Ask The Lawyer

By Debra Roth

Facing an EEO complaint

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Managers can never make all their employees happy. While feelings of surprise or betrayal are natural, you should be careful not to retaliate against the employee who files a complaint against you, especially if the issue is related to equal employment opportunity activity.

The Equal Employment Opportunity Commission’s regulations explicitly state that individuals are protected from retaliation after opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act or the Rehabilitation Act, or for participating in any stage of the administrative or judicial proceedings under those statutes.

EEOC identifies the following activities as “protected” from retaliation: EEO counseling; acting as an EEO representative; speaking out against reasonably perceived discrimination; providing evidence in connection with an EEO complaint; testifying at an EEO hearing; requesting reasonable accommodation for a disability or religion; and filing an EEO complaint. Basically, if an employee is subject to disparate treatment or discriminatory harassment after taking part in one of these activities, he or she could have the basis for a reprisal claim.

According to EEOC statistics, EEO retaliation is a common problem in the federal workforce, with reprisal remaining at the top of the list for discrimination claims raised by employees. It may be that managers simply don’t recognize what can be considered as retaliatory action before it’s too late.

The EEOC’s Compliance Manual interprets the statutory clauses prohibiting retaliation to “prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity.” This leaves a wide range of conduct subject to inclusion in the definition of unlawful retaliation, pending the complainant’s ability to relate the retaliatory act to his or her own protected EEO activity.

When proving a claim of reprisal, the employee must establish “temporal proximity.” That is, the complainant must show the alleged harassment or disparate treatment stemmed from his or her prior EEO activity. If the employee cannot prove the manager was aware of prior EEO activity, the claim won’t hold merit.

Retaliatory harassment can occur in two ways: harassment that results in a tangible employment action, or harassment that creates a hostile work environment. A tangible employment action is a significant change in employment status, such an unwarranted transfer to another position.

Harassment creating a hostile work environment occurs when conduct by a supervisor based on an employee’s prior EEO activity is so severe that it unreasonably interferes with the employee’s work conditions or creates an intimidating, hostile or offensive work environment.

Disparate treatment can be established when an employee who engaged in EEO activity is treated less favorably than similarly situated employees. This can include less-than-favorable treatment in hiring, promotion, work assignments, training, awards, performance appraisals, and removal or termination.

However, if the agency can prove a legitimate explanation for its action other than retaliation, the complaint may not be upheld. For example, in the 1999 case Gray v. Army and Air Force Exchange, an employee alleged retaliatory discrimination after her hours were cut back. The agency established that the complainant’s hours were reduced because of a reduction in sales, not retaliation.

The places where managers become vulnerable to successful reprisal claims are poor recordkeeping, a lack of standard procedures, and the failure to adequately assess an employee’s performance. Fair and consistent documentation of employment decisions can go a long way toward defending retaliation claims.

When faced with an employment discrimination issue, managers should ensure they document every aspect of personnel decisions that could be considered retaliatory. Also, take care not to discourage or express displeasure in employee participation in the investigation.

Finally, don’t stonewall the process. Your failure to cooperate could lead an administrative judge to draw an adverse inference from your action. If you’re unsure of your rights in the process, remember your right to representation. The government attorneys will be representing the agency, not you. Private legal counsel may be something to look into.

Greg Rinckey, a former military and federal attorney, is managing partner of Tully Rinckey PLLC, a law firm with offices in Albany, N.Y., and Washington. E-mail your legal questions to askthelawyer@federaltimes.com.

Comments

  1. James King Says:
    May 18th, 2012 at 3:39 pm

    Lt. Peloquin. In July 2009, I was asked by Lt. Peloquin to write a statement on his behalf for an EEO complaint that was filed against him by another officer, which I declined. Because of this, I have endured ongoing reprisals from Lt. Peloquin, which my agency has failed to address despite my own EEO complaints against Lt. Peloquin. My concerns were ignored, and the agency allowed Lt. Peloquin to remain in the position as my supervisor for two years. Following several complaints from fellow officers, I was finally removed from working under Lt. Peloquin.

    Violation of my medical privacy and Americans with disabilities Act of 1990.

