WHAT IF YOU JUST ALERT MANAGEMENT TO AN EEO PROBLEM BUT NEVER FILE A COMPLAINT?
A well-meaning Corrections Supervisor approached the Warden and “… voiced some concerns with…promoting other staff to the acting position and compensating one at the higher grade, but not compensating another employee to serve in an acting role at a higher grade.” A few months later the supervisor approached the same Warden executive saying, “The Associate Warden’s Secretary, African-American female, expressed concerns to me she was being discriminated against as it related to providing relief to the Warden’s Secretary for lunch breaks, leave use, etc.” Just like the first time he talked to the Warden he was told, “not to worry about it.” However, a short time later the supervisor had his supervisory duties taken away.
Although the change came without a loss of pay, the supervisor stopped trying to get problems solved within the chain of command and filed an EEO complaint charging reprisal.
EEOC requires an employee alleging reprisal show the following:
(1) he engaged in a protected activity (which he did because even a comment made without a formal charge of complaint is protected under the law);
(2) the agency was aware of her protected activity (EEOC did not believe the Warden when he said he knew nothing about the employee’s comments);
(3) subsequently, he was subjected to adverse treatment by the agency (EEOC found the loss of supervisory duties without cause was an adverse action because it suggests the agency no longer trusts the employee with authority); and
(4) a nexus exists between the protected activity and the adverse treatment (Since the loss of duties occurred within six months of the supervisor’s last comments EEOC found a connection).
In the end, the agency had no effective rebuttal to the employee’s case, and the employee got his duties back along with compensatory damages. For details, check out Markus C., v. Merrick B. Garland, Attorney General, Dep’t of Justice, EEOC No. 2019004183 (2021)
EEOC decided another related reprisal case this month as well where the agency charged the employee with lying in an affidavit he gave as part of an EEO complaint investigation. The Commission quickly pointed out that, “We have also found reprisal when a supervisor accused a subordinate employee of lying to the EEO Office, as such accusations could “potentially chill an employee from participating in the EEO complaint process.” It then made it clear that only it can decide whether someone has lied or fabricated an affidavit or statement, “As we emphasized in Celine D., supra, the truthfulness of an employee’s discrimination complaint should be determined through the EEO complaint adjudicatory process.” Of course, if it does find an employee affirmatively lied the agency could discipline. Check out Michael L., v. Janet L. Yellen, Sec’y, Dep’t of the Treasury, EEOC No. 2020003199 (2021)
