Fedweek Legal

The EEOC’s Office of Federal Operations applied the “cat’s paw” theory in finding that the Department of Veterans Affairs subjected a nurse to reprisal for prior EEO activity when it did not select her for a position, despite the selecting official’s lack of knowledge of the nurse’s EEO activity, in the case Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120110544 (Sept. 23, 2013).The EEOC found the agency liable since the selecting official did not select the complainant because of a negative reference from her then-supervisor at the agency, whom the EEOC found harbored a retaliatory animus against her for her protected EEO activity.

In early 2009, the agency announced a vacancy for a supervisory social services assistant position for which the complainant applied and was one of two qualified applicants named to the noncompetitive merit promotion certificate.An agency official acquired a reference from the complainant’s supervisor, who made negative remarks regarding her, including that she had prior performance and disciplinary issues with her supervisor and that he would not rehire her if she left her position and later wanted to return.The agency stated it did not hire the complainant because “the supervisory input that was received was negative and the recommendation [was] that the supervisor would not rehire this person.”

The complainant had engaged in protected EEO activity as recently as October 2008, when she requested reasonable accommodation, and March 2009, when she filed a formal EEO complaint.The EEOC held that the record established that the complainant’s request for reasonable accommodation affected her relationship with her supervisor.Both the complainant and the supervisor acknowledged that their relationship deteriorated when the complainant requested reasonable accommodation.The supervisor testified that he objected “to hav[ing] one individual state that [he is] discriminating” and claimed the complainant “is going about the wrong way to have things her way.”The EEOC found that the supervisor’s testimony evinced a lack of regard for the complainant’s statutory rights and open hostility toward complainant’s EEO activity.Because the agency’s decision not to select the complainant occurred in close temporal proximity to her protected EEO activity, the complainant demonstrated a causal nexus between her protected activity and the adverse treatment.

Although the selecting official for the vacant position was unaware of the complainant’s prior EEO activity, the EEOC found that the complainant’s supervisor’s retaliatory animus was imputed to the selecting official due to his “sufficient informal power to influence the official” through his negative reference.The EEOC’s use of the cat’s paw theory in this case shows that awareness of a complainant’s prior protected activity is not a requisite to a finding of retaliatory action or inaction against her.

* 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.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com/Federal-Employees-Survival-Guide.shtml. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.