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By Debra Roth

Q & A Session: Adverse Action v. Protected Activity Time Period

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Q:

I have a question regarding the adverse action v. protected activity time period. Is the protected activity only the filing of the formal EEO complaint or can it be activities after, such as mediation, prehearing, etc.? 

A:

I assume that you are referring to the inference of retaliation than can be created by the issuance of an adverse employment action (e.g. a proposed removal action or bad performance appraisal) to an employee shortly after that employee engaged in protected EEO activity.

While the EEOC has not identified many discrete “protected activities,” the federal courts have acknowledged “protected activity” to encompass actions by the complaining employee in pursuit of his or her complaint. Examples of such acknowledged “protected activity” by the federal courts include the filing of the EEO complaint, execution of a settlement agreement to resolve the EEO complaint, and even sending letters attempting to administratively appeal closure of an EEO complaint within a government agency.

I note that even though an activity may be considered protected, the EEOC will require the time period between the agency’s initial knowledge of the prior protected activity and the adverse employment action to be “very close” to establish a prima facie case of reprisal, unless there is other evidence to support the inference that the action was taken in retaliation for the prior protected activity.

This response is written by James P. Garay Heelan, associate attorney of Shaw Bransford & Roth PC.

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