By William Wiley

I get so tired of criticizing decisions issued by EEOC.

“So, Bill, why don’t you stop? They have an important job to do over there, protecting federal employees from civil rights discrimination.”

Yes, they do have an important job, one that all of us support and respect. However, the way they sometimes go about doing their job doesn’t always deserve much respect, thereby leading to my writing articles like this one when I should be taking my afternoon nap. Here are the details of another Commission finding of discrimination that I cannot align with the law or with common sense:

2002:  Complainant resigns from USPS as part of the settlement of a discrimination complaint she has filed in which she alleges her supervisor violated her civil rights. No evidence that the settlement promised the appellant a clean record.

2002-2008:  Complainant has several temporary jobs, some with government agencies, but fails to secure permanent employment.

2008:  SIX YEARS after her resignation, she begins to suspect that the reason she is not getting offers of permanent employment may be because her previous supervisor, the one she accused of violating her civil rights, might be giving her a negative reference. Therefore, the complainant hires a company to contact her previous supervisor to check her references. The supervisor tells the caller that, “I really can’t recommend her, she sues everyone;” “No, she would not be allowed to come back to the Post Office;” and “She was let go.”

2009:  Complainant falsifies her resume by deleting from her employment history the position from which she resigned in 2002. Subsequently, she is hired by the Social Security Administration into a permanent position.

Based on these facts, EEOC found that the supervisor’s statement was in retaliation for the complainant previously filing a discrimination complaint, and awarded the complaint $11,150 – $10,000 of which was due to the emotional distress complainant suffered when she found out what her previous supervisor said about her. To its credit, EEOC denied the complaint’s request for attorney fees for the time she spent representing herself because the complainant is not an attorney. Complainant v. USPS, EEOC No. 0120132417 (July 2, 2015).

Oh, the problems with this decision:

Retaliation – Unfortunately, EEOC’s current regulations don’t define retaliation: “No person shall be subject to retaliation for opposing any practice made unlawful by title VII of the Civil Rights Act …” 29 CFR 1614.101(b). However, EEOC’s previous regulations relative to retaliation are a bit more helpful: “It is unlawful to restrain, interfere, coerce or discriminate against complainants [or others] because of involvement with a discrimination charge.” That’s in line with a common online definition. You “retaliate” when you harm someone because they have harmed you.

And the because aspect is what’s missing in the analysis in this case. Six years after the complainant quit her employment with the agency, the supervisor said he could not recommend her, that she was let go. However, nowhere in the analysis does the Commission show that the reason (the “because of”) the supervisor said these thing is because the complainant filed a discrimination complaint six years previously. Maybe he said it because the complainant happened to be a bad employee. The complainant has the burden of proof in a discrimination case. Here, the complainant has proven two things: that the supervisor said something bad about her and that she filed a discrimination complaint six years previously. She has NOT proven a connection between the two. She may have established a suggestion for the reason, but not anything close to proving it by a preponderance of the evidence.

Had EEOC done a McDonnell Douglas analysis in this case (prima facie case, articulated a legitimate nondiscriminatory reason, pretext assessment), its rationale would be more compelling. However, I find nothing in either the judge’s or the OFO’s decision that says that the Commission evaluated any proffered legitimate non-discriminatory reason for the supervisor’s statements put forward by the agency. It seems to be concluding that there is per se retaliation when a supervisor says something bad about a discrimination-complaining prior-employee who quit six years previously. There are good employees who file discrimination complaints and there are bad employees who file discrimination complaints.  The fact that a bad employee previously filed a discrimination complaint does not make the employee a good employee. If this supervisor reported that he would not rehire her BECAUSE she filed the complaint, then that’s illegal retaliation. However, if he reported that he would not rehire her BECAUSE she was a bad employee, then that should be found to be legal.

“She sues everyone” – Well, maybe she does. Maybe there were lawsuits this individual filed against people who work at the agency, lawsuits that were unrelated to any claims of civil rights discrimination. If so, we certainly don’t know that from the Commission’s decision. EEOC brags that it is an investigative agency doing law enforcement work. Shouldn’t we expect an investigator to ascertain whether the statement that “she sues everyone” is factually true? And if so, whether those law suits were related to claims of civil rights discrimination? If this complainant did sue a lot of people at the agency for non-discrimination reasons, the Commission should not have found discriminatory retaliation under 29 CFR 1614.101(b). Unfortunately, we don’t know the facts from the Commission’s investigation into the claims made in this case.

FOIA – As the judge’s decisions at EEOC are not published, good old FELTG had to file a Freedom of Information Act (FOIA) request to get a copy. For many years, filing a FOIA request for a judge’s decision at EEOC was a waste of time because the Commission would routinely deny the request in full, relying on the 5 USC § 552(b)(7)(C) FOIA exception that allows an agency to withhold information if producing the information would “constitute an unwarranted invasion of personal privacy.” Well, now that the Commission does not name the complainants in its decisions, the reliance on privacy-invasion no longer has any merit. If you don’t know the individual, there’s no privacy right to protect; i.e., anonymous individuals need no privacy.

At least that’s what one would assume if one were applying common sense. So far, in response to our initial FOIA request, we have received a judge’s decision that is at least 50% redacted. I expected redaction of all the names and any information that could lead to the identification of anyone personally (address, phone number, title … that sort of thing). But to redact all things relevant to the unnamed complaint is far beyond the law. My appeal is pending, so stay tuned. Heck, we have nothing better to do here at FELTG than tilt at the windmill of a FOIA denial.

At least we don’t sue everybody. Wiley@FELTG.com

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