WHEN SUPERVISORS VENT, THEY MAY HAVE TO PAY

There are lots of situations inside and outside government where some manager is “miffed” that s/he must respect an employee’s rights under the law and they might walk away muttering to themselves—maybe even kick something.  But where they also use the approval of the employee’s exercise of a right to tell the employee to shape up, they can be liable for paying the employee and dealing with a new set of headaches. For example, in this case, a supervisor issued an employee a memo directly referencing the employee’s requests for official time to work on his EEO complaint.  It explained that he was granted 20 hours of official time, but would not get any more. The supervisor then explained that the employee needed to “immediately improve [his] conduct by following instructions provided to [him] regarding the amount of official time that has already been provided to you . . . .” 

The supervisor went on to criticize the employee’s professionalism and concluded that if he failed to conduct himself professionally, management would consider disciplinary action. EEOC found that the memo, “on its face, has the effect of chilling an individual’s participation in the EEO process… and constitutes per se reprisal.”  EEOC awarded the employee a bundle of cash in compensatory damages and ordered the agency to sit the supervisor down and explain the modern world to him—or to use the Commission’s words train him.

For details, check out Darrin H., v. Denis R. McDonough, Sec’y, Dep’t of Veterans Affairs, EEOC No. 2022001862 (2023)