Motion for Summary Judgment – A Quick Intro

A motion for summary judgment, or a “motion for decision without a hearing,” and how to respond, is probably the most important event in any litigation. It is where one side presents all of the facts that it can to convince the judge that no hearing or trial is required. For federal employees who are pursuing their EEO claims, this can be confusing. It is not like other motions. It is centrally important to how the EEO process functions.

Per Se Retaliation – Federal Supervisors Unlawfully Threaten Employees

Man yelling at phone

In two separate cases in 2017, the EEOC found that federal supervisors committed per se retaliation, meaning that the actions taken by the agency were unlawful on their face. In most instances when an agency takes an employment action, the agency’s motive is unclear. In per se retaliation, by contrast, the agency discourages or announces its intention to prevent an employee from filing or supporting claims of discrimination against the agency.

Supervisor behavior that has a potentially chilling effect on employees who use the EEO process is a per se violation of the EEO laws. The EEO complaint process is the primary tool that employees can use to enforce equal employment opportunity. Per se retaliation, which openly discourages employees from filing or supporting discrimination complaints is not just wrong, it is legally prohibited under Title VII of the Civil Rights Act of 1964 and related laws.

Supervisors threatening employees is per se retaliation

In one case, two managers pulled the employee into an office, told him they were investigating a complaint, and asked him if he intended to “play the Latino card.” The EEOC found that this comment on its face discouraged the employee from participating in the EEO process, such as by supporting his own or another employee’s complaint. The EEOC ordered the agency to investigate the damages that the employee suffered and to take disciplinary action against the supervisor who made these statements. (Ivan V. v. McDonald).

In another case, the managers’ statements were even more egregious. He told one of his employees: “If you do this [make an EEO complaint], I will get you.  It may take two months, two years, five years, but I will get you.” He stated that “nothing would stick” to him and that he had so many complaints before in the past. He told employees that he worked with the agency attorneys and any complaints would “go nowhere.” He told employees that they should not grieve anything “if we know what’s good for us.” The EEOC found that these statements in themselves constituted unlawful reprisal and were “at best, an ignorance of his responsibilities under EEO laws and, at worst, blatant disregard for the rights of individuals under those laws.” The EEOC ordered that the agency pay $19,385 in attorneys’ fees, $8,000 in compensatory damages, and post notice of the finding of discrimination. (Mindy O. v. Dep’t of Homeland Security).

Other EEOC cases finding per se retaliation

The EEOC has found instances of per se retaliation in previous cases, including:

If you believe you have been the victim of retaliation, you may have a very limited time to contact an EEO counselor to report it. You may want to consider contacting an experienced EEO lawyer who can help you through the process.