A Border Patrol supervisor initiated an investigation of a subordinate claiming that Complainant exhibited “lack of candor.” But EEOC found it was done solely because the employee had named the supervisor as a responsible management official in a pending EEO complaint. About the same time, the employee was denied a career-building reassignment.  EEOC found that decision also was done to retaliate against the employee. As relief, the Commission ordered the Agency to take the following remedial actions within 120 days:

  1. The Agency shall offer Complainant the opportunity to be temporarily assigned to the position of Lead Border Patrol Agent at the Big Bend Sector Border Intelligence Center (or other mutually agreeable location) for the same duration that the selectee of the detail at issue remained in such position.
  2. The Agency shall determine and pay Complainant back pay (with interest, if applicable) and other benefits due Complainant pursuant to 29 C.F.R. 1614.501. The Agency’s determination shall be based on a comparison with those benefits received by the selected employee. It ultimately gave him $10,000 on top of any back pay he was due. It gave him another $12,500 to cover attorney fees.
  3. The Agency shall remove any referral to the “lack of candor” investigation which may exist in any form from Complainant’s official personnel file or any other agency records;
  4. The Agency shall conduct a supplemental investigation to determine the amount of compensatory damages, if any, suffered by Complainant for being the subject of the “lack of candor” investigation referenced above and/or for not being selected for the detail to the position of Lead Border Patrol Agent on December 1, 2011.
  5. The Agency shall provide training to the Agency personnel responsible for the reprisal, mainly, the identified supervisor, placing special emphasis on an employer’s obligation not to take retaliatory action against an employee because of their opposition or participation in protected activity, such as the memorandum from Complainant alerting his superiors of alleged harassment and retaliation;
  6. The Agency shall consider taking appropriate disciplinary action against the Agency supervisors involved in the retaliation. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the EEOC Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not impose discipline. and
  7. The Agency is further directed to submit a Report of Compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that all of the corrective action has been implemented.

If you want more details, check out Ralph B. v. Kirstjen M. Nielsen, Secretary, DHS (Customs and Border Protection), EEOC No. 0120161451 (2018)

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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