The Office of Federal Operations (OFO) recently reversed a USPS decision to dismiss a reprisal claim and ordered an investigation. The decision serves to illuminate the basic elements of a reprisal claim.
The law protects Federal Employees that have participated in EEO activity against reprisal by their supervisors and Federal Employing Agency. When the Federal Employee alleges reprisal, the adverse action they allege as retaliatory need not be on that materially alter the terms and conditions of employment (i.e., suspensions, non-selections, demotions, less-than-fully-successful appraisals).
The anti-retaliation provisions of the employment discrimination statutes seek to prevent the Federal Government employing Agencies from interfering with a Federal employee’s efforts to secure or advance enforcement of the statutes’ basic guarantees, and are not limited to actions affecting employment terms and conditions. Under the EEOC’s broad view of reprisal, any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity, states a claim. See Lindsey v. United States Postal Service, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
Thus, to assert a claim of reprisal, the Federal employee need only allege sufficient facts to show a prima facie claim of reprisal:
(1) he or she engaged in a protected EEO activity (this need not be an actual EEO complaint)
(2) the agency was aware of the protected EEO activity;
(3) subsequently, he or she was subjected to adverse treatment by the agency; and,
(4) a nexus exists between the protected activity and the adverse treatment. (the nexus element will be addressed in another post).
Once the Federal Employee has asserted the above prima facie case of reprisal, there is an inference of discrimination. The Agency must articulate a legitimate non-discriminatory reason for its actions, and the Complainant will have a chance to challenge that rationale as “pretextual”.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
It is best to consult with a lawyer familiar with Federal Employee EEOC Complaints and Hearings to discuss the facts and law of your particular case. If you believe you are the victim of reprisal discrimination, contact an attorney familiar with Federal Employee EEOC Complaints and Hearings.