    I was given a letter from Dr. Bedno, stating I will return to work following an appointment with a sport medical specialist regarding my short-term working conditions for light duty. Lt Peloquin contacted Dr Bedno, and asked her to change her letter to say that I was to come to work as a clerk without me seeking the professional recommendations from the sport medical specialist. The proper procedures were for Lt. Peloquin to employ the guidance from the Human Resource office to verify the authenticity of Dr. Bedno’s letter of recommendation. During my EEO hearing, other officers stated that Lt. Peloquin has never contacted their doctor’s and request modifications, when faced with similar circumstances.
    Additionally, my supervisor discussed my absentees in my annual performance appraisal, which affected my overall performance. I was absent for five day due to severe allergies which my agency was aware of as part of my pre-employment physical. After disputing these actions, the entries regarding my medical condition was removed from my annual performance appraisal approximately 2 months later. According to the Americans with Disability Act of 1990, Title 42, Chapter 126, Section 12102, I felt that I was discriminated against on my performance appraisal because my medical condition was implemented into my annual counseling which is prohibited.

    AWOL from duty on 1,2,6 September 2010.

    On 22 July 2010, Lt. Peloquin, Officer Estrada, and I responded to a call for service. Because of Lt. Peloquin’s failure to follow radio silence protocol while in the presence of a subject, the subject heard the radio transmission to have him apprehended and took off fleeing from the scene. We engaged in a pursuit after the subject, and I was the first to catch up with the subject, and apprehend him. During the apprehension, Lt. Peloquin, was nowhere in sight while we were apprehending the subject, yet another violation of police protocol. During this event, I sustained injuries to my thumb, and knee. I filed a CA-1 injury claim for my injuries, and the Continuation of Pay (COP) document, which entitled me to receive 100% of my pay for the first 45 calendar days of the injury. The 45 days ended on 5 September 2010, which means I was covered on 1 and 2 September 2010.

    Due to the continued discomfort, I went to the doctor on 1 September 2010. The doctor informed me that he would not be able to make a sound judgment until the following day after reviewing the X-rays ordered. I called Lt. Peloquin and informed him of the discussion between my doctor and I. On 2 September 2010, the doctor emailed me his findings at which time I was provided a light duty profile to present to my employer as well as a referral to a sport medical specialist. I called and emailed Lt. Peloquin and informed him that I will not be back to work until after 6 September 2010 which was a Federal holiday because I was still having discomfort. I also informed him that I would present the doctors note upon my return to work. Although I contact my supervisor, he continued to email me regarding the doctor’s note, which was provided upon my return to work.
    Although the Continuation of Pay (COP) and doctor’s note covered me through 5 September 2010, Lt. Peloquin wrote me up as being AWOL from work on 1, 2 and 6 September 2010. The 6th of September was an authorized Federal holiday therefore, I could have claimed either holiday or sick pay for that day. Enclosed is a printout obtained from the U.S Office of Personnel Management website defining the sick leave I was denied. “For absences in excess of 3 days, or for a lesser period when determined necessary by the agency, an agency may require a medical certificate or other administratively acceptable evidence. An agency may consider an employee’s self-certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence.
    Employees should consult their agency-specific human resources guidance and review applicable policies set forth in collective bargaining agreements for information specific to their agency.”Lt Peloquin’s eagerness for reprisal against me caused him to mark me as AWOL for 6 September 2010 denying me the right to claim that day as either a holiday day or sick day. Following his actions, I bought my concerns to the agencies attention however; they did not address my concerns.
    Five months passed and the day prior to the scheduled EEO hearing, my Chief of Police, Chief McClinton removed one of the AWOL days. During my hearing, Officer Tinsley stated that there were several occasions where he was absent from work, and he was not harassed for a doctor’s note as I was, nor was he marked as AWOL from duty. Because of the AWOL status, I lost $850.00 in wages creating a severe financial burden that caused an immense stress on my family and myself. I had to take money out my retirement Thrift Saving Plan to satisfy to my financial obligations. Which to date I have not been reimbursed for. Your Honor what kind of Agency will mark their Officer’s as AWOL because they were absent from work due to a job related injury sustained in the line of duty despite following protocol by informing their supervisor?
    In conclusion, I will like to add, Lt. Peloquin has had a significantly high number of EEO complaints against him over the years, yet the agency has made no attempts to rectify other officers, or my concerns regarding his competence to be in a leadership position. I take pride in what I do as a Police Officer and I continuously strive for excellence. When events such as this occur within an agency, the moral amongst officers remains low. Your Honor, I appeal to you to attain the truth contained in the transcripts from my hearings and that a sound decision is awarded. Thanking you in advance for your timely responses to this matter.