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Retaliation

IN GENERAL 

Appellant was required to prove that she engaged in protected conduct, suffered a materially adverse action and that said action was motivated by retaliatory animus resulting from the protected conduct.  In re Koonce, CSB 36-13, p. 2 (10/16/14).

Our rules may protect or prohibit conduct that is beyond the reach of federal or state law. 
In re Koonce, CSB 36-13, p. 5 (10/16/14).

The Supreme Court decision in Nassar making it more difficult to prove retaliation is not sound policy for the City and County of Denver.  In re Koonce, CSB 36-13, p. 5 (10/16/14), citing Univ. of Texas SW Medical Center v. Nassar, 570 U.S ___ (6/24/13). 

In order to prove retaliation, an appellant must prove that retaliation was a contributing or motivating factor in imposition of an adverse action.  In re Koonce, CSB 36-13, p. 5 (10/16/14).

A claim of retaliation under the Career Service Rules requires Appellant to prove that she engaged in a protected activity, and that the Agency's discipline was imposed as a result of that activity.  
In re Mack, CSA 43-12, p. 10 (3/18/13), citing In re Rock, CSA 09-10, pp. 6-7 (10/5/10); Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (U.S. 2006).

Retaliation claim was not proven where appellant presented no evidence that she reported financial mismanagement in her grievance or engaged in any other type of protected activity.  
In re Mack CSA 43-12, p. 10 (3/18/13).

Burden of proof in a retaliation claim is on appellant to demonstrate that action was retaliatory.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

Retaliation claim was not properly before the hearing officer in an appeal of a grievance where retaliation was not raised in the grievance.  
In re Gallo, CSA 63-09, p. 3 (8/27/10).

Appellant needed to prove 1) that she engaged in activity in opposition to unlawful discrimination; 2) that a reasonable employee would have found the challenged action to be materially adverse, and 3) there was a causal connection between the adverse employment action and the employee's protected activity.  
In re Gallo, CSB 63-09, p. 3 (3/17/11), citing Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

Appellant's statement to internal affairs in support of another deputy's discrimination claim was protected activity.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

Appellant did not prove that a reasonable employee in the unit would have found the transfer adverse; i.e, that the transfer was both subjectively and objectively adverse.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

In order to prove causation of a retaliation claim, an employee must demonstrate that the decision-maker knew of the employee's protected activity.  Without knowledge, his actions cannot be retaliatory.  
In re Gallo, CSB 63-09, p. 4 (3/17/11), citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

There was sufficient evidence to support finding that supervisor had legitimate, business-related reasons for transferring appellant, particularly when transfer did not impact pay, benefits or status, and employees had no entitlement to an assignment of their choice, as shown by supervisor's own subsequent transfer.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

A retaliation claim is established where an employee engages in a protected activity, and the agency response would dissuade a reasonable person in the employee’s position from taking the protected action.  
In re Gallo, CSA 63-09, p. 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

A reassignment resulting in no loss of pay or benefits may be a materially adverse action supporting a retaliation claim if it is to an objectively less desirable position.  
In re Gallo, CSA 63-09, p. 4 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

Employee’s support of co-worker’s race discrimination claim in an agency interview, and employee’s own grievance claiming race discrimination and harassment are protected activities.  
In re Gallo, CSA 63-09, p. 3 (8/27/10).

Transfer was motivated by new supervisor's determination to rebuild jail units according to his mission, not in retaliation for deputy's protected activity.  
In re Gallo, CSA 63-09, p. 4 (8/27/10), aff'd In re Gallo, CSB 63-09, p. 4 (3/17/11).

Transfer of employee engaged in conflict with another was within the authority of the supervisor, and did not prove race harassment.  
In re Gallo, CSA 63-09, p. 7 (8/27/10).

Appellant failed to prove that transfer was motivated by retaliation where no one asked supervisor if he knew of appellant's protected activity, and there is no evidence in the record inferring such knowledge.  
In re Gallo, CSB 63-09, p. 4 (3/17/11).

Appellant must first prove the new supervisor who transferred her knew about or deferred to the alleged discriminatory statements made by the former supervisor in order to prove the transfer would dissuade a reasonable person from engaging in a protected activity.
  In re Gallo, CSA 63-09, p. 3 (8/27/10), aff'd In re Gallo, CSB 63-09, p. 4 (3/17/11).

