01A14725
11-14-2002
Harold Bare, Complainant, v. Mel R. Martinez, Secretary, Department of Housing and Urban Development, Agency.
Harold Bare v. Department of Housing and Urban Development
01A14725
November 14, 2002
.
Harold Bare,
Complainant,
v.
Mel R. Martinez,
Secretary,
Department of Housing and Urban Development,
Agency.
Appeal No. 01A14725
Agency No. AT 00 02
DECISION
Complainant timely initiated this appeal from the final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. At all times relevant to the agency actions
at issue, complainant was employed as an Auditor, GS-0511-12, in the
agency's Area Office in Knoxville, Tennessee. Complainant alleged in his
complaint that he had been subjected to retaliation for having previously
engaged in protected equal employment opportunity (EEO) activity when:
(1) the Assistant District Inspector General for Audit (ADIGA) rated him
�marginally successful� on an end-of-job evaluation of his performance
regarding a particular audit, and (2) on September 21, 1999, ADIGA placed
him on a Performance Improvement Plan (PIP). Complainant also claimed
that as a result of the agency actions complained of in claims (1) and
(2), he was ineligible for a promotion to the GS-13 level. Complainant
further claimed that he had been subjected to retaliation for having
previously engaged in protected EEO activity when (3) on March 30, 2000,
he discovered that he had been rated �fully successful� on his performance
rating for the rating period of February 1, 1999 to January 31, 2000.
At the conclusion of the agency's investigation into the complaint, the
agency issued its FAD, finding that complainant had not been subjected to
retaliation as claimed.<1> The agency found that complainant had failed
to establish a prima facie case of retaliation as to claims (1) and (2),
as the evidence did not show that either ADIGA or the Senior Auditor (SA)
assigned to complainant's audit (who complainant blamed for causing the
performance problems he suffered in relation to the audit and which led
to his receiving a �marginally successful� rating regarding the audit)
were aware of his prior EEO activity at the time they engaged in the
complained-of actions. The agency did find, however, that complainant
had established a prima facie case as to claim (3), as the Reviewing
Official (RO) responsible for his performance appraisal acknowledged
that at the time he conducted the subject appraisal he was aware of
complainant's prior EEO activity, and that complainant otherwise satisfied
the requirements for establishing a prima facie case of retaliation.
The agency then proceeded to examine its articulated reasons for the
contested actions, assuming for the sake of argument that complainant
had established a prima facie case as to all three of his claims.
As for claims (1) and (2), the agency found that it had articulated
legitimate, nondiscriminatory reasons for its actions, noting that ADIGA
had testified via affidavit that he rated complainant's performance as
�marginally successful� and subsequently placed him on a PIP because
complainant's performance on the audit project had been below the level
expected of a GS-12 Auditor, and that department guidelines mandate that
management place employees whose performance has been rated as marginal,
as had complainant's, on a PIP. The agency also found that one of the
responsible management officials had stated that promotions of the type
which complainant had sought were not available to employees who receive
performance ratings of �marginally successful.� The agency further found
that it had articulated a legitimate, nondiscriminatory reason for the
actions complained of in claim (3), as RO had testified that his rating
of complainant was based upon complainant's job performance during the
relevant period.
The agency also found that complainant failed to prove that the agency's
articulated reasons were merely pretext for unlawful discrimination,
finding that complainant had failed to provide evidence that his
performance had been evaluated based upon his prior EEO activity.
The agency noted that complainant had argued that the problems he
encountered on the audit were due to interference by SA, and that two
other employees had identified similar problems with working under SA,
such as SA's tendency to make unpredictable changes which interfered with
their ability to complete their duties. However, the agency found that
there was no indication that SA's activities were based upon a retaliatory
motive, and, to the contrary, that the other employees who had identified
similar problems with SA's management style did not have any history of
prior EEO activity. As for claim (3), the agency noted that complainant
had been rated �fully successful� during the two previous review periods
by someone other than RO, and that the fact that he was rated �fully
successful� both before and after he engaged in protected EEO activity
did not support his claim that his latest rating was retaliatory.
This appeal followed.
After a thorough examination of the evidence on appeal, it is the decision
of the Commission to affirm the agency's finding that complainant has
failed to establish that he was subjected to retaliation as claimed.
In claims such as those presented by complainant, which allege retaliation
for participation in the EEO process, and where there is an absence
of direct evidence of such retaliation, the allocation of burdens and
order of presentation of proof is a three-step process. Hochstadt
v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass. 1976) (extending application of the disparate treatment
analytical framework described in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973), to claims of retaliation), aff'd, 545
F.2d 222 (1st Cir. 1976). First, complainant must establish a prima
facie case of retaliation by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that
a prohibited consideration was a factor in the adverse employment
action. Kimble v. Department of the Navy, EEOC Appeal No. 01983020
(Aug. 22, 2001). Complainant may satisfy this burden by showing that:
(1) he engaged in a protected activity; (2) the agency was aware of
his protected activity; (3) subsequently, he was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (Sept. 26, 2000). Next, the agency
must articulate a legitimate, nondiscriminatory reason for its actions.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If the agency is successful in meeting its burden, complainant must
prove, by a preponderance of the evidence, that the legitimate reason
proffered by the agency was a pretext for discrimination. Id. at 256.
However, the ultimate burden of persuading the trier of fact that the
agency intentionally discriminated against complainant remains at all
times with complainant. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000).
The record shows that the agency correctly found that complainant failed
to establish a prima facie case as to claims (1) and (2), as there is no
indication in the record that at the relevant time ADIGA or SA had any
knowledge of complainant's prior EEO activity. The record also supports
the agency's finding that, even assuming for the sake of this appeal that
complainant established a prima facie case for all three of his claims,
it articulated legitimate, nondiscriminatory reasons for its actions
which complainant failed to prove were merely pretext for unlawful
discrimination. While the record indicates that S1's management style
may have caused complainant, as well as other employees, to experience
difficulty in satisfactorily completing audits, there is no indication
that S1's management style�which the evidence shows he imposed evenly
upon employees regardless of their prior EEO activity�was the result of
a retaliatory motive. Nor does the record contain any other evidence
which would indicate that the agency's actions were retaliatory in nature.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, it is the decision of the
Commission to AFFIRM the agency's FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(�Right to File A Civil Action�).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 14, 2002
Date
1 The record does not indicate whether complainant requested a
FAD, or if he failed to respond within the time period specified in
29 C.F.R. � 1614.108(f) to the agency's notification of his right to
request a hearing before an EEOC Administrative Judge or, alternatively,
to receive a final decision by the agency.