Claim of Unlawful Retaliation in Violation of Title VII Advances

Takeaway: Accountability extends to supervisors’ motives, underscoring the need for thorough documentation when responding to employment disputes.

A U.S. district court improperly granted a defendant’s motion to dismiss a retaliation claim because the adequacy of the plaintiff’s complaint of pro se retaliation for protected activity under Title VII of the Civil Rights Act of 1964 should have been assessed as a whole and favorably to him, the U.S. Court of Appeals for the District of Columbia Circuit held.

The plaintiff filed a pro se complaint in district court alleging unlawful retaliation in violation of Title VII. To prove unlawful retaliation, a plaintiff must show that 1) they were “engaged in statutorily protected activity,” 2) the defendant took “a materially adverse action” against them, and 3) their protected activity was a “but-for” cause of that adverse action.

“Pro se” refers to representing oneself in court without an attorney. A complaint filed in this manner is to be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers. Of course, the complaint must still include sufficient factual matter that as a whole—if accepted as true—states a plausible claim to relief.

The plaintiff had worked for the federal government as of 1999 in Washington, D.C. In 2015, he filed an Equal Employment Opportunity (EEO) complaint that alleged racial discrimination due to an involuntary transfer to serve as a GS-13 criminal investigator in the Office of Strategic Intelligence and Information (OSII) of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). He thereafter applied for several GS-14 positions between 2017 and 2018, but upon rejection, he alleged that two of those denials stemmed from retaliation because of his earlier EEO complaint.

In June 2019, he applied for another GS-14 position (later opened to GS-13 applicants such as himself), this time as a program manager in the OSII’s Internet Investigation Center. The plaintiff made the short list among two top candidates, but ultimately, nobody was hired. By 2021, the plaintiff successfully transferred to a different GS-14 role as a supervisory special agent in the ATF field office in California. After filing an administrative complaint for retaliation with the ATF, which was denied upon appeal to the Equal Employment Opportunity Commission (EEOC), the plaintiff appealed to the U.S. District Court for the D.C. Circuit.

Both parties and the district court agreed that the EEO complaints of racial discrimination and retaliation (filed in 2015, 2017, and 2018) constituted protected activity and that his nonselection in 2019 was an adverse action. Regardless, the district court granted a motion to dismiss made by the defendant on the ground that the 10-month time gap undermined an inference of causation. The plaintiff appealed that decision to the D.C. Circuit.

The D.C. Circuit acknowledged that, while a significant gap in time could break the causal pathway between the protected activity and retaliation, in this case, the plaintiff’s claims of retaliation for protected activity were filed against his direct and in-line supervisors. Several of these officials also had responsibility for filling the program manager position.

“It is reasonable to infer that a supervisor is more likely to retaliate against an employee that they know has previously complained about their own behavior than against an employee who has complained only about others,” the court noted.

Moreover, the plaintiff provided evidence to support his claim by establishing that his nonselection was not due to legitimate reasons on which an employer might rely to reject a job applicant: lack of qualifications or lack of a vacancy.

The D.C. Circuit determined that the plaintiff, in arguing his employer denied his promotion in retaliation for protected activity under Title VII, adequately pleaded his case to warrant further proceedings, and that his claim should not have been dismissed outright. The district court’s judgment was reversed and the case remanded.

Ho v. Garland, D.C. Cir., No. 22-5219 (July 2, 2024).

Anne Woodworth, J.D., is a freelance writer in Laurel, Md.