Perhaps she has watched too much of TV’s “Dr. Phil,” but when a Treasury Department manager met with a dissatisfied employee no one had to ask her “How does that make you feel?” As she told the judge, “I also said his decision to file made me feel sad and I would have to be a lot more careful about what I say.”  While we can admire her willingness to share her feelings, EEOC had a different feeling about all that. 

One of the sad manager’s employees, a Supervisory Human Relations Specialist, had filed an EEO complaint alleging race and gender discrimination as well as reprisal.  Looking over the facts, even we agree that there was no evidence of any discrimination.  When the manager found out the employee had filed the complaint, she called the HR supervisor into her office to tell her how the complaint made her feel.  Up until that second the employee had no case, but the instant the manager suggested that the employee did something she should not have, everything change.  EEOC said,

The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation….Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law….When a supervisor’s behavior has a potentially chilling effect on use of the EEO complaint process — the ultimate tool that employees have to enforce equal employment opportunity — the behavior is a per se violation. In the instant case, we find that Manager 2’s statements were reasonably likely to deter Complainant from engaging in the EEO process….

EEOC ordered the agency to pay the employee compensatory damages as well as attorney fees. The case is Beckham v. Geithner, Dept. of the Treasury, EEOC No. 0120112323 (May 2013)

Do you ever wonder why agencies do not formally warn managers about not retaliating when employees file EEO or other complaints?  We do. How hard would it be for an agency to send a written notice to involved managers that an employee with whom they may have contact has filed an EEO charge or grievance, and that the managers should take extra care not to retaliate against the employee or anyone else supporting the employee’s efforts?  They could include a list of a dozen or so examples of what might constitute retaliation. If the manager of a supervisory HR specialist does not know enough to avoid retaliating what can we expect from managers totally unaware of HR law?

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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