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Retaliation

IN GENERAL 


Appellant’s use of FMLA leave was a protected activity for her retaliation claim. In re Gerovic, CSA 77-17, 9 (6/1/18).

Agency’s transfer of Appellant’s job assignment, based on its valid business needs, was not an adverse employment action. In re Gerovic, CSA 77-17, 9-10 (6/1/18).

A retaliation claim requires appellant to establish (1) she engaged in a protected activity; (2) the agency took an action that a reasonable employee would have found materially adverse; and (3) there is a causal connection between the protected activity and the adverse action. In re Burdett, CSA 28-17, 6 (2/13/18), citing In re Koonce, CSB 36-13A (10/16/14); Metzler v. Federal Home Loan Bank of Topeka, 464 F. 3d 1164 (10th Cir. 2006).

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 36-13A, 3-4 (10/16/14), citing EEOC v. PVNF, 487 F.3d 790, 805 (10th Cir. 2007).

McDonnel Douglas analytical model applies to summary judgment motions and drops out once there has been a full trial on the merits. In re Koonce, CSB 36-13A, 3-4 (10/16/14).

Temporal proximity is a relevant circumstance that may establish retaliation only if the adverse action followed very closely after the protected activity. In re Burdett, CSA 28-17, 6 (2/13/18), citing Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999).

A two-year gap between the reversal of appellant’s prior suspension and the current suspension is too remote to establish a causal connection between them. In re Burdett, CSA 28-17, 6 (2/13/18), citing Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999).

Appellant established no protected activity where she claimed agency director saw her enter the CFO’s office, but she did not state what she discussed and there was no evidence the director knew what was discussed. In re Burdett, CSA 28-17, 6 (2/13/18).

Denial of impartial Hearing Officer at a pre-disciplinary meeting does not establish an element of retaliation since no Hearing Officer is required at that stage of discipline. In re Burdett, CSA 28-17, 7 (2/13/18).

Disagreement with prior work reviews and Performance Improvement Plan do not establish an element of retaliation. In re Burdett, CSA 28-17, 7 (2/13/18).

Disagreement with a prior verbal reprimand is not a protected activity. In re Burdett, CSA 28-17, 7 (2/13/18).

Supervisor did not establish retaliation where she disagreed with her double demotion based on the agency’s assessment of her problematic interactions with subordinates, but the evidence was overwhelmingly against her. In re Burdett, CSA 28-17, 7 (2/13/18).

For her retaliation claim, 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 36-13A, 2 (10/16/14).

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

The Supreme Court decision in Nassar making it more difficult to prove retaliation is not sound policy for the City. In re Koonce, CSB 36-13A, 5 (10/16/14), citing Univ. of Texas SW Medical Center v. Nassar, 570 U.S. 338 (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 36-13A, 5 (10/16/14).

In defending a retaliation claim based on discipline, the agency does not bear the burden to justify the discipline. In re Koonce, CSB 36-13A, 2 (10/16/14).

Appellant at all times bears the burden to establish that agency's discipline was motivated by retaliatory animus resulting from the protected conduct. In re Koonce, CSB 36-13A, 2 (10/16/14).

Appellant bears burden to prove his retaliation claim by a preponderance of the evidence. In re Macieyovski, CSA 55-13, 4 (4/1/14). 

A claim of retaliation under the CSRs 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, 10 (3/18/13), citing In re Rock, CSA 09-10, 6-7 (10/5/10); Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2415 (U.S. 2006).

Appellant did not prove retaliation claim where she 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, 10 (3/18/13).

Appellant failed to prove that her transfer was motivated by retaliation where there was no evidence in the record inferring that supervisor knew of her protected activity. In re Gallo, CSB 63-09A, 4 (3/17/11).

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

For her retaliation claim, 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 63-09A, 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 63-09A, 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 63-09A, 4 (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 decision cannot be retaliatory. In re Gallo, CSB 63-09A, 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 63-09A, 4 (3/17/11).

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

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 harassmentIn re Moore, CSA 103-09 & 21-10, 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 & 21-10, 5 (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 & 21-10, 4 (10/14/10).

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 the two. In re Rock, CSA 09-10, 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 had been unaware of her claim. In re Rock, CSA 09-10, 7 (10/5/10).

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

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, 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, 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, 2413 (U.S. 2006).

The kinds of actions described as materially adverse are no longer limited to those actions 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 the response took place within the scope of employment. In re Sanders, CSA 62-09, n.6 (9/24/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).  

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, 8 (9/24/10).

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

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

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, 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

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

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, n.1 (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, 3 (8/27/10).

Deputy’s transfer was motivated by new supervisor's determination to rebuild jail units according to his mission, not in retaliation for her protected activity. In re Gallo, CSA 63-09, 4 (8/27/10), aff’d  In re Gallo, CSB 63-09A, 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, 8 (8/27/10).

Adverse action necessary to assert retaliation claim is agency action that is reasonably likely to deter employees from engaging in protected activity. In re Rems, 31-10, 2 (Order 5/12/10), citing In re Johnson, CSA 135-05, 4 (3/10/06). 

