Threat of Discipline Found to be Reprisal

On December 16, 2011, the EEOC's Office of Federal Operations (OFO) issued its decision in Malekpour v. Department of Transportation, EEOC Appeal No. 0720100016. OFO upheld the administrative judge's finding that threatening Malekpour with discipline for refusing to mediate claims associated with his EEO complaint constituted EEO reprisal.

Malekpour was an aerospace engineer working for the Federal Aviation Administration. Malekpour had a workplace dispute with a coworker in October 2007, an issue which he amended into his preexisting EEO harassment complaint. On December 17, 2007, an agency manager approached Malekpour and asked him to attend a mediation to attempt to resolve issues relating to the October 2007 incident. Malekpour refused, stating that he did not want to resolve any issues relating to his EEO complaint at this mediation, that he did not want to jeopardize his EEO complaint by participating in the mediation, and that management was attempting to force him to attend mediation so that he might drop some of the matters related to his EEO complaint. In response, the manager yelled to Malekpour, and threatened to discipline him for refusing to attend the mediation. The mediation never occurred, and no discipline was imposed on Malekpour. Malekpour later amended this incident into his preexisting harassment complaint.

An EEOC administrative judge rejected most of Malekpour's claims, but found that the December 2007 incident constituted retaliation against Malekpour for his protected EEO activity. As a remedy, the administrative judge ordered the agency to pay $3,000 in compensatory damages to Malekpour for emotional pain and suffering. The agency rejected the administrative judge's decision and appealed to OFO.

On appeal, OFO affirmed the administrative judge's decision. OFO upheld the administrative judge's finding that Malekpour had engaged in protected EEO activity by filing a harassment complaint against the agency. OFO affirmed the finding below that management's public humiliation of Malekpour and threats to discipline him for refusing to attend the mediation could deter a reasonable employee from protected EEO activity. Thus Malekpour had suffered a harm which could give rise to an EEO reprisal claim.

Although the agency had articulated an alleged legitimate reason for its conduct (claiming that the mediation was to resolve workplace issues and not under EEO auspices and that Malekpour was being berated to get him to attend a team-building conference), OFO found that excuse to be pretext. OFO specifically noted the testimony showing that the manager's threat to discipline Malekpour came after Malekpour had specifically cited concerns over not wanting to mediate his EEO claims. OFO further affirmed the amount of compensatory damages awarded by the administrative judge and affirmed the administrative judge's findings of no discrimination for the rest of Malekpour's claims.

* 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 https://www.passmanandkaplan.com/.