A CASE OF OLD-FASHION EEO REPRISAL

I like to think that knuckle-dragging managers are fewer and fewer these days, but then a case like this comes along.  A Navy employee, Cory, was upset about being passed over for promotion and went on his social media page to claim that he thought it was due to discrimination. That ignited the worst instincts of his Branch Chief who promptly proceeded to:

• Stop talking to Cory;
• Consider Cory a disgruntled employee and lost confidence that he could safely and successfully work on cranes;
• Inform other managers that he would no longer assign Cory cranes if he had it “his way”– whereupon the Crane Management Team collectively agreed to remove Cory from operating cranes for “safety reasons” until his behavior improved;
• Only fill the next batch of Crane Operator vacancies at the WG-9 level rather than his previously declared intent to fill at the WG-11 level;
• Select Cory for the WG-9 vacancies, but despite having the option to let Cory retain his existing pay made him take a pay cut to get the job; and then
• Removed Cory from his newly assigned crane operation duties, reassigning him back to the rigging department at his now reduced pay level.

Cory filed an EEO complaint because he had a prima facie case of reprisal, i.e., …

(1) he engaged in protected activity of declaring his opposition to discrimination; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment.  A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred.  The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.

In the end, EEOC ordered that Cory be retroactively promoted to the WG-11 Crane Operator position effective October 2020, that he get all back pay and benefits that went with the promotion, that he receive extra money to cover the income tax hit of getting so much money in one tax year, that he be allowed to file a claim for more money if he can show compensatory damages, and that the agency consider disciplining the Branch Chief.

For more details check out Cory V., v. Carlos Del Toro, Sec’y., Dep’t. of the Navy, EEOC No. 2021004613 (2023)