Appellant failed to demonstrate his lay-off was in retaliation for filing a grievance over a “needs improvement” PEPR, particularly when his new supervisor readily agreed to remove the rating given to Appellant by his former supervisor, and the Agency delayed the lay-off for several months to address Appellant’s concerns and give him additional time to seek other employment opportunities. 
 In re Sanders, CSB 62-09, p. 2 (2/17/11).    

Retaliation is established where the employee shows that 1) she engaged in a protected activity, 2) the Agency imposed an adverse action, which might well have dissuaded a reasonable employee from engaging in the protected activity, and 3) a causal connection between 2.  In re Rock, CSA 09-10, pp. 6-7 (10/5/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (U.S. 2006) and Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). 

Appellant failed to establish that the Agency retaliated against her for filing an EEOC claim, where her suspension, imposed one and one-half years after her claim, was too remote to prove a causal connection between the two events, and her supervisor was unaware of her claim.  
In re Rock, CSA 09-10, p. 7 (10/5/10).

Appellant failed to establish that the Agency retaliated against her for requesting FMLA leave  where her supervisor prepared a contemplation of discipline letter before Appellant’s request for FMLA leave.  
In re Rock, CSA 09-10, p. 7 (10/5/10).

Agency violated this Rule in assessing discipline for Appellant’s use of sick leave in more than 7 incidences in 1 year, where Agency did not dispute that Appellant was legitimately ill and she used her available banked leave.  
In re Rock, CSA 09-10, p. 6 (10/5/10).

Retaliation is established where a reasonable employee would have found the challenged agency action materially adverse which, in this context, means it well might have dissuaded a reasonable worker from making or supporting a charge of sexual harassment
.  In re Moore, CSA 103-09 and 21-10, p. 3 (10/14/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006).

Even if an employee establishes that her protected conduct was a substantial factor in the agency’s adverse action, the employer may show it would have taken the same action if the protected conduct had not occurred.  
In re Moore, CSA 103-09 and 21-10, p. 3 (10/14/10), citing p. broida, a guide to merit systems protection board law and practice (Volume II 2010); Mahaffery v. Dept. of Agriculture, 105 MSPR 347, 239, 2007 MSPB 93 ¶20 (2007).

Personal animosity does not automatically establish retaliatory intent.  
In re Moore, CSA 103-09 and 21-10, p. 4 (10/14/10).

Burden of proof in a retaliation claim is on appellant to demonstrate that action was retaliatory.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

Retaliation claim was not properly before the hearing officer in an appeal of a grievance where retaliation was not raised in the grievance.  
In re Gallo, CSA 63-09, p. 3 (8/27/10).

Appellant needed to prove 1) that she engaged in activity in opposition to unlawful discrimination; 2) that a reasonable employee would have found the challenged action to be materially adverse, and 3) there was a causal connection between the adverse employment action and the employee's protected activity.  
In re Gallo, CSB 63-09, p. 3 (3/17/11), citing Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

Appellant's statement to internal affairs in support of another deputy's discrimination claim was protected activity.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

Appellant did not prove that a reasonable employee in the unit would have found the transfer adverse; i.e, that the transfer was both subjectively and objectively adverse.  
In re Gallo, CSB 63-09, p. 3 (3/17/11).

In order to prove causation of a retaliation claim, an employee must demonstrate that the decision-maker knew of the employee's protected activity.  Without knowledge, his actions cannot be retaliatory.  
In re Gallo, CSB 63-09, p. 4 (3/17/11), citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

There was sufficient evidence to support finding that supervisor had legitimate, business-related reasons for transferring appellant, particularly when transfer did not impact pay, benefits or status, and employees had no entitlement to an assignment of their choice, as shown by supervisor's own subsequent transfer.  
In re Gallo, CSB 63-09, p. 3 (3/17/11). 

A retaliation claim is established where an employee engages in a protected activity, and the agency response would dissuade a reasonable person in the employee’s position from taking the protected action.  
In re Gallo, CSA 63-09, p. 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

A reassignment resulting in no loss of pay or benefits may be a materially adverse action supporting a retaliation claim if it is to an objectively less desirable position.  
In re Gallo, CSA 63-09, p. 4 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

Employee’s support of co-worker’s race discrimination claim in an agency interview, and employee’s own grievance claiming race discrimination and harassment are protected activities.  
In re Gallo, CSA 63-09, p. 3 (8/27/10).

