How Do You Prove Retaliation As a Federal Employee?
As an employee of the federal government, you have the right to take a stand against harassment and discrimination, and you have the right to speak up when you witness fraud, waste and abuse (FWA). If you experience adverse employment action after filing a claim or report, you can—and should—speak with a federal employment lawyer about proving a claim for retaliation.
Despite the fact that retaliation (or “reprisal”) is prohibited under most circumstances, retaliation in the federal sector remains common. While federal employers may attempt to justify retaliatory employment action based on negative performance reviews or allegations of misconduct, this is often nothing more than a pretext for taking illegal action against a protected employee.
Proving That You Are a Victim of Employment Retaliation
Even so, proving that you are a victim of employment retaliation can be challenging. As a federal employee, you may have limited access to the information you need, and if you try to handle your retaliation claim on your own, it could end up getting lost in the federal bureaucracy. But, an experienced lawyer can help, and you should not let the challenges involved with filing a claim dissuade you from asserting your legal rights.
Types of Evidence Employees Can Use to Prove Retaliation
As with all types of employment-related claims, seeking remedies for retaliation requires evidence of the wrongdoing you have experienced. When pursuing a claim for retaliation, some examples of the types of evidence that may be available include:
- Your Federal Personnel Folder – Your federal personnel records can serve as evidence of your performance history and the absence of any disciplinary action in the past. If you have a strong record as a federal employee and you suddenly face adverse employment action after filing a complaint or report, this can serve as evidence that the adverse action was wrongful.
- Your Complaint or Whistleblower Report – Your complaint or whistleblower report will be important evidence as well. Federal law only prohibits retaliation against employees who engage in “protected activities.” Your complaint or report will prove that you engaged in a protected activity, and it will help with establishing the timeline of events as well.
- Internal Emails or Messages – If there are internal emails, messages or other communications documenting the decision to take adverse action against you, these could potentially serve as the “smoking gun” in your retaliation case. It isn’t uncommon for these communications to exist, and your lawyer can take legal action to obtain copies of them if necessary.
- Documentation of the Adverse Employment Action – Combined with your federal personnel folder and your complaint or whistleblower report, the documentation of your adverse employment action could paint a clear picture of discrimination. Taken together, these documents could show that the supposed basis for the adverse action is nothing more than a pretext—and that there is only one reasonable explanation for your firing, pay reduction or demotion.
- Circumstantial Evidence – In federal employment retaliation cases, circumstantial evidence can play an important role as well. For example, if the explanation for the adverse employment action keeps changing, if you received disparate treatment compared to similarly situated employees, or if a negative performance review is not justified by a decline in the quality of your work, these are all factors that could point toward retaliation.
A Word of Caution: Removing Federal Property from Government Premises
While you need evidence to prove your retaliation claim, as a federal employee you need to be careful about removing federal property from government premises. Depending on your position, security clearance and various other factors, taking files home or making copies of internal documents could subject you to discipline. To avoid this issue, you should talk to a lawyer before collecting any evidence in support of your retaliation claim.
Proving Your Right To Damages (or Other Remedies) for Retaliation
If you have experienced retaliation as a federal employee, you may be entitled to damages, reinstatement and various other remedies.
To prove your federal retaliation claim, you must be able to establish three key “elements.” Pursuing a federal retaliation claim requires proof that: (i) you engaged in a protected activity, (ii) your federal employer took adverse action against you, and (iii) there was a causal connection between your protected activity and the adverse action. The last element is typically the most challenging, and this is where having as much evidence as possible comes into play.
5 Tips for Protecting Your Federal Employment Retaliation Claim
To give yourself the best chance of pursuing a successful retaliation claim against the federal government, there are both steps you need to take and mistakes you need to avoid. For example, if you think you may have a federal retaliation claim:
- You should avoid doing anything that could jeopardize your federal employment. As mentioned above, you should not remove or copy any records from your federal workplace unless advised to do so by your lawyer. You should also avoid retaliating yourself (i.e., underperforming at work) or doing anything else that could lead to a negative performance review or disciplinary action.
- You should locate all relevant records (to the extent possible). Make sure you know how to access your federal personnel folder and locate your copy of your complaint or report. Make sure you have a copy of the documentation of your adverse employment action as well.
- You should take detailed notes about your situation. Take 10 to 15 minutes to take detailed notes about your situation. What did you report? Who did you report to? When did you first have concerns about retaliation? What was the overall sequence of events?
- You should not discuss your situation with your coworkers or on social media. At this point, you should not discuss your situation with anyone but your lawyer. Do not discuss your claim with your coworkers, and do not post anything related to your federal employment on social media.
- You should speak with a federal employment lawyer promptly. To make sure you do everything necessary to protect your legal rights (and avoid mistakes that could jeopardize your retaliation claim), you should schedule an appointment with a lawyer as soon as possible.
Speak with a Federal Employment Lawyer About Your Retaliation Claim in Confidence
If you have questions about filing a federal employment retaliation claim, we encourage you to contact us promptly. To schedule a confidential consultation at The Law Firm of J.W. Stafford, call 410-514-6099 or tell us how we can reach you online now.