Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.C. Cir.: FSLMRS does not preclude former employee’s Title VII, ADA claims against union, (Aug 18, 2025)

By Jason Albright, J.D.

Around the time of her scheduled arbitration hearing, the union’s local president allegedly began making unwanted sexual advances toward her.

The Federal Service Labor-Management Relations Statute does not preclude the Title VII sex discrimination, ADA disability discrimination, sexual harassment, and hostile work environment claims of a former U.S. Small Business Administration employee with a traumatic brain injury who alleges that her union president made unwanted sexual advances toward her, threatened to “ruin her federal career” if she did not withdraw allegations in ULP charges she filed with the FLRA, and told her the union “did not want to represent disabled mothers of newborns such as [[the employee]],” the D.C. Circuit held. Finding that its CSRA and FSLMRS precedent to date has not addressed a statute like Title VII or the ADA, the appeals court observed that those statutes “create their own elaborate schemes to root out invidious misconduct” and specifically include unions within their ambit. Judge Pan dissented in part (Lucas v. American Federation of Government Employees, No. 23-7051 (D.C. Cir. Aug. 15, 2025)).

SBA employee. The plaintiff, according to the court, is a woman with a traumatic brain injury, and she worked for the U.S. Small Business Administration (SBA) from 2017 to 2020. She believed that the SBA had discriminated against her and had not compensated her properly, and in late 2017, she brought these allegations to the local chapter of her union, American Federation of Government Employees (AFGE) Local 228.

Grievance. The local did not take any action for several months, but that changed when the local’s new president began his term in January 2018. Not long after taking office, he filed a grievance against the SBA on the employee’s behalf. He also told her, according to the record, that the union “had a history of animus towards female bargaining unit employees with disabilities.” Two months later, he scheduled an arbitration hearing concerning her grievance.

Union president’s alleged sexual advances. Around the same time, he also allegedly began professing his love for her and making unwanted sexual advances toward her. She told him to stop and reported his conduct to one of AFGE’s national officers.

Comments about nursing and motherhood. The local president stepped down as her designated representative ahead of the arbitration hearing, but the two remained in contact as the hearing date approached. The employee had recently given birth, and, on one occasion, he allegedly told her that “she did not have a right or need to be at the arbitration hearing based on the additional expenses and logistics associated with her being a nursing mother.” He added that her “having a newborn was a burden to the union.” She again reported his comments to the national officer.

Postponed arbitration hearing and ULP charge. At the local president’s instruction, the local postponed the arbitration hearing after it had begun. Six months later, she filed a ULP charge with the Federal Labor Relations Authority (FLRA), complaining of his harassment and the hearing’s delay.

Additional words. After learning about the charge, he allegedly called her, told her she was a “b*tch,” and threatened to “ruin her federal career” if she did not withdraw the allegations.

Union’s withdrawal from arbitration. The local later pulled out of the arbitration proceedings, and he allegedly explained that the union “did not want to represent disabled mothers of newborns such as [her].”

Two more ULP charges. She filed two more ULP charges with the FLRA: one asserting that the local had wrongfully withdrawn from the arbitration hearing, and another contending that the national officer had conspired with the local president to restrict her rights as an employee in the union’s bargaining unit.

The Regional Director dismissed two of the charges as untimely, and she appears to have appealed those dismissals to the General Counsel, according to the court, where they will remain pending until a new General Counsel is appointed. The fate of her third charge was not evident from the record.

EEOC charge and present lawsuits. Separately, the employee filed a discrimination charge against the union with the EEOC, which declined to pursue the matter and issued her a right-to-sue letter. She then filed the two present lawsuits in federal district court. The first named the union and the local as defendants and alleged violations of Title VII and the ADA, including claims of sex discrimination, disability discrimination, sexual harassment, and hostile work environment. The second, which she brought pro se, named the union, the local, the local president, and the national officer as defendants. She alleged that the local’s delay of and withdrawal from the arbitration proceedings constituted unlawful retaliation in violation of the FLRA.

Decision below and appeal. The defendants moved to dismiss for lack of jurisdiction in both cases, and the district court granted the motions, reasoning that the charges she had filed with the FLRA concerned “the very same facts and circumstances” underlying her complaints.

She appealed to the D.C. Circuit.

Fundamental protections of Title VII and ADA. The appeals court initially observed that “it is unlikely that Congress would have quietly done away with fundamental protections that it conspicuously and specifically made applicable to discrimination by unions.” “Title VII and the ADA,” it observed, “represent two of the most ‘significan[t]’ legislative enactments of ‘our time,’” and “both statutes explicitly apply their prohibitions against discrimination to ‘labor organizations.’ See 42 U.S.C. § 2000e-2(c).”