Transfer was motivated by new supervisor's determination to rebuild jail units according to his mission, not in retaliation for deputy's protected activity.  
In re Gallo, CSA 63-09, p. 4 (8/27/10), aff'd In re Gallo, CSB 63-09, p. 4 (3/17/11).

Transfer of employee engaged in conflict with another was within the authority of the supervisor, and did not prove race harassment.  
In re Gallo, CSA 63-09, p. 7 (8/27/10).

A retaliation claim, in the context of this case, is established by showing a layoff might well have dissuaded a reasonable worker from filing a grievance of a PEPR rating, using an objective standard of “material adversity.”  
In re Sanders, CSA 62-09, p. 8 (9/24/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006). 

The material adversity test necessarily infers causation, which means the agency engaged in some retaliatory act in response to the protected act, the filing of the grievance.  
In re Sanders, CSA 62-09, p. 8 (9/24/10), citing Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673 (7th Cir. 2010); 45A Am.Jur.2d Job Discrimination § 240 (2010); Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

The kinds of actions described as materially adverse are no longer limited to those action which negatively affect pay, benefits or employment status, but now include any act which would cause a hypothetical reasonable employee to pause before engaging in the action giving rise to the agency response, whether or not it took place within the scope of employment.  
In re Sanders, CSA 62-09, p. 8 (9/24/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).  

Where agency presented the layoff plan before appellant filed his grievance appellant could not establish retaliation was a substantial or motivating factor in the layoff.  
In re Sanders, CSA 62-09, p. 8 (9/24/10).

Appellant's failure to show that the layoff decision followed his grievance constitutes a failure to establish material adversity; i.e., that the retaliation was in response to the protected activity, and therefore he failed in his burden to prove retaliation was a substantial or motivating factor in the layoff.  
In re Sanders, CSA 62-09, p. 8 (9/24/10).

Evidence that agency found appellant's "needs improvement" PEPR unsustainable and revised it after it was appealed signified an absence of retaliatory motive.  
In re Sanders, CSA 62-09, p. 8 (9/24/10).

Evidence that agency delayed appellant's layoff for several months to follow up on his concerns and allow him to seek training and other employment signified an absence of retaliatory motive.  
In re Sanders, CSA 62-09, p. 9 (9/24/10).

Appellant  failed to establish a retaliation claim where he did not show his layoff preceded his grievance and his supervisor changed his PEPR rating after appellant appealed it and delayed the layoff to address his concerns and allow him to seek training and employment.  
In re Sanders, CSA 62-09, pp. 8-9 (9/24/10).      

Adverse action necessary to assert retaliation claim is action that is reasonably likely to deter employees from engaging in protected activity.  
In re Rems, 31-10, p. 2 (Order 5/12/10).  

Supervisor's order that appellant take remedial training is not an adverse action sufficient to support a claim of retaliation.  
In re Rems, 31-10, p. 2 (Order 5/12/10). 

A pre-disciplinary letter is not proof of an adverse action, an element necessary to assert a retaliation claim.  
In re Thomas, CSA 13-10 (Order 3/15/10). 

Appellant claiming retaliation made a showing that he engaged in a protected activity by exercising his right to take FMLA leave.  
In re Abeyta, CSA 110-09, p. 2 (Order 2/9/10).

A retaliation claim must include an allegation that the employee suffered an adverse employment action; i.e., an action that is reasonably likely to deter an employee from engaging in a protected activity.  
In re Abeyta, CSA 110-09, p. 2 (Order 2/9/10), citing Burlington Northern & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006); EEOC Compliance Manual Section 8, Retaliation, ¶ 8008 (1998).

To survive a motion for summary judgment in a retaliation claim, appellant must show some connection between the adverse action and the protected activity.  
In re Abeyta, CSA 110-09, p. 2 (Order 2/9/10), citing CSR § 15-106; 42 USCA § 2000e-3(a); Nichols v. Harford County Bd. of Educ., 189 F.Supp.2d 325 (D. MD 2002).

