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.

Federal managers claim ‘nobody knows’ the reason, EEOC grants summary judgment to Employee

In a recent case before the Equal Employment Opportunity Commission (EEOC), the EEOC’s Office of Federal Operations (OFO) found in favor of a federal Agency employee, Roxane C., because the Agency failed to provide evidence supporting a legitimate, non-discriminatory reason for removing an employee from a training roster, delaying her from starting a job.  (Roxane C. v. Carter).The OFO acts as a kind of court of appeals for federal employees claiming discrimination in federal employment and reviews the decisions of EEOC Administrative Judges and Agencies compliance with those decisions. In the litigation in Roxane C., the Agency attorneys provided a reason why management removed Roxane C. from a training. However, management itself did not testify to any reasons, and claimed not to know why they took this action. The OFO concluded that the Agency did not provide a legitimate, non-retaliatory reason for its actions against Roxane C. and she was therefore entitled to a finding of retaliation. The decision reaffirms that the EEOC will not rubber-stamp Agency lawyers’ claims of a legitimate, non-retaliatory reason without evidence from managers that this really was their motivation.

In this case, Roxane C. was scheduled to attend a training scheduled for April 2011 that involved substantial physical contact while she was in the latter stages of her pregnancy. Over Roxane C.’s objection, the Agency rescheduled Roxane C. for the same training in August 2011. After Roxane C. contacted the EEO office to get the April training date reinstated, the Agency removed Roxane C. from the roster for the August training.

None of Roxane C.’s managers could explain why Roxane C. was removed from the August training roster. One manager asked for Roxane C.’s name to be included on the August training roster, but then stopped communicating about the training after she filed her EEO complaint. Another employee was told to take Roxane C. off the roster, but provided no definitive answer about why he did so. Agency attorneys later argued in legal briefs submitted to the AJ that managers removed Roxane C. because she refused to go to the August 2011 class. None of the managers stated that this was true or otherwise supported it.

Roxane C. brought her EEO complaint before the AJ, who granted the agency’s motion without a hearing and dismissed the complaint. The Agency then adopted the AJ’s decision. Roxane C. appealed the decision to the EEOC’s Office of Federal Operations.

The OFO finds for Roxane C. because her managers could not explain their actions in the face of an inference that they retaliated

As the OFO states in Roxane C., the EEOC generally follows an evidentiary proof scheme permitting employees to challenge discriminatory and retaliatory actions where managers’ motives are inferred from the surrounding circumstances. This is generally known as the McDonnell Douglas scheme. For retaliation cases such as this one, the OFO inferred that Roxane C.’s managers retaliated against her for filing an EEO complaint because they removed her from a training less than three months after she filed her EEO complaint. Under McDonnell Douglas, the Agency then has an opportunity to rebut this inference of retaliation by providing a legitimate, non-discriminatory reason for its action.

The EEOC’s OFO reviewed the Agency’s Report of Investigation (ROI) and other evidence and found instead for Roxane C. According to the OFO, Roxane C. established a prima facie case of retaliation. She filed an EEO complaint in April 2011 and within three months the Agency removed her from its August 2011 training roster as well. The three-month gap between when Roxane C. filed her EEO complaint and when her managers removed her from the August roster created an inference that her managers retaliated against her because she filed her EEO complaint.

The EEOC OFO then explained that the Agency’s submitted evidence did not rebut this inference of retaliation. Agency witnesses offered opinions about why they believed Roxane C. was removed. However, none of the managers actually explained why the Agency removed Roxane C. from the August training roster. The OFO found that without evidence or testimony supporting a non-retaliatory reason, Roxane C. was entitled to succeed on her claim of retaliation. The OFO ordered backpay, training, and reinstatement for Roxane C. and disciplinary action against her supervisors.

The Agency must provide evidence of legitimate, non-discriminatory reasons

This case exemplifies how employees can use the Agency’s testimony against it in litigation before the EEOC. Management is entitled to explain why it took action against an employee. It can also have no explanation. But if the employee can show that the circumstances warrant an inference of retaliation or discrimination, Agency witnesses who claim to have no memory become witnesses for the affected employee.

In the case of Roxane C., the Agency attorneys apparently made up a reason for why management removed Roxane C. from the August 2011 training. They claimed she refused to attend the August training. But the evidence the Agency presented to the AJ did not support this claimed reason. When the Agency claims a specific reason for an action, but managers cannot remember or claim not to know the reason, the employee can use the managers’ lack of memory or knowledge to show that the real reason for the action was discrimination or retaliation. Even if an AJ finds against an employee in such circumstances, the EEOC’s OFO will police the AJs and reverse incorrect decisions on appeal for this reason.

OFO reaffirms the basic lesson of Burdine

In Roxane C., the OFO reaffirms the Supreme Court’s decision in Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981), requiring that once the Complainant establishes a prima facie case of discrimination, the Agency must come forward with evidence of management’s decision, not just any explanation. See Roxane C. v. Carter, 2016 EEOPUB LEXIS 1875, EEOC No. 0120142863, at *34-35 (EEOC July 19, 2016) (citing Young v. Dept. of Treasury, EEOC Appeal No. 05940517, 1995 EEOPUB LEXIS 2889 (Oct. 13, 1995)). The Agency must provide “a specific, clear, and individualized explanation” for the actions taken against the Complainant. Id. at 35. See also id. at *36 (citing Burdine, 450 U.S. at n.9 (“An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer in the complaint or by argument of counsel.”)).

For Roxane C., there was “no stated reason” why she was removed from the August 2011 training. Id. at *36. Instead, one of her managers stated that after she filed her EEO complaint, he was waiting for someone else to take action. Id. at *37-38. Another manager stated that excluding her may have been an oversight. Id. at *38. The OFO held that the managers’ “testimony provides no insight into why Complainant was removed from the August training except that management ceased communication with Complainant after she filed an EEO complaint.” Id. at *39.

The OFO also reiterated that the Agency’s reason must be articulated sufficient to permit the Complainant to show the Agency’s proffered reason is pretext.  Id. at *35 (citing Burdine, 450 US at 255-56 (a complainant is entitled to some rationale that provides an opportunity to attempt to satisfy the ultimate burden of proving that the proffered explanation was a pretext for discrimination).  By failing to provide an explanation from management identifying a non-retaliatory reason for removing Roxane C. from the August training, the Agency “did not sufficiently state a legitimate, non-discriminatory reason for removing Complainant from the August course, giving her the opportunity to show pretext.”  Id. at *40.

In opposing Agency motions for a decision without a hearing, Complainants must take care to review not only the Agency’s stated reason in its motion, but also how the responsible management officials’ testimony supports or fails to support the claimed reason.  Agency officials may try to ‘pass the buck’ to others by claiming not to remember or to know a reason.  This problem is compounded by the EEOC investigation process, which allows responsible management officials to draft and sign their own statements under oath without any real review.  Later, these management officials would have to contradict their own prior sworn testimony if they wish to articulate a legitimate, non-discriminatory reason for their actions.  Sticking one’s head in the sand frequently proves to be a poor strategy.  Complainants can turn management’s claimed lack of memory or knowledge to their advantage by showing that management cannot come forward with a reason.  Roxane C. shows just how successful this argument can be.

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