Direct Evidence of Discrimination

In OFO Appeal No. 0120073300, decided on December 18, 2009, the Equal Employment Opportunity Commission's Office of Federal Operations (OFO) overturned an administrative judge's decision finding that a federal employee had not presented sufficient evidence of discrimination and dismissing the case without a hearing. In overturning the decision below, the OFO found that the employee had presented direct evidence of discrimination.

In this case, a federal employee claimed that he had suffered harassment by his employing agency based on his race, sex, and color, and in reprisal for reporting this poor treatment. Among other claims, the employee alleged that his employing agency had suspended him for five days in retaliation after he sent emails to his supervisor accusing her of harassment and discrimination, with copies to her superiors.

The agency contended that the suspension was justified because the email correspondence the employee sent was rude, discourteous, and insubordinate. The supervisor claimed that the employee should have brought his complaints of harassment and discrimination and hostile work environment to her before taking these allegations to her superiors. At a deposition, the employee's supervisor confirmed that the employee's reporting of the alleged harassment and discrimination to the supervisor's superiors was a major motivating factor in her decision to suspend him.

In response to the agency's motion for a decision without a hearing, the administrative judge found that the agency's actions were neither severe nor pervasive enough to constitute a hostile work environment. Nor did the judge find that the agency's actions were based on the employee's race, color, sex, or prior EEO activity. The administrative judge therefore decided in favor of the agency without holding a hearing.

On appeal, the OFO found that not only had the judge erred in granting a decision without a hearing, but also found that the employee had presented direct evidence of reprisal discrimination. The OFO found that the supervisor's statements in deposition showed that her decision to place the employee on five-day suspension was based in large part on the employee having reported his allegations of harassment, discrimination, disparate treatment, and a hostile work environment to his supervisor's superiors. This, the OFO decided, was sufficient to establish direct evidence of discrimination. The OFO therefore ordered that the case go to a hearing, where the agency will now have to meet a much higher standard to show that its actions were not discriminatory.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.