Once the agency responds to appellant’s retaliation claim with a showing that there was a legitimate business reason for its actions, it is incumbent on appellant to present a genuine dispute of material fact as to whether the agency’s proffered reason is pretextual - i.e., unworthy of belief.  
In re Abeyta, CSA 110-09, pp. 2-3 (Order 2/9/10),  citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation, summary judgment must be granted on the claim of retaliation.  
In re Abeyta, CSA 110-09, p. 3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

A prima facie case of retaliation must show 1) the employee engaged in some action opposed to discrimination, 2) he was later subjected to an adverse employment action, and 3) there is a causal link between the 2.  
In re Morgan, CSA 63-08, p. 17 (4/6/09), citing In re Felix, CSA 46-07, p. 1 (Order 8/23/07).

To prove retaliation, an employee must demonstrate the employer took adverse action against her because she engaged in a protected activity.  
In re Norman-Curry, CSB 28-07 and 50-08, p. 2 (9/3/09), citing Hinds v. Sprint/Unlimited Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). 

To prove retaliation, an employee must demonstrate a cause and effect relationship between the agency's adverse action against her and the protected activity in which she engaged.  
In re Norman-Curry, CSB 28-07 and 50-08, p. 2 (9/3/09).

As a prerequisite for demonstrating a cause and effect relationship between the agency's adverse action against her and her protected activity, appellant must show those who took the adverse action knew about her protected activity; without that knowledge there can be no inference of a retaliatory motive.  
In re Norman-Curry, CSB 28-07 and 50-08, p. 2 (9/3/09), citing Hinds v. Sprint/Unlimited Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).

In contrast to discrimination laws, which seek to prevent injury to individuals based on who they are, retaliation laws seek to prevent harm to individuals based on what they do.  
In re Norman-Curry, CSA 28-07 and 50-08, p. 13 (2/27/09) citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2412 (U.S. 2006).

To prove retaliation, the appellant must show 1) she engaged in a protected activity in opposition to discrimination, 2) she was subsequently subject to an adverse  employment action, and 3) there is a causal link between the protected activity and  the adverse action.  
In re Norman-Curry, CSA 28-07 and 50-08, p. 13 (2/27/09), citing  Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2412  (U.S. 2006).

Appellant who lodged a sexual harassment grievance against her supervisor and was subsequently suspended for 15 days has met the first 2 elements of a retaliation claim.  
In re Norman-Curry, CSA 28-07 and 50-08, p. 13 (2/27/09).

To establish causation, appellant must either show a very close temporal proximity between the protected activity in which she engaged and the retaliatory conduct, or offer additional evidence.  
In re Norman-Curry, CSA 28-07and 50-08, p. 14 (2/27/09), citing Marquez v Baker Process, Inc., 42 Fed. Appx. 272, 275-276 (10th Cir. 2002).

A 3-month period, standing alone, is insufficient to establish causation in a retaliation claim.  
In re Norman-Curry, CSA 28-07 and 50-08, p. 14 (2/27/09), quoting Marquez v Baker Process, Inc., 42 Fed. Appx. 272, 275-276 (10th Cir. 2002).

A retaliation appeal must allege that the agency retaliated because appellant engaged in some protected activity.  
In re Frazier, CSA 24-08, p. 2 (Order 4/30/08).

To establish a prima facie case of retaliation, an appellant must show 1) that she engaged in a protected activity, 2) that she was subsequently subject to an adverse employment action, and 3) that there is a causal link between the protected activity and the adverse action.  
In re Lombard-Hunt, CSA 75-07, p. 10 (3/3/08), citing In re Felix, CSA 46-07, p. 1 (Order 8/23/07); Belgasem v. Water Pik Techs., Inc., 457 F. Supp. 2d 1205, 1218-1219 (D. Colo. 2006).

An employee who drafted a supportive letter for presentation at a co-worker’s pre-disciplinary meeting engaged in a protected activity under §15-106.  
In re Lombard-HuntCSA 75-07, p. 10 (3/3/08).

In a claim of retaliation, appellant must prove that the agency’s adverse action resulted from her complaint to the Denver Board of Ethics, or for reporting discrimination or assisting the city in an investigation of a discrimination complaint.  
In re Padilla, CSA 25-06, p. 12 (9/13/06); §15-106.