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, 2 (Order 5/12/10), citing In re Johnson, CSA 135-05, 4 (3/10/06). 

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

Appellant claiming retaliation proved he engaged in a protected activity by exercising his right to take FMLA leave. In re Abeyta, CSA 110-09, 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, 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, 2 (Order 2/9/10), citing CSR 15-106 [now 16-22]; 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 legitimate business reason for its actions, appellant must 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, 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, 3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

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

As a prerequisite for demonstrating a cause and effect relationship between her protected activity and the agency's adverse action against her, appellant must show those who took the adverse action knew about her protected activity or there can be no inference of a retaliatory motive. In re Norman-Curry, CSB 28-07A & 50-08A, 2 (9/3/09), citing Hinds v. Sprint/Unlimited Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).

Appellant bears the burden of proving his retaliation claim. In re Morgan, CSA 63-08, 9 (4/6/09) citing C.R.S. 24-4-105(7); Department of Institutions v. Kinchen, 886 P.2d 700 (Colo. 1994). 

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 two. In re Morgan, CSA 63-08, 17 (4/6/09), citing In re Felix, CSA 46-07, 1 (Order 8/23/07).

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 & 50-08, 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 & 50-08, 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 fifteen days met the first two elements of a retaliation claim. In re Norman-Curry, CSA 28-07 & 50-08, 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 of causation. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09), citing Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

A three-month period, standing alone, is insufficient to establish causation in a retaliation claim. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09), quoting Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

Appellant must allege in her retaliation appeal that the agency retaliated because she engaged in some protected activity. In re Frazier, CSA 24-08, 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, 10 (3/3/08), citing In re Felix, CSA 46-07, 1 (Order 8/23/07); Belgasem v. Water Pik Techs., Inc., 457 F. Supp. 2d. 1205, 1218-1219 (D.Colo. 2006).

An employee who provided a supportive letter for presentation at a co-worker’s pre-disciplinary meeting engaged in a protected activity under CSR 15-105 [now 16-22]. In re Lombard-Hunt, CSA 75-07, 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, 12 (9/13/06); CSR 15-106 [now 16-22].

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, 7 (5/31/06), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999). 

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, 11 (5/3/06), citing Robben v. Runyon, 203 F.3d 836 (10th Cir. 2000); Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998). 

Intent to retaliate is too tenuous when agency imposed disciplinary action one and one-half years after the protected activity, appellant’s formal complaint against his supervisor. In re Hernandez, CSA 03-06, 11 (5/3/06), citing Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998); Freeman v. Santa Fe Ry., 229 F.3d 1163 (10th Cir. 2000); Hemsing v. Philips Semiconductors, 185 F.3d 874 (10th Cir. 1999). 


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 of the claim. In re Crenshaw, CSA 18-06, 4 (Order 4/6/06), citing In re Garcia, CSA 175-04, 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, 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. Denver Pub. 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, but a mere inconvenience or alteration of job responsibilities is not an adverse action, nor is everything that makes an employee unhappy. In re Johnson, CSA 135-05, 4 (Order 3/10/06), citing Couture v Belle Bonfils 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 that appellant complete ten paid hours of remedial training during workday does not constitute action likely to deter protected activity, particularly where same supervisor gave appellant “exceeds expectations review 2 weeks before training order. In re Johnson, CSA 135-05, 5 (Order 3/10/06). 

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

Appellant bears the burden to establish a prima facie case on a claim of retaliation. Thereafter, the burden shifts to the agency to establish a legitimate, nondiscriminatory reason for the adverse action. Appellant is then given the opportunity to demonstrate that the claimed reason was a mere pretext for retaliation. In re Williams, CSA 65-05, 8 (11/17/05), citing In re Garcia, CSA 175-04, 5 (7/12/05); Poe v. Shari’s Mgmt Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Claim of retaliation made in opening statement but unsupported with evidence must be dismissed. In re Mestas, 37-05, 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, 5 (7/12/05), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Appellant bears the burden of persuasion to prove retaliation. In re Garcia, CSA 175-04, 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, 5 (7/12/05), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. 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 two prongs of his retaliation claim. In re Owoeye, CSA 11-05, 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 agency either after or contemporaneous with the employee’s protected action, and 3) a causal connection between the employee’s action and the agency’s adverse action. In re Green, CSA 130-04, 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  


Appellant did not prove retaliation by her supervisor who lacked authority to discipline her, and about whom she did not complain during the pre-disciplinary proceedings. In re Gerovic, CSA 77-17, 10 (6/1/18).

Employee failed to prove that agency suspended her in retaliation for her use of FML, where she had used approved FML for ten years before the claimed retaliation. In re Colquitt, CSA 34-15, 7 (10/30/15).

Two-year gap between protected activity and adverse employment actions lays to waste any claim that temporal proximity evidenced a causal connection. In re Koonce, CSB 36-13A, 3 (10/16/14), 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 36-13A, 3 (10/16/14).

Agency was not required to produce evidence of a legitimate, non-retaliatory reason for its actions in the absence of Appellant establishing a prima facie claim. In re Koonce, CSB 36-13A, 4 (10/16/14).

