Retaliation for Prior EEO Activity

The EEOC found that a complainant was subject to retaliation for her prior EEO activity when she was temporarily reassigned one month after a federal district court granted summary judgment to the agency on her previous EEO case. Fuentes v. U.S. Postal Service, Appeal No. 0120091994 (6/30/10). The complainant alleged that she was subjected to reprisal when she was reassigned for the second time out of her position as manager of injury compensation and stripped of her managerial duties. Management asserted that the reassignment was due to a hostile work environment complaint being filed against her and claimed that she couldn’t establish a prima facie case of discrimination because her EEO activity was three years before the reassignment at issue.

The Commission reversed the final agency decision, noting that one month before her reassignment summary judgment was granted in her prior EEO case. The EEOC found that there was no evidence the EEO claim brought against the complainant was a hostile work environment claim and only involved a one-time incident concerning an audit conducted about nine months prior to her reassignment. The Commission also found that there were conflicting reasons given for the temporary reassignment as her direct supervisor claimed that it was due to the complainant’s performance: “We find that the agency’s witnesses are conflicting and not credible. Therefore, we find that the agency’s articulated reason is merely a pretext for retaliatory animus.”

It should be noted that a claim of reprisal will be found to be a violation if an employer retaliates against an employee for engaging in protected activity through threats, harassment in or out of the workplace or any other adverse treatment that is reasonably likely to deter protected activity by that individual or other employees. See the EEOC Compliance Manual on Retaliation, No. 915.003 at 814 through 816. It is irrelevant whether the wrong would rise to the level resulting in an award of damages as retaliation is an illegal act of discrimination under Title VII of the Civil Rights Act, as amended. As relief, the Commission ordered the agency to retroactively reassign the complainant to her manager of injury compensation position, awarded back pay with benefits and interest and remanded the case for a supplemental investigation of compensatory damages.