WHEN IS FAILURE TO INVESTIGATE ILLEGAL RETALIATION?

NAGE-SEIU confronted a situation where the agency refused to investigate an employee’s EEO allegation and suspected it was due to some lingering hostility toward the employee for having testified against the agency in a prior EEO dispute. When the union took its claim to an arbitrator, he found the union was correct. Consequently, he awarded the employee $185,000 in compensatory damages for all the harm she suffered as this dispute dragged on for more than a year. The FLRA confirmed that it does not matter if the agency otherwise had cause not to investigate, e.g., perhaps the employee had not properly alleged a civil rights violation. If the refusal to investigate was motivated by retaliation for prior EEO activity, it violates law. (See NAGE, 68 FLRA 916.) Although the decision involved an agency’s act of retaliation, unions also would seemingly be liable if they refused to investigate an employee’s grievance based on hostility for the employee prior involvement with EEOC or FLRA.