In EEO Complaints stemming from an employee’s lowered appraisal, government attorneys often try to argue that when an appraisal is lowered, but still satisfactory, there is no adverse action. The case of Maurya Green may have put a dent in that argument. Green v. National Science Foundation, EEOC No. 01A33221 (February 16, 2006).

In early 2002, Ms. Green received an annual appraisal. This year, a temporary supervisor lowered the overall rating recommended by her regular supervisor from “Very Good-High” to “Fully Satisfactory”. The Agency, in its FAD (Final Agency Decision) found that the lowering of the appraisal was not discriminatory.

Nearly four years later, on appeal to the Office of Federal Operations (OFO), the EEOC found that the Agency’s action was discriminatory. They found that even though the Agency articulated a legitimate non-discriminatory reason for lowering the federal employee’s appraisal, that reason was a pretext for discrimination.

The OFO found that when management had a meeting about “how to deal with the staffing shortage caused by [Complainant's] part-time status”, the meeting sounded suspiciously like a meeting to “deal with” the federal employee’s disability. They cited notes from this meeting – a rare “smoking gun” – that suggested that the managers had a meeting to discuss issues related to the complainant’s disability, including: “stoking the pot to get [complainant] to take [voluntary] disability.”

There does not appear to be any mention that the lowering of the appraisal from a very high rating to a lower, but still successful, rating is not an adverse action.

Two noteworthy points about this case. First, there was no ruling by an Administrative Judge – the federal employee appealed to OFO directly from the Final Agency Decision (FAD). Second, it took this federal employee nearly 5 years to get only a small part of the vindication she sought.