EMPLOYER DISCRIMINATION; DISCRIMINATION – Lack of Knowledge of Protected Activity

Single Topic for Decision 2184M

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Supervisors had knowledge of employee’s protected activity in sending copy of written statement about workplace issue to union representative, where union representative’s name appeared directly below supervisor’s name on “cc” line of statement. Although decisionmaker did not have knowledge of protected activity, decision was based solely on recommendation of supervisor who knew of employee’s protected activity. Under the subordinate bias theory, a supervisor’s unlawful motive may be imputed to the decisionmaker when: (1) the supervisor’s recommendation, evaluation, or report was motivated by the employee’s protected activity; (2) the supervisor intended for his or her conduct to result in an adverse action; and (3) the supervisor’s conduct caused the decisionmaker to take adverse action against the employee.