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Supervisor’s Comments Could Have Chilling Effect

December 12, 2012

The EEOC recently held that a supervisor’s comments about an employee’s EEO complaint made during a performance review could have a chilling effect on a reasonable employee’s exercise of EEO rights and thus constitute reprisal. Talley v. Nuclear Regulatory Commission, EEOC Appeal No. 0120110737 (Sept. 26, 2012). The Commission found that the agency improperly dismissed the employee’s reprisal complaint for failure to state a claim and being preliminary to a future personnel action.

The employee was a special assistant for the Nuclear Regulatory Commission who alleged that during her midyear review, her supervisor angrily and at length commented on the questioning she had been subjected to by an investigator concerning the employee’s then pending EEO claim. The employee also alleged that comments made by the supervisor during the midyear review led her to believe that the supervisor would take action to lower her performance evaluation or make it more difficult for her to receive a promotion or be hired at another federal agency.

When a supervisor retaliates against an employee for engaging in protected activity through threats, harassment, or any other adverse treatment that is reasonably likely to deter such activity by that employee or others, it is a violation of the anti-discrimination laws For an employee to state a viable claim of retaliation, she must allege that: 1) she was subjected to an action which a reasonable employee would have found materially adverse and 2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination. If the employee does not meet this burden in bringing a claim of reprisal, the EEOC can dismiss the employee’s reprisal complaint for failure to state a claim. The EEOC may also dismiss an employee’s complaint if it alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory. Such allegations are dismissible as preliminary to a personnel action unless they constitute reprisal. Here, the agency argued that the employee both failed to state a claim of reprisal and was bringing a claim preliminary to a personnel action.

Accepting the employee’s allegations as true, the EEOC found that they could have a chilling effect upon a reasonable employee’s exercise of EEO rights and constitute a viable claim of retaliation. The EEOC found that this is particularly so given that the comments were made in the course of a midyear review when an employee would reasonably be particularly attuned to any displeasure that might be voiced by a supervisor. The EEOC also held that the preliminary to a personnel action defense is inapplicable where a discriminatory proposed personnel action is made in retaliation for prior protected EEO activity.

The EEOC held that the agency improperly dismissed the employee’s case, and it was remanded for further processing. The EEOC’s decision in this case widens the scope of what constitutes discriminatory reprisal, thus providing more protection for federal employees.