Ask the Lawyer received the following paraphrased question from a reader on a legal matter that might be of interest to the entire audience.
Q: I was the respondent in an EEO (Equal Employment Opportunity) discrimination complaint. I gave testimony and provided evidence in my defense. I was not found in any way to have discriminated against anyone. However, I raised some issues about my superior and her mismanagement and her “threat” made to me. I also did not like the way the EEO investigators conducted themselves, though I was not found to have discriminated.
Since the investigation, Ii have been retaliated against by my boss. She issued me a warning memo for events spanning 21 months prior, the most current was 15 months ago. EEO has entertained more complaints against me that are non EEO and I was brought up on disciplinary charges on hearsay. Can I claim retaliation as I did cooperate in an EEO investigation, though I was the respondent?
A: Retaliation in EEO Investigations
The complainant, the subject and any witnesses in an EEO investigation are protected from any retaliatory action for cooperating with an investigation. In order to prove retaliation, an employee needs to show a causal connection between his or her cooperation with the EEO investigation and the adverse employment action. One way to establish an inference of retaliation is to show that there was a close period of time between the protected activity (cooperation with the EEO investigation) and the adverse employment action. Generally, this will be difficult if an adverse action occurred over a year after the protected activity for which an inference of retaliation is being sought. Previously planned activity by higher management also can not be used to infer retaliation. In other words, if a letter of admonishment was being prepared or in the planning stages prior to the protected activity, then it will be difficult to show the letter of admonishment was retaliation.
In sum, to determine whether there has been retaliation, the employee should focus on the facts. Why did the adverse action occur now? Why at all? Why or why not to others in similar situations? Was previously tolerated behavior suddenly found unacceptable after participation in EEO activity? These questions go to the ultimate issue of whether the Agency was motivated by the employee’s protected activity when deciding to take the adverse action.
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