The U.S. District Court, Eastern District of California, denied summary judgment in part to the Department of Homeland Security on an employee’s claims of discrimination and third-party retaliation based on his wife’s EEO activity in Morgan v. Department of Homeland Security, Docket No. S-12-1287 LKK/DAD (E.D. Cal. 12/19/13).

Plaintiff Morgan was a criminal investigator whose wife was an attorney who represented various employees of the agency in EEO proceedings.In October 2005, an agency director emailed another agency director advising him not to select the plaintiff for a position because his wife was representing employees against the agency, possibly with the plaintiff’s assistance.The email was then forwarded to another agency director.Before the circulation of the email, Morgan had never been disciplined, and in the previous two years, he had been placed in positions of increasing responsibility.After the email, he experienced a number of negative incidents, such as a non-promotion, not being provided a partner to work with contrary to agency practice, and being issued a vehicle that did not meet agency specifications for criminal investigators.Eventually, the agency terminated the plaintiff.

The court found that the plaintiff established a prima facie case of retaliation and that the agency did not offer legitimate reasons for a number of the incidents the plaintiff alleged as retaliatory acts.Specifically, the court found that the absence of a partner and the lack of an agency-compliant vehicle could have put the plaintiff in harm’s way and that the incidents he alleged were sufficiently severe or pervasive to alter the conditions of his employment and create an abusive hostile working environment.The court denied summary judgment to the agency on the plaintiff’s claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act that the agency retaliated against him for his wife’s activities, the perception that he provided assistance to his wife and for opposing discrimination.The court also noted that, despite a split among circuit courts, hostile work environment claims under the ADA are cognizable.

This case shows the unfortunate reality that mere association with those engaging in EEO activity can cause agency reprisal, but that employees are protected in the event retaliation occurs.

* 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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