Unless the union has negotiated a criteria for granting awards or other safeguards agencies are largely free to do what they want with awards—unless the employee can find that s/he was treated differently than someone in a different protected class, e.g., race, gender, national origin, age, disability status, etc.  EEOC drove that point home in a 2017 Agriculture Department decision and in the process provided a road map for others that want to get similar relief to that DOA employee.  She got a retroactive cash award, a right to be paid compensatory damages, and an order that the agency consider disciplining the responsible manager.  Here is how she did it.

To begin, she established a prima facie case of EEO reprisal merely by demonstrating that (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. She was able to show that that the denial of an award her supervisor recommended her for constituted an adverse action. She established a nexus because she did not receive an extra effort cash award even though her supervisor recommended that she receive one, and other, similarly situated employees received cash awards around the same time the employee engaged in EEO activity.

She also established a prima facie case of disparate treatment discrimination by demonstrating (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. She showed that the Agency provided a cash award to the Engineer Tech, GS-12, (male, 55), a similarly situated employee who worked down the hall from Complainant. Complainant listed her age as 65 and her sex as female.

Once she established prima facie cases the agency was required to put forth legitimate, non-discriminatory reasons for its decisions.  However, no management official in the record provided a specific, clear, and individualized explanation as to why Complainant was not issued the extra effort cash award.  Law requires that the agency must “frame the factual issue with sufficient clarity so that the [complainant] will have a full and fair opportunity to demonstrate pretext,” with the adequacy of its evidence “evaluated by the extent to which it fulfill[ed] these functions.” It failed to do that, thereby relieving the employee of any obligation to prove its explanation was false or pretext. Check out Gilda M. V. Sonny Perdue, Secretary, Department of Agriculture (Forest Service), EEOC Request No. 0520180182 and EEOC Appeal No. 0120140791 if you encounter managers who think they can do what they want with award decisions.

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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