In order to prove retaliation, appellant must submit evidence that she engaged in a protected activity such as a report or complaint of discrimination, and that the suspension was motivated by a desire to punish her for that activity.  
In re Diaz, CSA 13-06, p. 7 (5/31/06), citing Poe v. Shari’s Mgmt. Corp., 1999 US App LEXIS 17905 (10th Cir. 1999). 

Appeal alleging that written reprimand was retaliatory must be dismissed as premature if grievance of reprimand does not allege retaliation, and appellant filed no complaint of retaliation under §15-103.  
In re Macieyovski, CSA 24-06 (Order 5/3/06) (decided under former § 18-10 A.).

Retaliation is proven by evidence connecting some adverse action by the agency to a protected activity undertaken by appellant and evidence of intent to retaliate.  
In re Hernandez, CSA 03-06, p. 11 (5/3/06), citing Robben v. Runyon, 2000 U.S. App. LEXIS 1358 (10th Cir.2000); Gunnell v. Utah Valley State College, 152 F. 3d 1253 (10th Cir.1998). 

Intent to retaliate will not be inferred when disciplinary action occurred 1 1/2 years after the protected activity, which was a formal complaint against appellant’s supervisor.  
In re Hernandez, CSA 03-06, p. 11 (5/3/06), citing Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998); Freeman v. Santa Fe Ry., 2000 U.S. App. LEXIS 22343 (10th Cir. 2000); Hemsing v. Philips Semiconductors, 1999 U.S. App. LEXIS 15152 (10th Cir. 1999). 

Retaliation claim is premature where appellant did not file a complaint of retaliation, and grievance filed did not allege retaliation.  
In re Macieyovski, CSA 24-06 (Order 5/3/06) (decided under former § 18-10 A.) .

Jurisdictional rule, when read with rule regarding internal complaint of harassment, clearly intends to afford an agency notice of the nature of the alleged harassment, discrimination or retaliation, and a real opportunity for the agency to investigate, evaluate and correct it.  
In re Lewis, CSA 22-06, p. 2 (Order 5/2/06). 

Neither oral requests for clarification of reprimand nor grievance describing supervisor’s “unacceptable” behavior is an appealable formal complaint of discrimination, harassment or retaliation.  
In re Lewis, CSA 22-06, p. 2 (Order 5/2/06). 

Summary judgment granted on retaliation claim for lack of evidence that supervisor’s comments constituted an adverse employment action or were caused by appellant’s past grievances, both of which are necessary elements to support the claim.  
In re Crenshaw, CSA 18-06, p. 4 (Order 4/6/06), citing In re Garcia, CSA 175-04, p. 5 (7/12/05). 

A retaliation claim must be supported by evidence of an adverse action; i.e., action that is reasonably likely to deter employees from engaging in protected activity.  
In re Johnson, CSA 135-05, p. 4 (Order 3/10/06), citing Ray v Henderson, 217 F.3d 1234 (9th Cir. 2000); Couture v. Belle Bonfils Mem. Blood Center, 151 Fed. Appx. 685, 690 (10th Cir. 2005); Sanchez v. DenverPub. Sch., 164 F.3d 527, 532 (10th Cir. 1998).   

Evidence of an adverse action sufficient to support a retaliation claim is not limited to monetary losses. However, a mere inconvenience or alteration of job responsibilities is not an adverse action, nor is every thing that makes an employee unhappy. Otherwise, no objective test would be possible.  
In re Johnson, CSA 135-05, p. 4 (Order 3/10/06), citing Couture v BelleBonfils Mem.Blood Center, 151 Fed. Appx. 685, 690 (10th Cir. 2005); Sanchez v. Denver Pub. Schools, 164 F. 3d 527, 532 (10th Cir. 1998). 

A supervisor’s order to complete 10 paid hours of remedial training during workday does not constitute action likely to deter protected activity.  
In re Johnson, CSA 135-05, p. 5 (Order 3/10/06). 

A prima facie case for retaliation is made by showing 1) a protected employee action, 2) an adverse employer action after, or contemporaneous with, the employee’s protected action, and 3) a causal connection between the employee’s action and the employer’s adverse action.  
In re Vigil, CSA 110-05, p. 8 (3/3/06), citing Poe v. Shari’s Mgmt.Corp., 188 F.3d 519 (10th Cir. 1999).

Grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation allegation as required by §15-100 et seq. is not ripe for appeal.  
In re Mallard, CSA 129-05, p. 3 (2/23/06).   
 
