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Retaliation for 'Perceived' EEO Activity

In 2005, Tony Ball, a Secret Service agent who was married to co-worker, Ramona Johnson, filed an EEO complaint, alleging that he was denied a promotion because of his race. He was also part of a larger class action against the Department of Homeland Security. Ball was subsequently offered another promotion, which required him to be transferred to Miami. Over the next several months, the agency assured Ball and Johnson that Johnson would also be transferred to Miami, in accordance with standard agency practice for married employees. Ball transferred to Miami, and two months later, in June, requested an EEOC hearing for his complaint. In July, the agency notified Johnson that it was denying her transfer to Miami.

Title VII prohibits employers from taking retaliatory actions against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." Johnson filed her own EEO complaint, alleging that the refusal to transfer her was retaliation under Title VII. Johnson's complaint alleged that her husband's EEO litigation, and the agency's perception that she was involved with those disputes prompted the agency's actions.

The agency moved the court to dismiss Johnson's complaint. The agency argued that Title VII does not protect employees from retaliation based on the protected activity of their family members, that Johnson wasn't an agency employee at the time of the original promotion denial to her husband, and that the agency did not perceive Johnson as being involved in her husband's litigation. The court ruled against the agency in Johnson v. Napolitano, -- F.Supp.2d ---, 2010 WL 638285 (D.D.C. 2/24/10). The court noted that it wasn't necessary for Johnson to be employed with the agency at the time the events leading to her husband's claim occurred, but whether the agency perceived Johnson, once Johnson was hired, as having participated in her husband's EEO activity. And, as Johnson pointed out, the agency did perceive that she had, as the agency had deposed her for the class action litigation.

The court also ruled that it did not matter whether Johnson actually assisted her husband with his EEO complaint. "A perception theory of retaliation," the court noted, does not rest on whether the employee actually participated in protected activity, but the theory applies "so long as the employer believed that the employee was engaged in protected activity." In this case, the court found that because Johnson's complaint alleged enough facts to raise an inference that the agency retaliated against her because it perceived her as having participated in her husband's complaint, her case could proceed to trial.

Not all courts have embraced a perception theory of retaliation. While the Third Circuit has, see Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir.2002) (discussing the ADEA), the Fifth Circuit has not. See McKinney v. Bolivar Med. Ctr., 341 Fed. Appx. 80, 83 (5th Cir. 2009) (noting that "the Fifth Circuit has not adopted this perception theory of retaliation" and "nothing in the record suggests that [the defendant] believed [the plaintiff] to be engaged in protected activity or that it terminated him for that reason"). Fogleman stated that a perception theory is not contradicted by the statute's plain language; rather it is supported by it. The statute "focus[es] on the employer's subjective reasons for taking adverse action against an employee[.] [Thus,] it matters not whether the reasons behind the employer's discriminatory animus are actually correct as a factual matter." Fogleman, 283 F.3d at 571.

* 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.

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