn v. Schoenrock, 727 N.W.2d 153, 159 (Minn. Ct. App.

2007); Missouri: Diehl v. Fred Weber, Inc., 309 S.W.3d 309,

319 (Mo. Ct. App. 2010); New Hampshire: Sanguedolce v.

Wolfe, 62 A.3d 810, 812 (N.H. 2013); New Mexico

: Fikes v.

Furst, 81 P.3d 545, 549 (N.M. 2003); North Carolina: Craven

v. Cope, 656 S.E.2d 729, 732 (N.C. Ct. App. 2008); Ohio: Sullins

v. Raycom Media, Inc., 996 N.E.2d 553, 560 (Ohio Ct. App.),

reconsideration denied, 2013 WL 5773499 (Ohio Ct. App. Oct.

24, 2013); Oregon: Mannex Corp. v. Bruns, 279 P.3d 278, 284

(Or. Ct. App. 2012); Tennessee: Sullivan v. Baptist Mem'l

Hosp., 995 S.W.2d 569, 571 (Tenn. 1999); Texas: Avila v.

Larrea, 394 S.W.3d 646, 657 (Tex. App. 2012), reh'g overruled

(Mar. 5, 2013), review denied (Aug. 23, 2013); Virginia: Lewis

v. Kei, 708 S.E.2d 884, 891 (Va. 2011); Wyoming: Abromats v.

Wood, 213 P.3d 966, 969 (Wyo. 2009).

States that include in defamation the element of unprivileged

communication: Alaska MacDonald v. Riggs, 166 P.3d 12, 15

(Alaska 2007); California: Sanders v. Walsh, 162 Cal. Rptr. 3d

188, 194 (Cal. App. 2013); District of Columbia: Solers, Inc. v.

Doe, 977 A.2d 941, 948 (D.C. 2009); Georgia: Lewis v. Meredith

Corp., 667 S.E.2d 716, 718 (Ga. Ct. App. 2008); Hawaii: Wilson

v. Freitas, 214 P.3d 1110, 1118 (Haw. Ct. App. 2009); Illinois:

Popko v. Cont'l Cas. Co., 823 N.E.2d 184, 188 (Ill. App. Ct.

2005); Maine: Nest v. Casco Aeirie, CIV.A. CV-02-673, 2003

WL 23112401 (Me. Super. Dec. 4, 2003); Michigan: Mitan v.

Campbell, 706 N.W.2d 420, 421 (Mich. 2005); Mississippi:

Richard v. Supervalu, Inc., 974 So. 2d 944, 949 (Miss. Ct. App.

2008); Montana: Shors v. Branch, 720 P.2d 239, 245 (Mont.

1986); Nebraska: Nolan v. Campbell, 690 N.W.2d 638, 646

(Neb. Ct. App. 2004); Nevada: Clark Cty. Sch. Dist. v. Virtual

Educ. Software, Inc., 213 P.3d 496, 503 (Nev. 2009); New

Jersey: G.D. v. Kenny, 984 A.2d 921, 927 (N.J. Super. Ct. App.

Div. 2009), aff'd, 15 A.3d 300 (2011); New York: Konig v. CSC

Holdings, LLC, 112 A.D.3d 934 (N.Y. App. Div. 2013); North

Dakota: N.D. Cent. Code Ann. § 14-02-03 (West); Oklahoma:

Springer v. Richardson Law Firm, 239 P.3d 473, 475(Okla.