Where appellant claims supervisor retaliated against him for filing previous appeal, but appellant failed to file timely grievance, hearing officer is without jurisdiction over claim.  
In re Schultz, CSA 78-05 (Order 8/15/05) (decided under former § 18-12). 

Claim of retaliation made in opening statement but not supported by evidence must be dismissed.
 In re Mestas, 37-05, p. 8 (8/4/05).

A prima facie showing of retaliation requires proof that 1) appellant engaged in a protected activity, 2) that was known to the agency, 3) the agency thereafter took an adverse employment action against appellant, and 4) there was a causal connection between the protected activity and the adverse action.  
In re Garcia, CSA 175-04, p. 5 (7/12/05), citing Poe v. Shari’s Mgmt Corp., 1999 US App. LEXIS 17905 (10th Cir. 1999).

Appellant bears the burden of persuasion to prove retaliation.  
In re Garcia, CSA 175-04, p. 5 (7/12/05).

Once appellant establishes a prima facie case of retaliation, the burden shifts to the agency to establish a legitimate, nondiscriminatory reason for the adverse action. Appellant then must demonstrate that the proffered reason was a mere pretext for retaliation.
 In re Garcia, CSA 175-04, p. 5 (7/12/05), citing Poe v. Shari’s Mgmt Corp., 1999 US App. LEXIS 17905 (10th Cir. 1999).

Appellant’s evidence that he addressed wrongdoing at agency, and that he was given a verbal reprimand shortly after, established the first 2 prongs of his retaliation claim.  
In re Owoeye, CSA 11-05, p. 7 (6/10/05).

A prima facie case for retaliation is made by showing 1) a protected employee action, 2) an adverse action by an employer either after or contemporaneous with the employee’s protected action, and 3) a causal connection between the employee’s action and the employer’s adverse action.  
In re Green, CSA 130-04, p. 4 (1/7/05), citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999), citing Morgan v. Hilti, Inc., 108 F. 3d 1319, 1324 (10th Cir. 1997).

NOT FOUND  

2-year gap between protected activity and adverse employment actions lays to waste any claim that temporal proximity evidences a causal connection. In re Koonce, CSB 36-13, p. 3 (10/16/15), citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).

Retaliatory motive is not established by evidence of appellant's exceptional evaluations, the absence of complaints against her, and that the current departmental chief disagreed with the adverse actions. 
In re Koonce, CSB 36-13, p. 3 (10/16/14).

Agency could not have been motivated by this appeal when it ordered appellant to produce his current certification, since the order was issued one month before he filed this appeal.  In re Macieyovski, CSA 55-13, p. 5 (4/1/14).

An agency action, more than 1 year after appellant engaged in a protected activity, is too remote to be materially adverse.  In re Moore, CSA 103-09 and 210-10, p. 3 (10/14/10).

Appellant’s claim that her “below expectations” PEPR was motivated by her HR department’s unlawful retaliation, was rebutted by showing the agency’s HR department refused to accept supervisor’s “meets” rating only because such rating was inconsistent with supervisor’s comments in appellant’s PEPR, and supervisor credibly denied HR exerted any pressure to change the rating for any reason other than to make the rating consistent with her comments.  
In re Moore, CSA 103-09 and 21-10, p. 3 (10/14/10).

No retaliation proven after supervisor changed appellant’s PEPR rating from “meets expectations” to “needs improvement” where supervisor admitted she always knew the proper rating was “needs” but she “chickened out” to avoid further confrontation with appellant, and contentious relationship between them was affirmed by other co-workers.  
In re Moore, CSA 103-09 and 21-10, p. 3 (10/14/10). 

No retaliation shown where Appellant’s continuing errors and refusal to change were the basis for her “needs improvement” PEPR.  
In re Moore, CSA 103-09 and 21-10, pp. 3-6 (10/14/10). 

Appellant’s needs improvement PEPR was based upon her poor performance and not agency’s retaliation where she: often arrived late and checked out early; repeated the same mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; claimed her scanning errors were due to hardware and software problems which no one else encountered; blamed her supervisor for not catching her (appellant’s) errors; and she failed to accept even a modicum of responsibility for her work product.  
In re Moore, CSA 103-09 and 21-10, pp. 3-6 (10/14/10).

