Is it possible to prove illegal EEO retaliation when the promotion selecting official had no knowledge that the an applicant she passed over ever had filed an EEO charge?  Yes, it is possible if you use the “cat’s paw” approach.

To begin, don’t ask why it is called a “cat’s paw” theory.  Supreme Court Justice Scalia wanted to advertise that he read 17th century French fables.  All you need to know is how it operates, and here is how.

An employee shifts a burden on to management in a hearing or arbitration over a retaliation claim if (1) he or she engaged in a protected EEO activity recently; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus or connection exists between the protected activity and the adverse treatment.  A formal complaint, charge, or even a verbal protest about alleged employment discrimination against others is protected activity.  Once the employee can establish that, the agency must present a legitimate, non-discriminatory reason for why it passed over the promotion candidate.

In the most recent EEOC case the Dept. of Veteran Affairs showed the selecting official had no knowledge of the previous EEO complaint and therefore could never have retaliated. But the employee was able to show that the selecting official had asked the employee’s supervisor what he thought of the employee.  The supervisor never said anything about the EEO complaint history; he merely spoke negatively about the applicant and said he would not rehire her if given the chance.  That is the next element of a “cat’s paw” approach, namely, show that the selecting official or decision-maker considered input from someone else.

The final element is whether you can show that person the selecting official consulted did have knowledge of the employee’s EEO activity and was not happy about that activity.  In this case, the employee’s immediate supervisor, admitted that his relationship with the applicant deteriorated when the employee requested a reasonable accommodation for a disability, and had told others he thought the employee “is going about the wrong way to have things her way,”   by exercising of her rights.

In the end EEOC found the selecting official was the conduit for the supervisor’s retaliatory animus and that her decision not to select the employee was based upon that biased assessment. The “cat’s paw” theory provides that employees can impute a manager’s retaliatory animus to a deciding official where the manager wielded sufficient informal power to influence deciding official.  The power in this case was that the selecting official thought enough of the supervisor to ask for his input. The employee got her retroactive promotion with back pay and likely some additional compensation.  She also was in a position to file a complaint with the U.S. Special Counsel asking that the discriminating supervisor be disciplined for violating a prohibited personnel practice.

Check out Eric K. Shinseki, Secretary, Department of Veterans Affairs, EEOC Appeal No. 0120110544 (2013)

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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