Civ. App. 2010); Pennsylvania: Krajewski v. Gusoff, 53 A.3d

793, 802 (Pa. Super. Ct. 2012), reargument denied (Oct. 22,

2012), appeal granted, 74 A.3d 119 (Pa. 2013); Rhode Island:

Cullen v. Auclair, 809 A.2d 1107, 1110 (R.I. 2002); South

Carolina: McBride v. Sch. Dist. of Greenville Cty., 698 S.E.2d

845, 852 (S.C. Ct. App. 2010); South Dakota: S.D. Codiﬁed Laws

§ 20-11-3; Utah

: Jensen v. Sawyers, 130 P.3d 325, 333 (Utah

2005); Vermont: Russin v. Wesson, 183 Vt. 301, 303 (2008);

Washington: Mohr v. Grant, 108 P.3d 768, 773 (Wash. 2005);

West Virginia: Belcher v. Wal-Mart Stores, Inc., 568 S.E.2d 19,

26(W. Va. 2002); Wisconsin: Schaul v. Kordell, 773 N.W.2d 454,

458 (Wis. Ct. App.2009).

42 U.S.C. s 2000e-3(a).

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64

(2006).

Id. at 65-66.

See, e. g., Power Systems, Inc. v. NLRB, 601 F.2d 936 (7th

Cir. 1979); Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th

Cir. 1996); Beckham v. Grand Affair, Inc., 671 F. Supp. 415

(W.D.N.C.1987); Cassidy v. Virginia Carolina Veneer Corp., 652

F.2d 380, 381 (4th Cir. 1981). But see Hernandez v. Crawford Bldg.

Material Co., 321 F.3d 528, 532 (5th Cir. 2003) (holding that counter

claims and law suits should not be viewed as retaliatory as long as

there was a reasonable basis because (a) there was a right to ﬁle a

claim and (b) it was not an ultimate employment decision).

White, 548 U.S. at 64.

Equal Employment Opportunity Comm'n v. Virginia

Carolina Veneer Corp., 495 F. Supp. 775, 777 (W.D. Va. 1980),

appeal dismissed, 652 F.2d 380 (4th Cir.1981).

Cassidy v. Virginia Carolina Veneer Corp., 652 F.2d 380,

381 (4th Cir. 1981).

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Id.

Id. at 381-82.

Virginia Carolina Veneer Corp., 495 F. Supp. at 777.

Hernandez v. Crawford Bldg. Material Co., 321 F.3d

528, 532 (5th Cir. 2003); Scrivner v. Socorro Indep. Sch.

Dist., 169 F.3d 969, 972 (5th Cir.1999). In an analogous suit for

fraudulent misrepresentation, a district court in the Eleventh

Circuit found that if the claim was “groundless” then it could be

a violation of Title VII. Hill v. Lazarou Enterprises, Inc., 10-

61479-CIV, 2011 WL 860526 (S.D. Fla. Feb. 18, 2011), Report

and Recommendation adopted, 10-61479-CIV, 2011 WL 860475

(S.D. Fla. March 9, 2011).

Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969, 972 (5th

Cir.1999) (“After all, companies and citizens have a constitutional right

to ﬁle lawsuits, tempered by the requirement that the suits have an

arguable basis.”).

See Quick v. Dep’t of the Air Force, EEOC Appeal No. 01A00116

(Aug. 13, 2002) (referring to the supervisor’s defamation suit

(wrongfully ﬁled in the eyes of the EEOC) the court stated that “[t]he

record reﬂects the agency's failure to enforce anti-retaliation policies.

The agency failed to adequately advise RMO against retaliating against

complainant for her Feb. 11, 1997, informal complaint and resultant

settlement agreement.”).

Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996)

(a complaint of forgery was condemned as retaliatory prosecution

when the accused was found not guilty). See also Quick v. Dep’t of

the Air Force, EEOC Appeal No. 01975552 (April 30, 1998) (citing

the malicious prosecution in Berry as a justiﬁcation for ﬁnding the

defamation in Quick retaliatory).

White, 548 U.S. at 64 (quoting Rochon v. Gonzales, 438 F.3d

1211, 1219 (D.C. Cir. 2006)).

§ 8:50.Employers' lawsuits, 1 Emp. Discrim. Coord. Analysis of

Federal Law § 8:50 (referencing Scrivner v. Socorro Indep. Sch.