Appellant failed to prove that transfer was motivated by retaliation where no one asked supervisor if he knew of appellant's protected activity, and there is no evidence in the record inferring such knowledge.  
In re Gallo, CSB 63-09, p. 4 (3/17/11). 

Appellant must first prove the new supervisor who transferred her knew about or deferred to the alleged discriminatory statements made by the former supervisor in order to prove the transfer would dissuade a reasonable person from engaging in a protected activity.  
In re Gallo, CSA 63-09, p. 3 (8/27/10), aff'd, In re Gallo, CSB 63-09, p. 4 (3/17/11). 

Claim of retaliation not proven where complaint alleging discrimination occurred after the asserted act of retaliation.  
In re Morgan, CSA 63-08, p. 17 (4/6/09).

Where appellant requested agency to accommodate his religious observance of Sabbath only after he learned he was scheduled to work on Saturdays, causation element of retaliation was not established.  
In re Morgan, CSA 63-08, p. 17 (4/6/09).

Retaliation claim must fail where agency’s investigation into appellant’s alleged insubordination began two days before her grievance claiming retaliation, because appellant cannot demonstrate the investigation was motivated by her grievance.  
In re Norman-Curry, CSB 28-07 and 50-08, pp. 2, 3 (9/3/09). 

Where agency’s investigation into basis for discipline began before agency had knowledge of the grievance, the employee cannot demonstrate the investigation was motivated by her grievance and therefore her retaliation claim fails.  
In re Norman-Curry, CSB 28-07 and 50-08, p. 2 (9/3/09).

Where the incident appellant claims was an adverse agency action preceded the alleged protected activity, no retaliation claim can be established, since those who take an adverse action must first know about the protected activity.  
In re Norman-Curry, CSB 28-07 and 50-08, p. 2 (9/3/09).

Without very close temporal proximity between the protected activity and the retaliatory conduct, the appellant must provide additional evidence to establish causation.  
In re Norman-Curry, CSA 28-07 and 50-08, p. 14 (2/27/09), citing Marquez v. Baker Process, Inc., 42 Fed. Appx. 272, 275, 276 (10th Cir. 2002) (add’l citation omitted).

A 7-month lapse in time between the filing of a grievance and the assessment of discipline is too remote to establish a causal link between the 2.  In re Norman-Curry, CSA 28-07 and 50-08, p. 14 (2/27/09).

Absent additional evidence concerning causation, a seven-month lapse in time between appellant’s grievance and the alleged retaliation is too remote to establish a link between the 2, the necessary third element appellant needs to prove retaliation.  In re Norman-Curry, CSA 28-07 and 50-08, p. 14 (2/27/09).

Appellant's assertion that he was dismissed in retaliation for scheduling a meeting with management to discuss his situation fails to identify a protected activity required to support a claim of retaliation.  
In re Mora, CSA 125-08 (Order 11/28/08).

Where supervisor’s more distant attitude toward appellant preceded her protected activity, and termination was supported by ample evidence, appellant failed to prove causal link between termination and protected activity.  
In re Lombard-Hunt, CSA 75-07, p. 10 (3/3/08).

Appellant failed to prove she was engaged in some protected activity before the imposition of the layoff.  In re Foley, CSA 19-06, p. 14 (11/10/06).  

Evidence indicates no causal connection between previous career service appeals and disciplinary action, and therefore retaliation claim is denied as unproven.  
In re Diaz, CSA 13-06, p. 7 (5/31/06).    

Neither a single order to undergo training nor written notes critical of appellant’s performance is an adverse action needed to prove retaliation claim.  
In re Johnson, CSA 135-05, p. 4 (Order 3/10/06).   

Prima facie case of retaliation claim was not established because appellant failed to prove a causal connection between protected actions and agency’s actions against her.  
In re VigilCSA 110-05, p. 8 (3/3/06). 

Appellant did not file an internal complaint of retaliation, and therefore did not establish a claim of retaliation on appeal.  
In re Schultz, CSA 130-05, p. 3 (2/27/06). 

Agency’s interest in upholding its regulations against e-mail abuse rebutted appellant’s evidence that she was terminated five days after her testimony for a co-worker, therefore appellant failed to establish retaliation claim by a preponderance of the evidence.  In re Garcia, CSA 175-04, p. 6 (7/12/05).

