EEO Reprisal is (Unfortunately) Alive and Well
By Deborah J. Hopkins, November 15, 2022
Reprisal, or retaliation, is alleged in about half of all EEO complaints. It is the most common basis of discrimination in findings against agencies. Let’s look at a few situations where the EEOC has issued findings of EEO reprisal: reassignment, discipline, and retaliatory harassment.
Reassignment
An agency is permitted to reassign an employee for any legitimate, business-based reason, such as employee performance or agency business needs. But reassigning an employee that management views as a problem because of her EEO activity is not permitted under the law.
A Federal Bureau of Prisons medical officer complained about harassment “in the form of harsh supervision, denial of adequate staff assistance, daily intimidation, differential treatment, inappropriate schedule changes, and desecration of her religious practices.” According to the Commission, management reprised against the complainant when they told her she was “the problem” and “the one causing all of the drama” and that “problems always surround her.” The AJ also found the complainant was subjected to reprisal when management reassigned her to a different work location. Gwendolyn G. v. BOP, EEOC Appeal No. 2021001396 (Oct. 18, 2021).
Disciplinary action
An agency is permitted to discipline an employee for misconduct as long as there is a nexus between the misconduct and the efficiency of the service, and provided the discipline is not motivated by that employee’s protected category or activity.
A program analyst filed an EEO complaint against two supervisors alleging hostile work environment harassment on Aug. 12, 2016. On Aug. 29, the supervisor reprimanded the complainant for discourteous behavior that occurred between the complainant and her supervisor on Aug. 10. The supervisor never put the reprimand in the complainant’s eOPF despite her statement she intended to do so.
The EEOC found a causal connection between the complainant’s protected activity and the agency’s disciplinary action because of the “close temporal proximity” between the two events. The AJ concluded, and the EEOC agreed, the reprimand was issued for the purpose of chilling the complainant’s EEO activity. Karolyn E. v. HHS, EEOC Appeal No. 2021003151 (Oct. 19, 2021).
Retaliatory harassment
Creating a hostile work environment because a complainant engaged in protected activity also violates the EEO statutes.A supervisory criminal investigator claimed retaliatory harassment when he was warned he “better be careful” and that if he continued to file EEO complaints “they will come after him.” An agency management official also confirmed that she informed the complainant about the comments and management’s attempts to legally “stop” his EEO activity. On top of that, another management official stated he believed the complainant’s EEO complaints were “ridiculous.” Also, agency management failed to timely approve or acknowledge the complainant’s leave requests, denied his telework request, and issued him a counseling memorandum without following the agency’s discipline policy. The EEOC found this conduct was motivated by the complainant’s protected activity and constituted unlawful retaliatory harassment. Terrance A. v. Treasury, EEOC Appeal No. 2020002047 (Sept. 13, 2021), request for reconsideration denied, EEOC Request No. 2022000139 (Feb. 9, 2022).
Reprisal is something easily avoided if you have the proper training and awareness. We’ll be teaching EEO counselors how to identify potential reprisal during our Calling All Counselors: Initial 32-Hour Plus EEO Refresher Training Jan. 23-26, 2023. Hopkins@FELTG.com
