Notice that Worker Is Engaging in ‘EEO Activity’ Is Not Retaliation

By Jeffrey Rhodes April 15, 2020
man and woman in business meeting

A General Services Administration (GSA) employee could not show discrimination and retaliation based on her supervisor's negative reviews and asking her age, and a notice on an office board stating that she was engaged in "EEO activity," the 1st U.S. Circuit Court of Appeals ruled.

The plaintiff was employed as a contract specialist with the GSA from 2000 until she retired in 2009 at the age of 65. In April 2006, she was given a new supervisor who was significantly younger than her. Before the new supervisor began conducting her performance reviews, the plaintiff received a neutral evaluation of level 3 out of five levels, level 5 being the highest.

Once the new supervisor began conducting her performance reviews, the plaintiff received a level-3 summary ranking for 2006-2007, but after that received a level-2 summary ranking on her 2008 midyear review. Following that ranking, the supervisor developed a performance assistance plan for the plaintiff in August 2008. This required the plaintiff to meet weekly with the supervisor to discuss her work and prohibited her from teleworking until her performance improved.

Two months later, in October 2008, the plaintiff received an official warning from her supervisor after she raised her voice during a weekly performance meeting with him. The plaintiff then received a level-2 summary ranking for her 2008 annual performance review.

The plaintiff retired about one month later in February 2009. Before retiring, in January 2009, she filed a formal complaint with the Equal Employment Opportunity Commission (EEOC). She alleged discrimination by her supervisor in the GSA based on sex, age and religion. She also alleged that she had been retaliated against for earlier EEOC activity.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

Among other things, the plaintiff alleged that her supervisor had asked in one of her performance plan meetings whether she was 64 or 65. She also suspected that he wrote "EEO activity" on a notice board to describe her whereabouts when she went to the GSA EEO office to complain.

After the plaintiff filed suit, her claim was referred to a magistrate judge. The GSA filed a motion for summary judgment, which the magistrate judge recommended be granted.

The plaintiff argued to the district court that it should not follow the magistrate judge's recommendation, but the district court agreed with the judge and dismissed her claim.

On appeal, the 1st Circuit reviewed whether there was any evidence to support the plaintiff's claims. The 1st Circuit focused on whether the plaintiff had shown any pretext by the GSA—that is, that the reasons offered by the GSA for its adverse actions were false, and that discrimination and retaliation were the real reasons for its actions.

The appeals court determined that the GSA had shown valid reasons for the new supervisor to evaluate the plaintiff in the way that he did. It found that the change in the rankings of the plaintiff by her old supervisor and new supervisor were not so dramatic as to cast doubt on the validity of the rankings.

The court analyzed the posting of the term "EEO activity" on a notice board in the office. The court reasoned that the plaintiff could not prove that her supervisor wrote the words or that the writer knew that the plaintiff was engaged in the specific types of EEO activities that the law protects from adverse action. The plaintiff went to the EEO only at the end of her employment and so could not show that she was further harmed from the posting.

Based on these findings, the 1st Circuit upheld the dismissal of the plaintiff's claims.

Paul v. Murphy, Admin. of the General Services Admin., 1st Cir., No. 18-2115 (Jan. 24, 2020).

Professional Pointer: Employers must be careful to instruct supervisors not to punish employees for complaining of discrimination. As this case shows, nonetheless, an employee cannot show retaliation simply because someone told others that she engaged in EEO activity.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.


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