By Deborah J. Hopkins, June 10, 2024
It is absolutely critical for Federal supervisors and managers to understand that engaging in protected EEO activity is a right for all Federal employees, regardless of the outcome of such activity. Throughout my years in the classroom, I’ve come across numerous supervisors who believe that if an EEO complaint is found to have no merit, then the employee has not engaged in protected activity. This couldn’t be further from the truth.
The Equal Employment Opportunity Commission for decades has held that comments which, on their face, discourage an employee from participating in the EEO complaint process can have a chilling effect on others, and as such nearly always amount to reprisal. See, e.g., Binseel v. Army, EEOC Req. No. 05970584 (Oct. 8, 1998), where the supervisor told the complainant that filing an EEO complaint was not the right approach to try to get a promotion.
Below are two more recent examples where the EEOC found reprisal because of a supervisor’s words about the EEO process:
Carlton T. v. USPS, EEOC App. No. 2019005495 (Nov. 16, 2020)
EEOC found a supervisor’s criticism of the manner in which the complainant filed EEO complaints constituted reprisal. Examples of the supervisor’s criticism included:
- Telling the complainant he [the supervisor] thought it was “pretty sad” the complainant made up stories about people, and that this was why the complainant’s EEO complaints “never went anywhere, as nobody believed” him.
- Telling the complainant, “you think you’re a specialist[,] but they reject all your [EEO complaints] because they’re all misspelled and have a lot of run-on sentences.”
- In response to the complainant’s offer to assist a coworker in filing an EEO complaint, the supervisor told the complainant, “[t]he one who [is] stupid is you because you were pushing him [Complainant’s coworker] to file an EEO [complaint] against [S2][;] just because you can’t beat him you want somebody else to join in.”
- Characterizing the complainant’s actions as “pathetic.”
Bert P. v. Army, EEOC App. No. 2020003846 (Nov. 15, 2021)
During the pre-complaint (informal) EEO process, a supervisor told the EEO Counselor “ … employees should have to pay to file an EEO complaint and only get it back if and when they may prevail.” Id. at 7.
The complainant originally saw a copy of the EEO Counselor’s draft report containing the comment. However, the comment was removed from the final report. The complainant testified that after seeing the supervisor’s comment in the draft report, the complainant thought the supervisor believed EEO “complaints are frivolous and [employees] ought to pay a fee so it would deter people from making complaints.” Id.
According to the case, the EEO Counselor removed the comment from the final report after being directed to do so by the EEO Manager. In its Final Agency Decision (FAD) the agency found that this comment amounted to per se retaliation because of its potential chilling effect on future would-be filers. The Commission agreed.
If you’re a supervisor or manager, it’s important to understand your role in the process from the very beginning. That’s why FELTG is offering a brand-new class on June 27 called The Supervisor’s Role in the EEO Counseling and Investigative Processes. In just two hours, we’ll cover everything from how to behave after an employee has claimed discrimination, to how to respond to an investigator’s written interrogatories. Plus, you can ask your questions and get answers in real time. You cannot afford to miss this event. [email protected]