Where Appellant failed to establish any causal connection between her protected activity and the adverse employment action, the hearing could have been ended at the close of Appellant’s case-in-chief. In re Koonce, CSB 36-13A, 4 (10/16/14).

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

Appellant failed to prove that supervisor’s transfer of her was motivated by retaliation where there was no evidence in the record inferring his knowledge of her protected activity. In re Gallo, CSB 63-09A, 4 (3/17/11). 

An agency action, more than one year after appellant engaged in a protected activity, is too remote to be materially adverse. In re Moore, CSA 103-09 & 210-10, 3-4 (10/14/10).

Agency rebutted appellant’s claim, that its “below expectations” PEPR rating of her was motivated by its HR department’s unlawful retaliation, by showing its HR department refused to accept supervisor’s “meets” rating only because it was inconsistent with supervisor’s comments in appellant’s PEPR; and supervisor credibly denied HR exerted any pressure on her to change the rating for any reason other than to make the rating consistent with her comments. In re Moore, CSA 103-09 & 21-10, 4 (10/14/10).

Appellant did not prove retaliation after her supervisor changed her 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, with whom she had a contentious relationship. In re Moore, CSA 103-09 & 21-10, 4 (10/14/10). 

Appellant did not prove retaliation where her continuing errors and refusal to change justified her “needs improvement” PEPR rating. In re Moore, CSA 103-09 & 21-10, 3-6 (10/14/10). 

Appellant’s needs improvement PEPR rating was based upon her poor performance and not agency’s retaliation where she: often arrived late and left early; repeated mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; blamed her scanning errors on phantom hardware and software problems; 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 & 21-10, 5-6 (10/14/10).

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

Where the incident appellant claims was an adverse agency action preceded her alleged protected activity, she cannot prove a retaliation claim, since those who take an adverse action first must know about the protected activity. In re Norman-Curry, CSB 28-07A & 50-08A, 2 (9/3/09).

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

Without very close temporal proximity between the protected activity and the alleged retaliatory conduct, the appellant must provide additional evidence to establish causation. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09), citing Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

A seven-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 two. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09).


Appellant failed to prove retaliation where she did not prove she was engaged in some protected activity before the agency laid her off. In re Foley, CSA 19-06, 14 (11/10/06).  

Appellant did not prove her retaliation claim where the evidence indicated no causal connection between her previous career service appeals and the disciplinary action. In re Diaz, CSA 13-06, 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, 4 (Order 3/10/06).   

Appellant did not establish prima facie case of retaliation claim because she failed to prove a causal connection between her protected actions and agency’s actions against her. In re Vigil, CSA 110-05, 8 (3/3/06). 

Agency’s evidence of its enforcement of its regulations against appellant’s e-mail abuse rebutted her  evidence that she was terminated five days after her testimony for a co-worker. Appellant did not respond, and therefore failed to establish retaliation claim by a preponderance of the evidence. In re Garcia, CSA 175-04, 6 (7/12/05).

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

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

Appellant failed to prove her termination was in retaliation for her request for promotion, which is not a protected activity, and she failed to prove causation. In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant’s statement that others were out to get him was insufficient to establish prima facie case for retaliation. In re Owoeye, CSA 11-05, 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 36-13A, 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 36-13A, 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 trial on the merits, where the single issue is whether there was sufficient evidence to warrant a determination that the agency took adverse action because of appellant’s protected activity. In re Koonce, CSB 36-13A, 4 (10/16/14).

Agency is not required to produce any evidence it took adverse action 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 36-13A, 4 (10/16/14).

Retaliation under this rule does not require proof of an appealable adverse action under federal law. In re Koonce, CSA 36-13, 4 (3/17/14), CSRs 15-106 [now 16-22] and 19-10A.1; Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Retaliation under the career service rules require an appellant to prove (1) she took action to oppose unlawful discrimination; (2) the employer took materially adverse action against her; and (3) there wasw a causal connection between the advers4e action and the protected activity. In re Koonce, CSA 36-13, 45(3/17/14), citing In re Gallo, CSB 63-09, 3 (3/17/11).

An adverse action sufficient to prove retaliation does not require discipline or loss of pay. In re Koonce, CSA 36-13, 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, 4 (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, 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 CSRs to encourage complaints, investigations and remedial action for less serious behavior than that which violates federal law, retaliation under 15-106 [now 16-22] need not require the same level of evidence necessary to prove retaliation under Title VII. In re Koonce, CSA 36-13, 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, 6 (3/17/14).

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

An adverse employment action is employer conduct that changes employee’s status significantly, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. In re Wehmhoefer, CSA 02-08, 3 (2/14/08) citing In re Boden, CSA 86-06, 2 (5/23/07); Burlington Indus., Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998).

Appellant proved that she engaged in protected activity with evidence that she complained to human resources department of racial harassment, which investigated her complaint. In re Koonce, CSA 36-13, 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 [now 16-22] and hence, is not a protected activity. In re Koonce, CSA 36-13, 5 (3/17/14).

 
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