Per Se Retaliation Found

Per Se Retaliation Found. Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against her in reprisal for prior protected EEO activity when the District Superintendent (DS) made certain comments. Specifically, the DS stated in a discussion regarding administrator responsibilities for supervisors, that: "EEOs are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEO's. They'll go away." Following an investigation, an AJ issued a decision without a hearing in favor of the Agency. The AJ found that the DS's comments were broad statements made to assure managers that they could take disciplinary action, and her comments regarding the EEO process were made not to discourage potential complaints but to empower managers to take action without fear of an EEO complaint.

On appeal, the Commission found that the AJ erred in finding that Complainant failed to establish that she was subject to unlawful retaliation. The Commission stated that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of EEOC's regulations and evidence a per se violation of the law. The Commission further stated that Agencies have a continuing duty to promote the full realization of equal employment opportunity, and that this duty extends to every aspect of Agency personnel policy and practice. The Commission noted that the logical interpretation of DS's comments was that a manager should not be afraid of an EEO complaint filed by an employee, and could feel free to take whatever action they wanted because any allegation of discrimination would simply "go away" having not been proven because the complainant would not have the evidence or resources to proceed. The Commission found that DS's statements were reasonably likely to deter Complainant or any of the other managers from engaging in the EEO process. The Agency was ordered, among other things, to investigate Complainant's claim for damages and conduct training for DS.Complainant v. Dep't of Def., EEOC Appeal No. 0120132212 (November 8, 2013).