Appellant’s claim that her termination was in retaliation for whistle-blowing was not established by evidence that she complained to her supervisors about another employee’s work, since that evidence did not prove she reported on any unlawful activity.  
In re Garcia, CSA 175-04, p. 6 (7/12/05). 

Appellant failed to prove her termination was retaliatory for her application for bi-lingual pay differential, as appellant failed to show that that her application was a protected activity, or that the application caused the termination.  
In re Garcia, CSA 175-04, p. 6 (7/12/05).  

Appellant failed to prove retaliation for her request for promotion, as a request for promotion is not a protected activity, and evidence of causation was absent.  
In re Garcia, CSA 175-04, p. 6 (7/12/05).

Merely stating that others were out to get him was insufficient to establish prima facie case for retaliation.  
In re Owoeye, CSA 11-05, p. 7 (6/10/05).

Adverse Action

Retaliatory motive is not proven by evidence that there were no complaints about appellant's conduct, her evaluations were exceptional, and that the division chief did not agree with the safety manager's decision.  In re Koonce, CSB 36-13, p. 3 (10/16/14).

Review of record does not prove any of the factual findings made by hearing officer were clearly erroneous. 
In re Koonce, CSB 36-13, p. 3 (10/16/14).

Pretext only arises in the context of a McDonnell Douglas analysis, after a plaintiff has proven a prima facie case and the employer has offered a legitimate non-discriminatory or non-retaliatory reason for its action. 
In re Koonce, CSB 36-13, pp. 3-4 (10/16/14), citing EEOC v. PVNF, 487 F.3d 790, 805 (10th Cir. 2007).

McDonnell Douglas burden-shifting model is not applicable to a hearing officer's ultimate holding after a full trial on the merits, where the single issue is whether there was sufficient evidence to warrant a determination that the adverse action was taken because of the protected activity.  
In re Koonce, CSB 36-13, p. 4 (10/16/14).

Employer is not required to produce any evidence that adverse action was taken for legitimate, non-discriminatory reasons where hearing officer found the employee failed to produce any evidence of causation, the third element of a prima facie case of retaliation. 
In re Koonce, CSB 36-13, p. 4 (10/16/14).

Retaliation under this rule does not require proof of an appealable adverse action.  In re Koonce, CSA 36-13 (3/17/14), CSR §§ 15-106; 19-10 A.1; Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

An adverse action sufficient to prove retaliation does not require discipline or loss of pay.  In re Koonce, CSA 36-13, p. 6 (3/17/14).

City rule prohibiting retaliation does not require a heightened measure of proof based on the Supreme Court's
Nassar decision under Title VII.  In re Koonce, CSA 36-13, p. 6 (3/17/14), citing Univ. of TX Southwestern Medical Center v. Nassar, 570 U.S. 2517 (2013).   

Title VII does not preempt state and local laws which provide greater protection against discriminatory conduct.  In re Koonce, CSA 36-13, p. 5 (3/17/14), citing California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987).

Given the intent of the Career Service Rules to encourage complaints, investigations and remedial action for less serious behavior than that which violates federal  law, retaliation under § 15-106 need not require the same level of evidence necessary to prove retaliation under Title VII.  In re Koonce
, CSA 36-13 p. 5, (3/17/14), citing California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987).

Written reprimand, removal from the position of acting major, and performance improvement plan are all actions that would deter a reasonable person in appellant's position from  filing a complaint of discrimination.  In re Koonce, CSA 36-13, p. 5 (3/17/14).

Appellant failed to prove removal of supervisory duties was retaliation for discrimination complaint where the decision-maker took that action to protect the identities of appellant's subordinates who had complained about her, and the same action was taken against the manager who was the subject of appellant's complaint. In re Koonce, CSA 36-13, pp. 5-6 (3/17/14), citing In re Maestas, Salazar Fuentes and Sierra, CSB 64-07, 61-07, 62-07 and 67-07 (6/30/08). 

Protected activity

Appellant proved that she engaged in protected activity by evidence that she complained to human resources of racial harassment, and the complaint was investigated.  In re Koonce, CSA 36-13, p. 5 (3/17/14).

A refusal to mediate is not a report of discrimination or other action that assists the City with a discrimination complaint under CSR 15-106.  In re Koonce, CSA 36-13, p. 5 (3/17/14).

 
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