Overlapping avenues of relief. Consistent with how fundamental these statutory protections are, the D.C. Circuit continued, “Congress has long afforded claimants multiple, overlapping avenues to obtain relief from the discrimination they prohibit.” It is “well-settled that employees in every other relevant context can concurrently pursue administrative remedies for discrimination and Title VII or ADA claims (or the materially identical Rehabilitation Act claim) in federal district court.”

For federal employees suing their employers, this is explicit in 5 U.S.C. § 2302, part of Title I of the Civil Service Reform Act (CSRA). Section 2302(b) makes it a prohibited personnel practice for covered supervisors to discriminate against employees or applicants in violation of, among other statutes, Title VII or the Rehabilitation Act. See 5 U.S.C. § 2302(b)(1)(A), (D). And Section 2302(d) then explicitly ensures that these employees may nevertheless concurrently bring claims under Title VII and the Rehabilitation Act in federal district court. See id. § 2302(d)(1), (4).

Indeed, similarly, private-sector employees may bring Title VII and ADA claims in federal district court against their unions even if they can also pursue overlapping administrative remedies before the National Labor Relations Board. The Supreme Court has recognized that “legislative enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974).

Section 7116(b)(4) remedies. Finally, the appeals court noted that, if a claim centered on the duty of fair representation is unavailable, the plaintiff’s only other option under the FSLMRS would be to invoke Section 7116(b)(4), which makes it a ULP for a union to discriminate in the “terms or conditions of [its] membership” based on race, disability, and other protected traits. 5 U.S.C. § 7116(b)(4).

“At first blush,” the D.C. Circuit observed, “Section 7116(b)(4) might seem similar in scope to Title VII and the ADA, but its focus on discrimination in membership could limit its applicability.” Here, the plaintiff and the EEOC submitted that Section 7116(b)(4) does not protect employees who decide against joining their union, but who belong to a bargaining unit that a union represents, and the plaintiff herself was not a member of the union at the time relevant to her allegations.

Title VII, by contrast, contains no such limitation but instead makes it unlawful for a union “to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of [a protected trait].” 42 U.S.C. § 2000e- 2(c)(1) (emphasis added). The ADA’s language is similarly expansive.

Serious unanswered questions. Declining to resolve whether the plaintiff and the EEOC have the best reading of the FSLMRS on these issues, the appeals court observed that “It is significant enough for present purposes to note that there are serious and unanswered questions about the FSLMRS’s scope, and that those ambiguities further undermine the union’s request that we divine from the FSLMRS’s text a congressional intent to displace Title VII and ADA remedies.”

Anti-retaliation claim properly dismissed. The D.C. Circuit did not, however, conclude the same of the former employee’s claim under the FLSA’s anti-retaliation provision, which prohibits employers from retaliating against any employee for invoking her wage-and- hour rights under the statute. See 29 U.S.C. § 215(a)(3). She alleged that, after she filed a grievance related to her wages, the union colluded with the SBA to retaliate against her by failing to represent her properly in an arbitration proceeding. Here, said the appeals court, “The special considerations that save her Title VII and ADA claims from the Federal Labor Relations Authority’s exclusive jurisdiction do not apply to her retaliation claim.” The district court thus properly dismissed her second suit.

Partial dissent. Concurring in part and dissenting in part, Judge Pan argued that the majority “veer[s] away from the vast body of law that has strictly interpreted the exclusivity of the CSRA’s statutory scheme.” “Relying on their understanding that other anti-discrimination laws have broad applicability and offer more favorable remedies to plaintiffs than the CSRA,” she said, “my colleagues create a new exception to the CSRA’s comprehensive and exclusive regime….” In Judge Pan’s view, “statutory text and binding precedent constrain us to hold that if a federal employee alleges misconduct by her union that appears on its face to be an unlawful labor practice under the CSRA, relief must run through the FLRA, and federal courts lack jurisdiction to hear claims based on the same conduct.”

The case is No. 23-7051.

Judge: Garcia, B.

Attorneys: David R. Dorey (Liff, Walsh & Simmons) for Nia Lucas. Mark L. Vinson for American Federation of Government Employees, and AFGE Local 228.

Companies: American Federation of Government Employees; AFGE Local 228

Cases: PublicEmployees SexDiscrimination DisabilityDiscrimination Discrimination WageHour Retaliation Procedure DistrictofColumbiaNews GCNNews