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Lower performance rating not adverse employment action

Where a government employee based his discrimination and retaliation claims on the fact he received a lower performance rating, his claims were dismissed. A lower performance rating isn’t an adverse employment action.


On Jan. 13, 2022, Terry Steele, represented by counsel, filed a complaint alleging employment discrimination on the basis of age and a hostile work environment due to discrimination based on sex and acts of reprisal. One week later, plaintiff, proceeding pro se, filed a separate complaint in a new case alleging hostile discrimination and reprisal and violations of the Privacy Act of 1974 and material fraud. Defendant has filed a motion to dismiss both complaints. Plaintiff has also filed a motion for reconsideration of this court’s order consolidating the complaints.

Age discrimination

The parties agree that plaintiff’s age supports the allegation that he falls within a protected class. However, the complaint does not include any allegations that would plausibly suggest he was satisfactorily performing his professional responsibilities at the time of the alleged adverse employment actions.

Even if this court were to infer that plaintiff’s general reputation and performance on the job remained steady throughout the period in question, plaintiff also fails to allege that he was subjected to an adverse employment action. While plaintiff argues, without case law support, that a less than “outstanding” performance rating qualifies as adverse, this circuit has made clear that lower performance evaluations generally do not constitute adverse employment actions within the Title VII and ADEA contexts. Lastly, plaintiff—other than asserting in a conclusory fashion in his opposition—has not alleged in either complaint that other similarly situated employees outside his class were not subjected to the same treatment as was he.

Hostile work environment

Only harassment that occurs “because of” an individual’s protected status can be used to support a hostile work environment claim. Considering the relevant facts in the light most favorable to plaintiff, the allegations are conclusory and outright fail to link plaintiff’s sex or any other protected characteristic under Title VII to the alleged hostile treatment in his workplace.

Even if plaintiff could establish that the alleged hostile behavior in his workplace resulted from a protected characteristic, moreover, his allegations do not clear the “high bar” for alleging sufficiently severe or pervasive workplace harassment under Title VII. And assuming that plaintiff did establish the second and third prongs of the hostile work environment pleading standard, he still fails to demonstrate that such conduct is attributable to defendant.


While plaintiff alleges he engaged in a protected activity when he made a charge with the equal employment office of which his managers were allegedly aware, plaintiff has failed to demonstrate that defendant retaliated against him with an adverse employment action. At no point does plaintiff allege an “ultimate employment decision” resulted from his protected activity such as termination, suspension, reduced pay or some substantial impediment to his ability to perform his responsibilities. And even if plaintiff suffered a material adverse action, he has also failed to plausibly allege that any of these potential material adverse actions were causally related to the complaint he filed in 2017.

Remaining claims

Turning to the Privacy Act claim, while plaintiff alleges defendant improperly disclosed personal information related to his “finances, taxes, relationships, education, background, and personal travel” to others inside and outside of his agency, he provides no information suggesting that the disclosure emanated from a “system of records” maintained by defendant. Nor does he provide any factual basis for plausibly believing the disclosure was done willfully or intentionally.

And even though plaintiff has alleged an adverse effect on his work environment as a result of the alleged improper disclosure, plaintiff does not allege “actual damages” as required by the Privacy Act. Finally, to the extent plaintiff alleges criminal material fraud against defendant, such a claim is foreclosed because 18 U.S.C. § 1001 does not provide individuals with a private right of action.

Motion to dismiss granted. Motion for reconsideration denied as moot.

Steele v. Blinken, Case No. 1:22-cv-00035, Oct. 19, 2022. EDVA at Alexandria (Alston). VLW 022-3-473. 22 pp.

VLW 022-3-473

Virginia Lawyers Weekly