The DOL may proceed with a whistleblower suit against the U.S. Postal Service alleging that it retaliated against an employee who assisted a coworker with her OSHA complaint by providing information about her rights and contact information, a federal district court in Washington ruled. On the same day that USPS learned of the OSHA complaint, the employee was transferred and moved to a “cold, damp corner” of another facility, reassigned to lower-level duties, and had restrictions placed on his communications. He also was denied consideration for a promotion. Determining that the DOL presented sufficient evidence of adverse employment actions taken against the employee, the court denied the employer’s motion for summary judgment (Perez v U.S. Postal Service, August 12, 2014, Martinez, R).

OSHA complaint. The employee, an occupational safety and health technical advisor with USPS, was responsible for safety inspections, investigations, and health and safety rule compliance. Thirteen years and many promotions into his employment, the employee in February 2008 was approached by a temporary worker who said that she was experiencing health complications because of her work on a machine. She was accompanied by two union reps, although she was not a union member. She said that her supervisor had threatened to fire her if she was unable to continue working. The employee informed the temp of her rights and provided her with contact information for OSHA. He also emailed two of his supervisors to tell him about the conversation and let them know that OSHA would determine if there was a health issue.

“Precipitous” transfer. Shortly thereafter, the employee was subjected to retaliation because of the assistance he rendered. A few days after talking to the temp worker — and on the same day that USPS was informed by OSHA of the complaint, he was transferred to another office in a precipitous manner, without being allowed to collect his personal belongings. He was first placed at a desk in the middle of the floor, before being moved to an isolated office in a cold, damp storage area. His duties were reduced to menial responsibilities such as filing reports that had already been prepared by other safety specialists and cleaning his office.

Also on the same day, the employee was informed by email that his manager was “displeased” with his work and that he showed a “continuing and obvious interest in representing the bargaining unit.” He was instructed not to engage in any dialogue with the bargaining unit, with certain exceptions. (A month later, additional restrictions were placed on his communications.) The next day, the distribution operations manager also sent an email to another manager informing her that the plant manager did not want the employee to have anything to do with the OSHA complaint. The employee was then interviewed multiple times by a manager regarding the plant manager’s complaints about his performance in what the employee felt was an “antagonistic and disrespectful” way.

By mid-April, the employee went on FMLA leave due to stress and other ailments and began receiving treatment for depression. Meanwhile, in April and again in July, the employee filed OSHA complaints, which triggered ongoing investigations. When he returned to work in mid-September (after some dispute with the employer over whether he had been cleared to return) he was again placed at a secretary’s desk. His responsibilities prior to the transfer were officially reassigned. In October, he received a formal warning letter, which accused him of not following policies, including his “duty of loyalty” to his employer.

Subsequently, the employee applied for a position as manager of safety. One of the review committee members testified that he was told by the selection officer that she did not want to put the employee’s name forward because of his whistleblower complaint and his prior EEO activity. The employee was not selected for the promotion. In January 2010 he was promoted to an FMLA coordinator position and in 2011 he transferred to a facility in another state.

Adverse actions. Although USPS did not dispute that the employee had engaged in protected activity, it argued that he was not subjected to an adverse employment action. The court disagreed, having “little difficulty” finding that he presented sufficient evidence to raise a genuine issue of material fact regarding whether the discrete adverse actions he alleged could “dissuade a reasonable employee” in the same position. The transfer “substantially altered the nature of his employment,” the court explained, by “curtailing his job responsibilities to the point where he could do little more than clean his desk and file already prepared reports and placing him in a cold, damp corner of the new facility.” Moreover, the restrictions imposed on his job functions and communications were “regarded as unusual and even unprecedented.” Additionally, a trier of fact could find that the performance review and refusal to consider him for a promotion were also adverse employment actions, if proven.

The court also rejected the employer’s argument that the actions were not adverse because they did not result in tangible economic loss or alteration of the terms and conditions of employment. “[A] work reassignment without formal demotion can constitute a cognizable harm sufficient to deter reporting where, as here, it is attended by loss of prestige and newly subjects the employee to undesirable job duties,” the court explained.

Causal connection. USPS conceded that the DOL met its burden of providing evidence of causation as to his transfer; the temporal proximity between his protected activity and his transfer five days later — the same day that the employer received notification from OSHA of a complaint — provided circumstantial evidence of retaliatory animus. As for the promotion decision, it occurred nine months after the employee had assisted the temp worker and, in the intervening months, he had filed two separate OSHA complaints himself. The investigations into those complaints were ongoing at the time he applied for the manager position. Therefore, the temporal proximity, as well as other evidence it discussed in terms of pretext, was sufficient to establish a causal link.

As for pretext, the court found that the DOL met its burden with regards to the denial of promotion. A trier of fact could find that the comment by the selection officer to the committee member showed that she possessed animus, which also “motivated her to ensure” that the employee “would not receive fair and equal consideration” for the position. That evidence alone was enough to preclude summary judgment.

Hostile work environment. The DOL also asserted that the retaliation took the form of a hostile work environment, when the discrete acts were considered in combination. USPS contended that such a claim was not cognizable under OSHA’s retaliation provision and that even if it were, the evidence was not sufficient to raise a triable issue of material fact. Neither the Ninth Circuit nor any other circuit has expressly found such a claim to be cognizable under the anti-retaliation provision of Section 11(c). However, the court noted that imposing a hostile work environment could amount to retaliation under Title VII. The court also agreed with the DOL’s contention that Section 11(c) was to be broadly construed. Ultimately, though, the court said that it was “not prepared, on the basis of the parties’ relatively scant briefing on this issue, to squarely determine this issue of first impression at this stage of the proceedings.”

However, to the extent that such a claim was cognizable, the court had “little trouble locating material issues of fact that require the existence of a hostile work environment to be ascertained at trial.” The DOL presented sufficient evidence from which a trier of fact could find the employer’s conduct subjectively and objectively hostile, and it “produced evidence of a string of incidents of harassment, closely connected in time and by the identity of their perpetrators.” Therefore, the court denied summary judgment on that claim as well, and directed the parties to further brief the issue of whether such a claim is cognizable under Section 11(c).
By Brandi O. Brown, J.D.