This is a fitting story for Black History Month.

Cassandra M. Menoken was a top EEOC attorney two decades ago when she applied to the U.S. Office of Personnel Management (OPM) to work as a federal Administrative Judge (ALJ).

At that time, more than 90% of ALJs were white males.

ALJs preside over administrative hearings for federal agencies across the country.

The OPM was using a scoring system to rank ALJ applicants that gave preference to applicants with experience working as partners in a large (200 member) law firms - experience that most African Americans (and women) lacked due to discrimination. Menoken, an African American, received a lower score because her work experience was in public sector primarily for a federal agency. She knew it was unlikely she would be appointed.

Menoken could have shrugged and moved on... but she didn’t.

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The Complaint

Menoken filed a discrimination complaint against OPM with the EEOC in 1994, a required precursor to filing a federal lawsuit. Little did Menoken know this complaint would result in years of turmoil that exacted an enormous personal and physical toll which continues to this day.

In 2002, the EEOC hired an Administrative Judge to hear the case who agreed with Menoken that OPM’s “partner in a large law firm” criteria had a race-based disparate impact. He ordered OPM to stop using the criteria and to adjust the scores of applicants who had been adversely affected. Menoken says the OPM did not comply and the EEOC refused to used its authority to force the OPM to do so.

Menoken was left in a position of conflict with her superiors, whom she says effectively allowed OPM to continue its discrimination.

The OPM did not completely eliminate “partner” preference in ALJ appointments until 2007 when it changed its qualifying process, says Menoken.

Hostile Workplace

Menoken says officials at EEOC’s headquarters in Washington, D.C., began a campaign of intimidation and abuse to get her to drop her claims against EEOC by, for example, improperly converting her paid leave to “leave without pay” and interrupting her health insurance.

Menoken said she retired in 2019 in the face of increasingly aggressive efforts to get her out.

She had filed a lawsuit in 2016 alleging the EEOC had subjected her to a hostile workplace, denied her reasonable accommodations, and deliberately interfered with her pay and benefits because she filed the discrimination complaint against the OPM. The lawsuit was summarily dismissed, forcing her to file an appeal in the U.S. Court of Appeals for the District of Columbia Circuit.

The appeals court reinstated Menoken’s lawsuit in an important ruling - a matter of first impression in the circuit - that held an independent claim of “interference” can be asserted in a disability discrimination lawsuit. The EEOC had disputed that.

Menoken scored another victory when U.S. District Judge Dabney L. Frierich earlier this month rejected the EEOC’s latest motion for dismissal, ruling the case can proceed to a jury trial on Menoken’s claims the EEOC subjected her to a hostile work environment and violated her rights under the Rehabilitation Act of 1973.

"A reasonable juror could conclude that, in 2013, the [EEOC] chair made 'deliberate attempts to affect an employee's finances and access to healthcare' that were both sufficiently severe to constitute a hostile work environment," Judge Frierich said.

One issue in the case involved the EEOC’s “offer” to grant Menoken’s request for a reasonable accommodation consisting of paid leave if she would sign a waiver agreeing not to file any legal claims against the EEOC. After Menoken rejected the “offer,” the EEOC failed to process her request for paid leave for seven weeks. “[A] reasonable juror could conclude the Chair improperly delayed processing Menoken’s request based upon a ‘false justification,’” ruled Judge Frierich.

BLACK HISTORY MONTH

The purpose of Black History Month is to celebrate people like Menoken who paid a heavy price to ensure that African Americans receive the benefit of America’s civil rights laws.

In 2022, the recruiting firm Zippia.com reports, 53.6% of Administrative Law Judges were women and 46.4% were men. Whites comprised 76.1% of ALJs, followed by Hispanic (7.6%), Asian (6.2%) and African American (5.4%).

It is ironic that Menoken’s complaint about race discrimination spurred a two-decade struggle with the EEOC, the federal agency that is supposed to protect the rights of African Americans.

A private sector employer might have found a way to settle the case long ago but there is no incentive for a federal agency to do so. Federal agencies have “deep pockets” courtesy of U.S. taxpayers.

Ultimately, the EEOC continues to litigate, despite its losses, because taxpayers are footing the bill.

Moreover, the EEOC knows it can outlast Menoken because the government will always have attorneys to keep the litigation going in perpetuity. And each year Menoken gets one year older.