Federal Legal Corner: Former Employee Can Bring Retaliation Claim

On February 3, 2014, the EEOC issued a decision in Complainant v. Dept. of Defense (Army & Air Force Exchange), Appeal No. 0120133147, reiterating that former agency employees can file EEO complaints against their former agency employer, particularly when the claim is retaliation.

In September 2012, the complainant was a temporary, part-time employee at a component of the Army & Air Force Exchange (AAFES).In December 2012, the complainant resigned from her position, citing a conflict with her supervisors. The complainant also cited discrimination as a reason for resigning.Before she resigned, the complainant had visited with an EEO counselor several times at AAFES, to discuss discrimination and a hostile work environment.

In March 2013, the complainant began working with a vendor which contracts with AAFES.Two weeks after starting, the complainant filed an informal EEO complaint with AAFES, stating that she had learned that she had been placed on a blacklist status, meaning that she could not be employed by any concession company working under AAFES. The complainant alleged that the blacklist was retaliation from AAFES for her EEO activity while an employee there. After resolution of the informal EEO complaint was unsuccessful, the complainant filed a formal EEO complaint.

The agency dismissed the formal complaint, stating that the complainant was a private contractor, and not an agency employee, and therefore could not file an EEO complaint.Specifically, the agency cited the fact that the contractor set the complainant’s hours, provided her all of the complainant’s benefits, and dictated the terms of the complainant’s work, as reasons why she could not file a complaint against AAFES.

However, EEOC reversed the agency’s decision.The EEOC reiterated that former agency employees have standing to file EEO complaints.The EEOC explained that the form of the alleged retaliation was akin to an agency refusing to provide post-employment letters or offering negative job references in violation of Title VII.

* 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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