U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marleen G,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120172600 Hearing No. 530-2016-00207X Agency No. PHI150648SSA DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 12, 2017, dismissing her complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Attorney Advisor at an Agency Field Office in Mars, Pennsylvania. On August 31, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and reprisal for prior protected EEO activity when: (1) on April 17, 2015, the Agency issued Complainant a negative mid-year performance evaluation, and (2) between June 17, 2015 and August 29, 2015, management subjected Complainant to a hostile work environment, including not providing Complainant feedback on how to improve her performance. The Agency accepted and then investigated Complainant's claims. During the investigation, Complainant stated that she and her supervisor (S1) spoke about her mid-term evaluation briefly and positively, and it was not until the next day that she noticed negative comments about her interpersonal skills on the evaluation. Complainant stated that, in October 2015, the Agency issued her a less than "Outstanding" rating on her annual performance evaluation and it contained negative comments. Complainant stated that the October 2015 rating was undeserved, and she requested feedback after the mid-year to address any concerns before the annual rating. Following the investigation, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final decision by the Agency. Complainant requested a hearing. On May 10, 2017, the assigned AJ issued an Order dismissing the complaint pursuant to 29 C.F.R. §§ 1614.107(a)(1) & (a)(5) for failure to state a claim. The AJ stated, for claim (1), the mid-year performance evaluation was a proposal or preliminary step to take a personnel action and, for claim (2), Complainant was not harmed by the Agency failing to provide performance feedback. On June 12, 2017, the Agency adopted the AJ's dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that the AJ erred in dismissing her complaint. Complainant explained that she alleged reprisal as a basis for the mid-year review, a basis which does not qualify for 1614.107(a)(5) dismissal, and in October 2015, she received an adverse rating (3.5) on her Fiscal Year 2015 annual appraisal. Further, Complainant stated that she alleged additional harassing incidents, beyond lack of performance feedback, for claim (2) that should be considered for the viability of the claim. Complainant alleged that the Chief Administrative Law Judge (S2) threatened that pursuing an investigation into her evaluation through upper management or Human Resources would "blow up in [her] face." Also, on appeal, Complainant asked to add incidents regarding work assignments, denial of reasonable accommodation, threats of discipline, and lack of work recognition in support of her hostile work environment claim (claim (2)).2 ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). Pursuant to 29 C.F.R. § 1614.109(b), an administrative judge may dismiss a complaint, in accordance with 29 C.F.R. § 1614.107, based on their own initiative, after notice to the parties, or upon an agency's motion to dismiss. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't. of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Further, EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that an agency shall dismiss a complaint that alleges that a proposal to take a personnel action, or other preliminary step to taking a personnel action, is discriminatory, unless the complaint alleges that the matter is retaliatory. The Commission has held that a periodic progress review with no permanent effect does not create a personal harm. See Jackson v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23, 1994). However, here, we find differently for two reasons. First, Complainant alleged reprisal as a basis for her mid-year review. As already noted, 29 C.F.R. § 1614.107(a)(5) explicitly states that an allegation of retaliation may not be dismissed because it involved a preliminary step to taking a personnel action. Second, Complainant stated that she received a less than Outstanding annual performance appraisal in October 2015 and it contained negative comments as well. We find that the mid-year evaluation merged with the ultimate annual performance appraisal, which states a claim. Hence, it is appropriate for the Agency to process a claim for unfavorable annual performance appraisal for Fiscal Year 2014 - 2015. Further, for claim (2), the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15; see also Carroll. The Agency dismissed claim (2) for failure to state a claim. During the investigation, Complainant stated that management would not speak to her about her performance or provide feedback, and that S2 told her that pursuing the matter would "blow up in [her] face." Those two incidents are reasonably likely to deter EEO activity and are intertwined with claim (1). Dismissal of claim (2) based on reprisal was also inappropriate. CONCLUSION The Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a request for a hearing with a copy of this decision and the complaint file to the EEOC Hearings Unit of the Philadelphia District Office within thirty (30) calendar days of the date this decision is issued. The matters appropriate to move forward in the process are: (1) whether the Agency discriminated against Complainant based on race and reprisal when it issued her a lower-than- expected Appraisal Year 2015 annual performance evaluation with negative comments and (2) whether the Agency subjected Complainant to a hostile work environment, based on reprisal, between June 17, 2015 and August 29, 2015, including failure to provide performance feedback after her mid-year and S2's comment that further action would "blow up in [Complainant's] face." The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 28, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 The Agency stated that Complainant motioned the AJ to amend her complaint to include the same additional harassing incidents. The AJ dismissed the matter as not sufficiently like or related to claim (2) and remanded the matter to the Agency for pre-complaint processing utilizing the date of Complainant's motion as the date for initial EEO contact. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120172600 2 0120172600