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Ponce v. Billington

Federal Appeals Court Clarifies Rights of Federal Workers

While siding against the worker in this case, the court delineated a standard that will help many workers in future employment discrimination cases.


Jorge Ponce, a Hispanic male of Cuban origin, was employed at the U.S. Department of Commerce when he applied for a more senior position at another agency. The person selected for the job was an African American woman whom Ponce had supervised. Ponce filed a charge of discrimination with the Personnel Appeals Board (PAB) of the Government Accountability Office. The PAB concluded that Ponce had been discriminated against based on race, national origin and gender, and that the proffered reason for his non-selection ("a better fit") was a pretext.

Ponce subsequently filed a lawsuit alleging race, sex and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964. A jury returned a verdict for the government based on what Ponce alleged were erroneous instructions that required the jury to find that discrimination was the sole cause of the adverse job action, and he appealed.

Attorneys with AARP Foundation Litigation filed AARP's friend of the court brief in conjunction with the Metropolitan Washington Employment Lawyers Association and National Employment Lawyer's Association. The brief supported Ponce's argument that the "sole cause" burden of proof imposed on him is incompatible with the provision of Title VII applicable to discrimination complaints of employees of the federal government. This so-called "federal-sector" provision requires that personnel decisions of federal government agencies must be "free from any discrimination." The identical "free from any discrimination" language is contained in the federal-sector provision of the Age Discrimination in Employment Act (ADEA). The brief pointed out that in 2010, this very appeals court held in Ford v. Mabus, a federal-sector ADEA case, that this "sweeping" statutory language requires that the plaintiff show merely that discrimination was "a factor" in the federal employer's adverse decision.

The appeals court ruled that the jury instruction was in fact wrong, holding that "nothing in Title VII requires a plaintiff to show that illegal discrimination was the sole cause of any adverse employment action." This sets to rest the controversy over whether "sole cause" is required in cases in the D.C. Circuit, and could be influential in other circuits. Unfortunately for Ponce the court went on to rule that in this specific case the error had been cured by further instructions. So, while the ruling is a defeat for him, it was a win for other workers in clearly defining the standards to be used in these cases.

What's at Stake

Since the federal-sector provisions of both Title VII and the ADEA contain identical language, the decision in this case directly affects the ability of older federal employees to prosecute age discrimination claims. It is also likely to be influential as other circuits consider similar disputes.

Status of the Case

Ponce v. Billington was decided by the U.S. Court of Appeals for the D.C. Circuit.

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