This guide provides an overview of a federal government agency’s obligation to articulate a legitimate, non-discriminatory reason in Equal Employment Opportunity (EEO) complaints and is applicable to federal government applicants and employees.
To initiate a discrimination complaint, an applicant or employee of the federal government, referred to as the complainant, files an EEO complaint with the applicable federal government agency alleging that he or she was subjected to discrimination. After the complainant identifies the action that he or she believes is discriminatory, the agency has the burden to articulate a legitimate, non-discriminatory reason for the action at issue. This guide discusses the agency*s burden to do so, including examples of when the agency does and does not meet its burden.
Overview Of Burdens Of Proof In EEO Complaints
At all times, the complainant bears the burden to prove that unlawful discrimination occurred. In most cases, the following legal framework applies to the case. First, the complainant must make an initial showing, referred to as a prima facie case, that the action at issue may have been discriminatory. Complainant v. U.S. Postal Serv., EEOC App. No. 0120142515 (Dec. 4, 2014) (citing Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978)). After the complainant establishes a prima facie case of discrimination, the burden shifts to the agency accused of discrimination to articulate a legitimate, non-discriminatory reason for the actions at issue. Id. (citing Tx. Dep*t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981)). Finally, if the agency meets its burden, the complainant must present evidence sufficient to find that the agency*s articulated reasons are merely a pretext for discrimination. See id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993)).
An Agency Generally Will Be Able To Meet Its Burden Of Production
The agency*s burden is one of production, not persuasion. This means that to meet its burden, the agency only needs to articulate a legitimate reason for its action; it does not need to convince a decision-maker that this reason is accurate, although an agency typically will do so in effort to undercut a complainant*s evidence of pretext.
Because the agency only needs to identify a legitimate reason for its actions, it typically will be able to meet its burden. For example, in Cassie v. United States Postal Service, EEOC App. No. 01A60702 (May 4, 2006), a complainant was not selected for a position after his supervisor told the selecting official that *complainant was frequently away from his desk and socialized too much with other employees.* The Equal Employment Opportunity Commission (EEOC) affirmed the agency*s final decision finding no discrimination occurred. Id. In doing so, the Commission held that the supervisor articulated a legitimate non-discriminatory reason for its actions, particularly because the supervisor had advised the complainant in the past regarding his work habits. Id.
There Are Circumstances Where An Agency Is Unable To Meet Its Burden
On occasion, an agency is unable to meet its burden of production. This typically occurs where an agency is unable to identify a decision-maker and/or failed to maintain documentation pertaining to its decision. For example, in Stewart v. Department of Justice, EEOC App. No. 01A41400 (Sept. 29, 2005), the EEOC explained that *[w]hile the agency's burden of production is not onerous, it must nevertheless provide some specific, clear, and individualized explanation for the treatment accorded the affected employee.* (citing Young v. Dep*t of Treasury (Internal Revenue Service), EEOC Req. No. 05940517 (Oct. 13, 1995)). The EEOC held that the agency failed to meet its burden where it could not articulate with specificity the reason it selected three male employees rather than the complainant, who was female. Stewart, EEOC App. No. 01A41400. Where an agency does not meet its burden of production, the EEOC may order the agency to provide additional documentation related to its decision or issue a decision in the complainant*s favor.
Each situation is different. As such, this is not a question that can be answered without evaluating each case individually. Employment attorneys experienced in representing federal employees, such as those as The Wick Law Office, can provide advice to assist you with this determination.
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