The complainant in Complainant v. Dep’t of Defense, EEOC Appeal No. 0120132212 (November 8, 2013), worked as an Assistant Principal at a Department of Defense Education Activity overseas. She attended an administrators’ conference during which, according to the decision, a district superintendent made derogatory comments about those who file EEO complaints and suggested that such complaints generally are dropped.

The complainant filed an EEO complaint and after an investigation requested a hearing before an EEOC administrative judge. The AJ granted the agency’s motion for summary judgment, finding there were no material facts at issue, that the complainant failed to state a claim because she failed to demonstrate she was aggrieved, and that the comments were broad statements intended to assure managers they could take disciplinary actions without fear of an EEO complaint.

On appeal, the EEOC agreed there were no material facts in dispute but found that the complainant had established she was subjected to unlawful retaliation. The EEOC found that the statements were reasonably likely to deter her, or any other managers who were present at the conference, from either personally engaging in the EEO process or “to keep them from carrying out their obligations to ensure a continuing affirmative application and vigorous enforcement of the policy of equal employment opportunity.” The EEOC stated that comments that on their face discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and constitute evidence of a per se violation of the law. The EEOC noted that when a supervisor’s behavior has a potentially chilling effect on the use of the EEO process, that behavior is a per se violation.

The EEOC ordered the agency to conduct a supplemental investigation on the complainant’s entitlement to compensatory damages and to issue a final decision on the issue of compensatory damages. Additionally, the EEOC ordered the agency to conduct EEO training with a special emphasis on the anti-retaliation provisions of the EEO laws and ordered the agency to consider taking appropriate disciplinary action against the superintendent. The EEOC ordered the agency to report its decision regarding disciplinary action and to set forth the reasons for its decision not to impose discipline, if the agency so decides. The EEOC also ordered the agency to post a notice for 60 consecutive days in conspicuous places at the school.

* 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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