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Mogenhan v. Napolitano, No. 08-5457 (D.C. Cir. July 27, 2010)

| Jul 28, 2010 | Daily Developments in EEO Law |

Possibly a no-brainer, but here goes: Employers, gratuitously publicizing an employee’s complaint of discrimination, besides simply being cruel, may be an act of “retaliation” under federal anti-discrimination laws.

Mogenhan v. Napolitano, No. 08-5457 (D.C. Cir. July 27, 2010): An employee in the Secret Service sought EEO counselling for an alleged violation of the Rehabilitation Act.  What followed is aptly summarized in the panel decision:

“On August 7, 1992, Mogenhan sought EEO counseling with respect to her February discrimination complaint. Twenty days later, Machado posted the February complaint on the Secret Service intranet, where Mogenhan’s fellow employees could and did access it. He posted the complaint, she said, ‘to ostracize me with other agency employees and label me as a “troublemaker.”‘ Mogenhan Aff. at 5 (Dec. 1, 2004). Then, on September 10, Machado increased her workload to five to six times that of other employees, indicating that he was ‘doing so “to keep [her] too busy to file complaints.”‘”

The employee filed claims under the Rehabilitation Act challenging a poor performance appraisal (as discrimination), and the posting of the complaint and increased workload (as retaliation). The district court granted summary judgment on both. The former claim tanked because the employer did reasonably accommodate her putative disability (migranes), and the latter because the conduct was held not to be materially adverse.

While affirming summary judgment on the substantive claim, the panel remands on the retaliation. The panel observes, with respect to publicizing the discrimination complaint, that this kind of soft blackmail would likely dissuade future complaints: “The government offered no contrary explanation for the supervisor’s behavior, nor does it address the point on appeal. In such circumstances, a jury could believe that broadcasting an EEO complaint would have such an effect — and so chill a reasonable employee from further protected activity.” 

I am reminded of another similar, recent case in the Eighth Circuit, Franklin v. Local 2 of the Sheet Metal Workers Intern. Ass’n, 565 F.3d 508 (8th Cir. 2009), where a union that had been sued for race discrimination – in the guise of informing its membership about union expenses – used open meetings and bulletin boards to list the plaintiffs’ names, claims, and related legal defense costs.

Now, an employer must investigate complaints of discrimination, and this inevitably will cause some disclosure of names and facts to the witnesses who are interviewed. But wholesale publication of a charge is quite another matter. This a foolish thing – don’t do it!

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