Unfortunately, it is all-too-common that federal employees who complain of discrimination – even when they are ultimately unable to prove discrimination – suffer retaliation for having engaged in protected EEO activity. Fortunately, though, the law provides strong protections for employees who suffer retaliation – even stronger than the law’s protections against other forms of unlawful discrimination.

Stating a basic retaliation claim (that is, a prima facie retaliation case) is easier than stating a discrimination claim, because you only need to allege that the agency took some adverse action against you, or failed to take some action it should have taken to help you, within a short period of time (usually within several months or less) after the acting agency officials learned of your EEO complaint. If you are alleging retaliation, an “adverse action” need not be an “ultimate employment action,” but can be any adverse treatment (or denied positive treatment) that is based on a retaliatory motive and is reasonably likely to deter engaging in protected activity. EEOC Compliance Manual, Section 8-II.D.3 (1998); Passer v. American Chemical Soc., 935 F.2d 322, 331 (D.C. Cir. 1991); Hashimoto v. Dalton, 118 F.3d 671, 675-676 (9th Cir. 1997).

Thus, for example, canceling an event that would have been held in your honor (as in Passer), a diminution in your job responsibilities, placement on a Performance Improvement Plan, or providing less-than-expected performance ratings – while these may not always be enough to constitute “adverse actions” in underlying discrimination complaints – may still constitute prohibited retaliatory actions. Any of these could be not-so-subtle ways of sending a message that discourages protected EEO participation.

The D.C. Circuit recently expanded upon the standard from Passer for stating an actionable claim of retaliation. Rochon v. Gonzales, 438 F.3d 1211, 1216-1218 (D.C. Cir. 2006). In Rochon, the court noted that many other circuit courts around the country and the EEOC have adopted a broad standard, like in Passer, for stating a retaliation claim, based on the statutory purpose: to provide employees with every incentive to stand up against unlawful discrimination. The Rochon decision also cited the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 (1997), which held that the “primary purpose of anti-retaliation provisions” of the anti-discrimination statutes are to maintain “unfettered access to statutory remedial mechanisms.” Rochon, supra at 1217.

Based on this reasoning, the D.C. Circuit explained that you can state a claim of retaliation even if you allege that, as a result of your initial EEO complaint, you suffered actions outside the employment context, such as: the IRS retaliating against a complaining employee by subjecting him to a tax audit; an employer falsely accusing an employee of engaging in criminal activity; or, as in Rochon, the FBI’s failure to investigate a death threat against one of its employees who formerly filed a discrimination complaint (though the FBI normally would have investigated).

You will still have to show that the agency’s actions well might have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 1219. However, the continuing evolution of the case law expanding federal employees’ ability to state a retaliation claim is a good sign – that you should feel free to come forward with your discrimination allegations, and that the law will protect from reprisal when you do.

The Supreme Court, on April 18, 2006, heard oral argument on exactly this issue — what is enough to state a retaliation claim — in the case Burlington Northern and Santa Fe Railway Co. v. White, No. 05-259. A Supreme Court decision is expected by July, which will hopefully provide further support for the position outlined by the D.C. Circuit and the EEOC, among others.

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.

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