GVA Selected to Represent Former Government Employee in Suit Against the State of Alaska

In 1994, a Special Staff Assistant in the Office of the Governor of Alaska filed a complaint alleging a pattern of offensive, harassing and discriminatory conduct by another member of the Governor’s staff and claiming she was discriminated against on the basis of her race and gender. The accused harasser was disciplined but the complainant was terminated. She then filed a complaint [charge] with the Equal Employment Opportunity Commission (“EEOC”) including a cause of action for retaliation. Because she was a member of the governor’s personal staff, her claims fell under the Government Employee Rights Act (“GERA”), 42 U.S.C. §§ 2000e-16a et seq. – a 1991 amendment to Title VII of the Civil Rights Act.

The case languished for years while the EEOC developed rules of procedure and regulations for GERA. Meanwhile, without a job, the employee lost her health insurance and moved to Nevada. In 1997, she was diagnosed with cancer and the crushing cost of paying for cancer treatment without insurance forced her to file bankruptcy. Shortly after emerging from bankruptcy, she succumbed to cancer.

In 2005, Alaska contacted the EEOC, triggering a resumption of the case. In 2006, the EEOC denied the State’s motions to dismiss the case. Alaska argued that the EEOC could not exercise jurisdiction over the State under the 11th Amendment to the U.S. Constitution (State Sovereign Immunity), which states:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

In response to the EEOC’s ruling, the State appealed the decision to the 9th Circuit Court of Appeals. In a split decision, the 9th Circuit reversed the EEOC’s ruling in 2007. On rehearing, the 9th Circuit, issued an en banc decision in 2009 authored by Chief Justice Alex Kozinski, reversing the earlier decision and remanding the case to the EEOC for mediation and trial. The State sought a writ of certiorari from the U.S. Supreme Court but the State’s writ was denied.

After almost a year of failed mediation, the special administrator of the employee’s estate retained GVA in late 2010 to represent the estate’s claims. The case poses enormous evidentiary challenges – lost documents, long dead witnesses and more than ten years of absolute repose, but GVA is fully committed to see the case through to the end and has agreed to serve as appellate counsel if the case is appealed to the 9th Circuit and/or the U.S. Supreme Court. As British statesman, William Ewart Gladstone wrote in the late 19th Century, “justice delayed is justice denied.”