U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Frida L,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 0120181340 Agency No. 200H05412018100955 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's February 16, 2018 dismissal of her complaint of 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 Chief of Nursing Research (VN-4) at the Agency's Louis Stokes Cleveland VAMC facility in Cleveland, Ohio. On January 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discrimination on the basis of reprisal for prior protected EEO activity (Agency Case No. 200H05412017101281): 1. From October 24, 2017 through December 12, 2017, her supervisor ("S1"), refused to remove negative statements she noted on Complainant's annual performance rating, and 2. On December 14, 2017, S1 refused to remove the negative statement about the Research Tracker from Complainant's performance appraisal. Both allegations concern Complainant's Executive Career Field ("ECF") Performance Appraisal for the period of October 1, 2016 through September 30, 2017 ("2017 Appraisal"). Complainant alleges that she engaged in EEO activity during that time frame, and S1, the Associate Director of Patient Care Services, was her supervisor and rater. Complainant alleges, regarding her prior activity, that S1 spoke about "forcing" older employees to retire and not allowing employees that filed EEO complaints into her meetings. On or around October 24, 2017, S1 reviewed Complainant's 2017 Appraisal and added three comments about missing data for projects that were the part of the basis of Complainant's performance score. On December 12, 2017, Complainant met with S1, and provided her with evidence that she completed and submitted the "missing" data for two of the three comments. The remaining comment, referenced in Claim 2 of the instant complaint, concerned the Research Tracker project, which "was missing a number of items." Complainant disputed the reasonableness scoring metric, and provided evidence that she previously informed S1 that the time frame was not feasible in their last meeting about her 2017 Appraisal. On December 14, 2017, S1 deleted the two comments Complainant proved were false, but did not change Complainant's score for those categories. S1 did not delete the Research Tracker comment. Complainant, having worked in the same position since 2003, alleges the three negative comments S1 included in her 2017 Appraisal were unusual and indicated an effort by S1 to force her to retire as retaliation for her 2017 EEO activity. She also alleges that the comments created a hostile work environment. The Agency dismissed the matter for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(1) provides 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 or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).2 For allegations of reprisal, the adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). We have previously found comments or ratings on a performance appraisal are sufficient to render a complainant aggrieved. See Woods v. Dep't of Transportation, EEOC Appeal No. 01A34307 (Feb. 25, 2004) (Complainant was aggrieved when he received a "proficient" performance appraisal, which allegedly contained derogatory remarks.) Here, Complainant argues that despite demonstrating that S1's comments were incorrect, and convincing S1 to delete them from her record, S1 failed to raise her scores to reflect that she completed her performance goals. Complainant also alleges that S1's refusal to remove the comment about incomplete portions of the Research tracker project, negatively impacted because it is now part of her official record. As discussed above, the Agency's argument that Complainant did not allege an "employment harm" is not supported in the record. Therefore, we disagree with the Agency's assessment that S1's alleged actions would not deter EEO activity. Moreover, the Agency's rationale that Complainant understands that her Performance Appraisal is "management's decision to make," and that "all except one of the statements [Complainant] considered were negative were removed" go to the merits of the formal complaint, and are irrelevant to the procedural issue of whether Complainant stated a justiciable claim. See Ray v. United States Postal Serv., EEOC Appeal No. 0120083541 (Jul. 26, 2012) citing Osborne v. Dep't of the Treas., EEOC Request No. 05960111 (July 19, 1996). We find the Agency erred in dismissing Complainant's complaint for failure to state a claim. CONCLUSION Accordingly, 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 (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. 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 June 6, 2018 __________________ 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 Complainant alleges that S1's actions resulted in a hostile work environment, however, we find her complaint is more appropriately assessed as a disparate treatment claim because it concerns a single performance appraisal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181340