In Medrano v. Department of Homeland Security, EEOC Appeal No. 0120071480 (September 30, 2008), the Equal Employment Opportunity Commission (EEOC) reversed the Department of Homeland Security’s (DHS) Final Agency Decision (FAD) finding that DHS did not retaliate against the complainant.
The complainant, an administrative clerk, GS-01, under the Stay-in-School Program, filed an informal EEO complaint alleging that the Officer In Charge (OIC) "scolded" her; berated and verbally assaulted her in front of other employees; did not issue her a job description, performance evaluation, or identification card; orally assigned tasks; constantly changed work assignments; and never provided her with formal career counseling. The OIC then told personnel in the office that the complainant had filed an EEO complaint and solicited testimony from other employees. Additionally, the OIC terminated the complainant shortly thereafter.
The complainant filed a formal EEO complaint including a claim of retaliation, and requested a FAD following the investigation. The FAD, not surprisingly, maintained that the OIC did not discriminate or retaliate against the complainant. On appeal, the complainant contended that she has two credible witnesses to a conversation between the District Director and the OIC indicating that they were going to fire her the following Monday because she filed an EEO complaint against them. The EEOC agreed to take this evidence into consideration.
After a de novo review, the EEOC held, regarding the complainant’s allegation "that the OIC openly discussed complainant’s filing of an EEO complaint with at least two coworkers," that "there is evidence in the file to support a finding of [reprisal] discrimination." The EEOC explained that "adverse actions need not qualify as ‘ultimate employment actions’ or materially affect the terms and conditions of employment to constitute retaliation," citing the EEOC Compliance Manual, Section 8: Retaliation (May 20, 1998), and Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). Instead, the statutory retaliation clauses "prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." The EEOC found that a supervisor openly discussing an employee’s EEO case "is behavior that is reasonably likely to deter a potential complainant from engaging in the EEO process."
Accordingly, the EEOC found that the OIC’s action of discussing complainant’s EEO activity with other employees and soliciting their testimony constitutes reprisal. The EEOC did not find that complainant established, by a preponderance of the evidence, that DHS terminated her based on discriminatory animus. As relief, the EEOC ordered DHS to determine whether the complainant is entitled to compensatory damages, provide training to the management official who retaliated, and consider taking disciplinary action against this management official.
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