Saturday, February 10, 2018

Former Employee Can Still Bring EEO Claim Against Former Agency

By John V. Berry, www.berrylegal.com

In an interesting case, the Equal Employment Opportunity Commission (EEOC) has held that a former employee can state a valid retaliation claim for Equal Employment Opportunity (EEO) protected activity which arose from earlier employment. What makes this case interesting is the fact that the claim took place after the end of the federal employee's relationship with the federal agency.

Bryan T. v.  SSA Case

In Bryan T. v. Social Security Administration, EEOC No. 0120172731 (OFO Dec. 5, 2017), a former SSA service representative had alleged that the Social Security Administration (SSA) subjected him to discrimination (through retaliation) when he was not selected for a new position with another agency.  As might have been expected, the federal agency dismissed the claim for failure to state a claim because the claim took place after his employment with the SSA had ended.

In the appeal decision, the EEOC found that the SSA improperly dismissed the claim and that the former employee had presented a valid EEO claim or retaliation.  In particular, the former SSA employee had alleged a valid claim based on retaliation, when the agency had failed to make necessary changes to his official personnel file as part of an agreement. This led to a series of events leading to the complainant not getting the new position. The complainant had alleged that his former management had provided a negative reference in retaliation for his prior EEO complaint.

The EEOC Ruling

In particular, the EEOC, in Bryan T. held that a former employee may bring a valid EEO claim:

[A] former employee may state a viable retaliation claim for protected activity that arose from his or her employment with an agency even if the disputed agency action occurred after the termination of the employment relationship. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a case involving a claim of retaliation when a former employer gave an employee a negative job reference, the Supreme Court clarified that the term "employee" as used in the anti-retaliation provision of Title VII, includes former employees. See also Doyle v. Dep't of Justice, EEOC Request No. 0520070207 (Oct. 12, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency after his retirement); Machlin v. US Postal Serv., EEOC Appeal No. 0120070788 (March 29, 2007) (Complainant stated a viable claim of retaliation when, as a former employee who had engaged in protected EEO activity, he was not selected for a contract position with the Agency); Bimes v. Dep't of Defense, EEOC Appeal No. 01990373 (April 13, 1999) (allegation of retaliation involving agency's refusal to provide a former employee with post-employment letters of reference states a viable claim).

In the instant case, Complainant alleged discrimination when Agency officials failed to make the changes to his personnel file when he applied for a position with another Agency. As such, he claimed that management provided Complainant with a negative reference in retaliation for his prior EEO compliant. Therefore, we find that Complainant has presented a cognizable claim.

Id. (emphasis added).

The EEOC then reversed the SSA's conclusion and remanded it back to the EEO process for adjudication.  The Bryan T. case shows that the EEOC will recognize claims that occur post-termination and is a good ruling for employees.

Conclusion

If you are a federal, public sector or private sector employee in need of representation before the EEOC and need assistance, please contact us at www.berrylegal.com for assistance. We represent employees in the reasonable accommodation process. Please also visit our Facebook Page for additional information. 


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