Sally Jay’s supervisor, Bill, asks her if she would like to join him for lunch. Sally accepts. During lunch, Sally expresses her desire to move up in the Agency. She laments that she has tried for many years but to no avail. Bill says he can help her move up. He asks her to send her resume to him but tells her to send it to his personal email address from her personal email address to keep the matter “private.” She agrees. The next week he asks her to lunch again. During this meeting, he asks her if she would like to accompany him to a hotel lounge later that night after work. Sally feels uncomfortable but doesn’t want to rock the boat because, after all, he agreed to help her move up in the Agency. So she agrees to go with him to the hotel. Later, at the lounge, he has a few drinks and asks her to stay with him at the hotel for the night. Sally is petrified. Sally pretends to get sick and leaves abruptly. She does not want to see Bill at work the next day so she decides to call in sick. Before returning to work she sends an email to her boss’s supervisor, Dave, saying that she needs to speak with him about an urgent matter. Dave schedules a meeting with Sally and she breaks down and tells all. He assures her that he will speak to Bill. Two weeks go by. Nothing happens. Suddenly, Bill begins writing her up for minor things and threatens to put her on a performance improvement plan. What just happened? And what can she do?
What just happened to Sally can be considered Quid Pro Quo Sexual Harassment and Retaliation. An employer cannot offer a benefit such as a promotion in exchange for a sexual favor. Similarly, an employer cannot demote an employee, withhold any benefits from him or her, or punish him or her because s/he refuses to engage in the requested conduct. Is the hypothetical above a “clear cut case” of sexual harassment? Well, the Agency could argue that Bill did not tell Sally verbatim “I will help you move up if you sleep with me” and that is true based on the facts presented. But it can be implied from Bill’s actions that he offered the promotion first to bait Sally into more dates and then proceeded to ask for what he wanted so it would not appear that the offer to help her and his request for sex were linked. However, after she reports Bill to Dave, he begins to take disciplinary actions against her. The Agency will argue that the actions were justified but Sally will argue that the timing of his conduct implies that his actions were retaliatory.
What are Sally’s rights at this point?
Well, Sally has the right to stay silent if she chooses to or she can report her boss. If she chooses to do the latter, she only gets 45 calendar days from the date of his conduct to file her informal complaint with the Agency. The process for filing an informal EEO complaint varies between agencies but it is commonly a process that consists of either filling out a form provided by the Agency, writing up a complaint or calling in the complaint to a phone number provided by the Agency. After the initial reporting is done, Sally will do an interview with an EEO counselor who will write up the complaint and select the type of alleged conduct Sally is complaining about and reach out to the Agency’s resolving officials to try to resolve the complaint informally. If no resolution is reached, Sally can file a formal complaint within 15 calendar days from the date she receives written Notice of her Right to File a Formal Complaint. This notice is usually sent by certified mail. If Sally misses either the 45-day deadline or the 15-day deadline her right to engage in the EEO process ends. If she meets both deadlines, then her case will proceed to the formal phase where the Agency will begin an official investigation into the allegations. This investigation consists of interviews with Sally and whomever she names as responsible management officials. By regulation, the Agency has 180 days to complete its formal investigation. After such time, Sally will either receive a Final Agency Decision, a hearing with an Administrative Judge from the EEOC, or a right to sue letter. Whether she gets a FAD, a hearing, or a right to sue letter depends on which option she selected when she received her Notice of Right to File a Formal Complaint. Sally should consult with legal counsel to determine which option best suits her situation. After the 180 days is over, she will proceed with one of the three options. If she requests a right-to-sue letter she gets 90 days to file a civil lawsuit in federal court. If Sally files her lawsuit, Sally must select a court that is in the correct jurisdiction.
The process for federal employees is very time-sensitive. Missing any of the deadline discussed in this blog will almost always lead to automatic dismissal of an employee’s claims no matter how legitimate those claims may be. While there are very narrow exceptions, federal courts differ on which exceptions they will apply and when.
By Yaida O. Ford