EEO Representative Has Viable Claim of Retaliation

Wednesday, October 02, 2013

In Perlinger v. Social Sec. Admin., EEOC Appeal No. 0120131695 (July 31, 2013), the Equal Employment Opportunity Commission Office of Federal Operations (OFO) held that an EEO representative had a viable retaliation claim, thus reversing the agency’s dismissal for failure to state a claim.

Perlinger worked as a claims representative at a Social Security Administration facility in Kansas City, Missouri. Perlinger alleged that he was harassed by an agency official on the EEO case in which he was representing a co-worker, which constitutes protected activity. Specifically, Perlinger alleged that, approximately a week prior to a formal meeting with the official on the EEO case, the official “drilled” him with questions about the case, while another official took notes, during a meeting characterized as a “formal investigatory meeting on the usage of EEO time.” In addition, Perlinger alleged that it was indicated that he was entitled to bring a union representative to the meeting, which made him believe that the meeting was leading to disciplinary action.

The agency dismissed Perlinger’s EEO complaint on the ground that he had failed to allege he suffered a personal loss or harm to a term, condition or privilege of his employment and because the alleged acts did not rise to the level of harassment. On appeal, the OFO first noted that, to state a viable claim of retaliation, a complainant only needs to allege that (1) he was subjected to an action which a reasonable employee would have found materially adverse, and (2) the action could dissuade a reasonable employee from making or supporting a charge of discrimination.

The OFO then held that, under this standard, Perlinger had alleged sufficient facts to state a viable claim of unlawful retaliation. The OFO also rejected the agency’s argument that Perlinger did not have standing to file his own EEO complaint. In this respect, the OFO noted that the matters raised in Perlinger’s complaint were primarily focused on actions being taken against him as an employee-and not as an EEO representative-and, as such, he did have standing to file his own EEO complaint.