A female federal employee the National Institutes of Health (NIH), filed an EEO complaint alleging sex discrimination and retaliation when she was reassigned to another position and her former duties were taken over by a male employee. See Mackey v. Shalala, Sec’y, U.S. Dep’t of Health & Human Svcs., 360 F.3d 463 (4th Cir. 2004). An Equal Employment Opportunity Commission (EEOC) administrative judge (AJ) found in favor of the agency without a hearing on the sex discrimination claim. Also, after an administrative hearing, the AJ found no retaliation had occurred.
The employee, Ms. Mackey, filed an appeal in federal district court and the court affirmed the AJ’s finding of no sex discrimination and held a hearing on the retaliation claim. After trial, the court determined that Ms. Mackey failed to rebut the agency’s proffered nondiscriminatory explanation that the male employee hired was more qualified than Ms. Mackey. Therefore, the court decided in favor of the agency on the retaliation claim as well.
The court held that Ms. Mackey had not proven that her reassignment was an adverse employment action and that “although the job she had been transferred to may not have been as challenging and satisfying as her previous one, [Ms.] Mackey lost no pay or benefits and was even subsequently qualified for promotion to a GS-14.” The court also held that, even if an adverse employment action had occurred, the man was more qualified, taking into account the fact that he held a PhD in chemistry and was chairman of the chemistry department at a university before coming to NIH. The court compared his experience to Ms. Mackey’s masters degree in educational psychology and her experience as a high school science teacher before coming to NIH.
In addition, the court held that Ms. Mackey’s assertions that he occasionally held meetings in the men’s restroom and that NIH falsified his selection records were not supported by the record. Thus, the court held no claim, presumably a hostile work environment claim, existed.
This case illustrates several important elements which should be considered when bringing similar EEO claims. First, employees alleging discrimination must prove that an adverse action occurred and employees must not simply rely on lack of challenge and satisfaction at work as a result of reassignment. Second, employees should submit sufficient evidence concerning their education and qualifications to rebut the agency’s evidence regarding the replacement’s qualifications. Finally, the employee should obtain the necessary witness statements and documentation concerning a hostile work environment claim, or other claim, preferably during the investigation stage, so that the record supports the employee’s claim of hostile work environment.
** 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. **
