An employee at the Commission for Civil Rights filed an EEO complaint regarding a transfer to a position with less responsibility, but at the same grade and pay level as her previous position. See Monroig v. Commission for Civil Rights, 103 FEOR 313 (EEOC OFO 2003). The Equal Employment Opportunity Commission (EEOC) held that such a transfer was actionable and that the Agency could not satisfy the requirement of returning the employee to a substantially equivalent position just by maintaining the employee’s grade and pay level.
In order to be considered a “substantially equivalent” position in the EEOC’s view, the employee’s levels of responsibility, independence, status, and official recognition, are considered. If the employee is reassigned to a position with less responsibility and independence, the position may not be considered substantially equivalent to her former position. The EEOC also held that the determination of whether the employee’s position was substantially equivalent is based on the position she held at the time of the original complaint as it originally existed.
Thus, employees can bring actionable EEO complaints over reassignments to positions at the same grade and pay level, but that involve less responsibility, status, or recognition. If a position to which an employee is reassigned has significantly less responsibility and independence, and is lower in status and recognition as well, the employee’s reassigned position will likely not be considered substantially equivalent to her former position. If the employee can also show that she was reassigned for a discriminatory or retaliatory purpose, she will have a successful EEO claim.
** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **