Monday, June 25, 2012
What is a Retaliation Claim?
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.
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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