Dist., 169 F.3d 969, 972 (5th Cir. 1999), which held a claim ﬁled in a

supervisors capacity as a private individual did not equate to retaliation).

Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532

(5th Cir. 2003); Scrivner v. Socorro Indep. Sch. Dist., 169 F.3d 969,

972 (5th Cir.1999).

Lewis v. United States Postal Service, EEOC Appeal No.

01883241 (June 29, 1989).

Robinson v. Dep’t of the Army, EEOC Appeal No. 0120111526

(July 28, 2011).

Quick v. Dep’t of the Air Force, EEOC Appeal No. 01A00116

(Aug. 13, 2002) (ﬁnding an agency liable for not adequately advising

a supervisor against pursuing a retaliatory private defamation suit in

response to a baseless sexual harassment complaint; and ﬁnding an

agency liable for not limiting the supervisor conduct at work from

mentioning or discussing the suit, thereby creating a hostile work

environment; although undetermined, the court found that if the

agency’s lack of assistance to the employee being sued for defamation

was based on a retaliatory motive then the agency could be liable for

damages in regard to that as well).

Boyd v. Dep’t of Transportation, EEOC Appeal No. 01955276

(Oct. 10, 1997) (concluding that the threats of state defamation action

by complainant’s manager if she continued with what he considered

defamatory complaints amounted to retaliation).

Kumpe v. Social Security Administration, EEOC Appeal No.

01983207 (March 3, 1999) (administrative law judge defamation suit

was not retaliation as there was no adverse action on the part of the

agency); Lewis v. U.S. Postal Service, EEOC Appeal No. 05890303

(June 29, 1989) (supervisor who was demoted due to witnesses

testimony during a sexual harassment proceeding in EEOC ﬁled

defamation claim in state court and witness claimed retaliation

by the agency in releasing information to assist in defamation

proceeding; but reafﬁrming that agency was not responsible for

action of supervisor as a private citizen in actually ﬁling complaint

in state court); Martinelli v. U.S. Postal Service, EEOC Appeal

No. 01880984 (June 14, 1988) (rejecting sex discrimination claim

against agency for supervisor’s private suit, reafﬁrming that agency

was not responsible for action of supervisor as a private citizen in

actually ﬁling complaint in state court).

Lyons v. Dep’t of Veterans Affairs, EEOC Appeal No.

0120062672 (Aug. 9, 2007) (agency was within right to send cease

and desist letter in response to employee publishing defamatory

statements about another employee at work).

Sikka v. Dep’t of Defense, EEOC Appeal No. 01990620 (Feb.

28, 2002) (agency was not responsible for an e-mail expressing

racial animus when the agency counseled the person sending the

e-mail against its appropriateness).

Adelman v. Dep’t of Transportation, EEOC Appeal No.

01953393 (July 11, 1996); Smith v. Dep’t of Veterans Affairs,

EEOC Appeal No. 01944012 (Dec. 30, 1994).

Smith v. Dep’t of Veterans Affairs, EEOC Appeal No. 01944012

(Dec. 30, 1994).

Catherine Burr, “False Allegations of Sexual Harassment:

Misunderstandings and Realities”

acadeMic Matters: the

JOurnal Of higher educatiOn, Oct–Nov 2011, accessed online at

www.academicmatters.ca/2011/10/false-allegations-of-sexual-

harassment-misunderstandings-and-realities/.

Id.

E.g., ***v. Dep't of the Interior, EEOC Appeal No. 0720120037

(Oct. 31, 2013) (awarding $25,000 non-pecuniary damages and $0 in

pecuniary damages); Guess v. EPA, EEOC Appeal No. 0720110029

(May 17, 2013) (awarding $100,000 in non pecuniary damages

where no other monetary harm was shown).

Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004);

see also Spadola v. New York City Transit Auth., 242 F. Supp.

2d 284, 292 (S.D.N.Y. 2003).

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and the public.

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