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EEO Retaliation Claims

An employee can raise a claim of retaliation in the EEO arena when an employee has participated in the EEO process and a subsequent adverse action takes place. In the EEOC’s Compliance Manual, Section 8 Retaliation (1998), the EEOC outlines the processing of retaliation charges. The elements of a retaliation claim consist of the following: 1) protected activity (opposition to discrimination or participation in the statutory complaint process), 2) adverse action, and 3) a causal connection between the protected activity and the adverse action.

In this analysis of a prima facie case, the EEOC addresses knowledge of protected activity within the causal connection portion of the analysis. It is also noted that the EEOC has set forth a four-part test as well. See Johnson v. Dept. of Treasury, 101 FEOR 1172 (2001). (The EEOC stated the prima facie test as follows: 1) the employee engaged in protected activity, 2) the Agency official was aware of such activity, 3) the employee was substantially disadvantaged by an adverse action, and 4) there is a causal link.)

Below are some highlights from the EEOC’s Compliance Manual on Retaliation, as well as relevant information and case law on those issues referenced.

Protected activity includes two categories: opposition and participation. Opposition of discrimination can involve explicitly or implicitly advising the respondent (Agency) that its activity was discriminatory as long as the manner of opposition was reasonable and there was good faith belief that the opposed practice was unlawful. Opposition includes threatening to file a complaint, complaining to another about alleged discrimination against oneself or others, refusing to obey and order because of a reasonable belief that it is discriminatory, or requesting a reasonable accommodation or religious accommodation. A person is protected even if mistaken about the unlawfulness of the challenged practices. Participation in the statutory complaint process includes filing a charge, testifying, assisting, or participating in the EEO process during the investigation, proceeding, hearing, or lawsuit. There is no need to prove that the allegations in the original charge were valid or reasonable. Often the charge of retaliation is stronger than the underlying case of discrimination. Additionally, protected activity includes participation in the grievance process where discrimination covered by Title VII is raised. Moreover, a person can be protected if someone closely related to or associated with him or her, for example a relative, opposes or participates in protected activity.

An adverse action can include things such as discipline or a poor rating while still employed at the Agency, as well as an action that took place after the employment relationship has ended, such as a negative job reference. The EEOC also notes that adverse treatment, not solely actions affecting terms and conditions of employment, is prohibited as well. In Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the U.S. Supreme Court held that a claim of reprisal is actionable if the employer’s actions (in the workplace or outside of the workplace) are materially adverse, meaning such actions are harmful to the point that they could dissuade a reasonable worker from making or supporting a claim of discrimination.

Causal connection (nexus) between the protected activity and adverse action can be found in two ways: direct evidence and circumstantial evidence. Direct evidence can be shown by an admission by an Agency official or an expression of bias against an employee for protected activity (e.g., a verbal or written statement). The EEOC found direct evidence of retaliation when a supervisor stated he should not assign an employee as an acting supervisor because he filed a complaint. See Garay v. Dept. of Army, 106 FEOR 378 (2006). The EEOC has found a per se violation of EEOC regulations prohibiting retaliation when a supervisor makes statements that discourage EEO activity. See Binseel v. Dept. of Army, 99 FEOR 3111 (1998) (A supervisor told an employee that filing a complaint was the “wrong way to go” to get a promotion.)

Circumstantial evidence can be shown by the adverse action-taking place shortly after the protected activity if the person taking the adverse action knew of the protected activity prior to taking the action. In order to determine knowledge of protected activity, the EEOC will analyze the particular facts of each case and may make credibility determinations. Regarding the proximity of time between the protected activity and the alleged retaliatory act, the EEOC focuses on the time between the protected activity and the adverse treatment, not just the time between the filing of a complaint and adverse treatment. In Solomon v. U.S. Postal Service, 107 FEOR 57 (2006), the EEOC found retaliation where denial of leave occurred three weeks after settlement of the employee’s complaint. Causal connection can be inferred when the protected conduct was followed closely by the adverse action although the EEOC has set no specific time period for establishing a retaliatory motive and will review the facts and circumstances of each complaint.

A violation is established if there is circumstantial evidence raising an inference of discrimination and the Agency fails to provide a legitimate nondiscriminatory reason for the adverse action or if the reason is a pretext designed to hide retaliatory motive. After meeting a prima facie test for retaliation, the burden shifts to the Agency to provide a legitimate nondiscriminatory reason. If the Agency states a legitimate nondiscriminatory reason, the employee then must show that the reason is a pretext. Pretext can be shown by evidence that the Agency treated similarly situated employees differently that did not participate in the EEO process, the explanation is not believable, or the employee was subjected to heightened scrutiny after engaging in protected activity.