Monday, June 25, 2012

What is a Retaliation Claim?


Retaliation

All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).

For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.

Retaliation & Work Situations

The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.





Retaliation Claim



A claim of disparate treatment based on indirect evidence is examined

under the three-part analysis first enunciated in McDonnell Douglas

Corporation v. Green, 411 U.S. 792 (1973).  For petitioner to prevail, he

must first establish a prima facie case of discrimination by presenting

facts that, if unexplained, reasonably give rise to an inference of

discrimination, i.e., that a prohibited consideration was a factor in the

adverse employment action.  McDonnell Douglas, 411 U.S. at 802; Furnco

Construction Corp. v. Waters, 438 U.S. 567 (1978).  The burden then shifts

to the agency to articulate a legitimate, nondiscriminatory reason for its

actions.  Texas Department of Community Affairs v. Burdine, 450 U.S. 248,

253 (1981).  Once the agency has met its burden, the petitioner bears the

ultimate responsibility to persuade the fact finder by a preponderance of

the evidence that the agency acted on the basis of a prohibited reason.

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).



Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to

an inference of discrimination.  Shapiro v. Social Security Admin.,

EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. at 802).  Specifically, in a reprisal claim, and

in accordance with the burdens set forth in McDonnell Douglas, Hochstadt

v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318,

324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman

v. Department of Veteran Affairs, EEOC Request No. 05960473 (November

20, 1997), a complainant may establish a prima facie case of reprisal

by showing that: (1) he engaged in a protected activity; (2) the agency

was aware of the protected activity; (3) subsequently, he was subjected

to adverse treatment by the agency; and (4) a nexus exists between the

protected activity and the adverse treatment.  Whitmire v. Department

of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).



Complainant indicated in his affidavit that his claim of retaliation is

based on his hiring into the agency pursuant to a settlement of an EEO

complaint.  Complainant indicated that the hiring occurred 18 years prior

to the instant matter.  The Supervisor averred in his affidavit that he

was not aware of complainant's prior EEO activity.  Complainant did not

rebut the Supervisor's statement.  Upon review of the record, we find

that complainant has not established a prima facie case of reprisal.

Specifically, we note that complainant did not provide any evidence to

establish a nexus between the hiring 18 years ago and the Supervisor's

denial of complainant's request for reasonable accommodation.  Therefore,

we affirm the finding in FAD2 that complainant did not establish his

prima facie case of reprisal.



Assuming complainant had established his prima facie case of reprisal,

we turn to the agency to articulate a legitimate, nondiscriminatory

reason for its action.  Upon review of the record, we find that the

agency met its burden.  The record indicated that during a safety talk

on June 17, 2002, complainant and his co-workers were all told that

they could not have personal items with them on the workroom floor.

Complainant indicated to his Supervisor that because of his impairment,

he needed to carry personal items with him on the workroom floor.

Complainant's Manager instructed complainant that he could test his blood

sugar in the locker room where complainant could find seating, sharps

containers to dispose of medical waste, and hand washing facilities.

We further find that complainant failed to establish that the agency's

reasons were pretext for unlawful retaliation.  Therefore, we conclude

that FAD2 properly determined that complainant has not shown that the

agency's action constituted unlawful retaliation.

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Martin Luther King Jr.

Martin Luther King Jr.
Martin Luther King Jr.

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