EEO Department Head’s Conduct Went Beyond His Job Duties, Was Protected Activity

Garrett Wozniak
Garrett Wozniak
07/07/2016

In Brooking v. New York Dep’t of Taxation & Fin., No. 1:15 cv-0510 (N.D.N.Y. July 5, 2016), a federal district court in New York ruled that an employee whose job is to report and/or investigate the discrimination complaints of other employees does not engage in protected activity merely by doing those things required of his job.  That same employee does engage in protected activity, however, when he actively supports the complaints of others or is critical about discrimination in the workplace.

In 2009, Christopher Watkins was named the Director of the Office of Diversity and Affirmative Action for the New York State Department of Taxation and Finance (the “Department”).  In 2011, Watkins’ office received numerous complaints of race and gender discrimination allegedly occurring in the Department’s Buffalo office.  Watkins and his staff developed a strategy to address those complaints.  The strategy included a series of town hall style meetings.

Following one such meeting, Watkins was told that his office would no longer be investigating EEO complaints within the Department because the Department did not timely respond to requests from the EEOC or the New York State Division of Human Rights, and because many employees complained about how Watkins’ office conducted investigations.  Watkins tried to dissuade his superiors from removing the Department from his purview, and advocated that the Department take action to address the climate of widespread discrimination in the Buffalo office.  A short time later, Watkins was told that his services were no longer needed — he would be kept on for a few more months, but should start looking for other opportunities.

During a training session at the Buffalo office, Watkins’ staff was asked whether there was a white individual who could deliver the training because the message would be better received from a white instructor than an African-American.  Watkins expressed concern about this incident (and others) and explained the discriminatory attitudes in the department and recommended that the department take appropriate action with respect to the individuals who engaged in discriminatory conduct.  In March, Watkins was told that he could retire or that he would be fired in a few days.  He was also told that he would be given a poor performance evaluation and reference.

The court dismissed the performance evaluation and reference based claim because Watkins did not allege that he sought employment after his termination or that a negative reference was actually provided to a prospective employer.  On the retaliation claim, the court concluded that Watkins alleged facts showing that he complained about discrimination, suggested action, and acted in good faith when he communicated his concerns.    Watkins’ complaints of discrimination were protected activities because he did more than communicate about and investigate the complaints of others — by his actions he became an individual engaged in protected opposition activity.

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