Michael A. Fair, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01986341 (E.E.O.C. Apr. 24, 2000)

01986341

04-24-2000

Michael A. Fair, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael A. Fair v. United States Postal Service

01986341

April 24, 2000

Michael A. Fair, )

Complainant, )

) Appeal No. 01986341

v. ) Agency No. 1K-201-0111-97

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

)

DECISION

INTRODUCTION

Michael A. Fair (complainant) timely filed an appeal on August 19,

1998, with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD), received by complainant on July 22,

1998, concerning a complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The Commission

hereby accepts the appeal in accordance with 64 Fed. Reg. 37,644, 37,659

(1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

Whether the agency correctly determined that complainant was not

discriminated against on the bases of color (Black), sex (male), and age

(47+) when, on or about November 7, 1996, he received an unacceptable

merit rating which was used as a basis for denying him an EVA (Economic

Value Added) bonus.

BACKGROUND

Complainant was employed by the agency as a Supervisor, District

Operations. He filed a formal complaint on July 28, 1997, alleging

discrimination on the bases of color (Black), sex (male), and age

(47+) when, on or about November 7, 1996, he received an unacceptable

merit rating which was used as a basis for denying him an EVA bonus.

By certified mail dated June 4, 1998, complainant was sent a copy

of the investigative file and notified of the opportunity to request

either a hearing before an EEOC Administrative Judge or a final agency

decision without a hearing. Complainant did not respond. The agency,

therefore, issued its FAD finding no discrimination. The agency based

its decision, in part, on the fact that complainant did not point to

similarly situated employees of a different race than complainant and

under 40 years of age.<2> The agency also said that complainant did

not present a similarly situtated employee of a different gender when,

in fact, he did. This appeal followed.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis

first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973). For complainant to prevail, he must first establish a prima

facie case of discrimination 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.

McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978). The burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency

has met its burden, the complainant bears the ultimate responsibility

to persuade the fact finder by a preponderance of the evidence that

the agency acted on the basis of a prohibited reason. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which

the first step normally consists of determining the existence of

a prima facie case, need not be followed in all cases. Where the

agency has articulated a legitimate, nondiscriminatory reason for the

personnel action at issue, the factual inquiry can proceed directly to

the third step of the McDonnell Douglas analysis, the ultimate issue of

whether complainant has shown by a preponderance of the evidence that

the agency's actions were motivated by discrimination. U.S. Postal

Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);

Hernandez v. Department of Transportation, EEOC Request No. 05900159

(June 28, 1990); Peterson v. Department of Health and Human Services,

EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of

the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In response to complainant's claim that he received an unacceptable

merit rating, we find that the agency has articulated legitimate,

nondiscriminatory reasons for its action, namely that the rating was

warranted. The agency asserts that complainant was rated unacceptable

based on his overall work performance. According to the testimony

of complainant's supervisor, S-1, several discussions were held

with complainant concerning his work performance and leadership

abilities. Complainant repeatedly came to work late with no noted

improvement. Complainant's claimed work accomplishments did not coincide

with his actual accomplishments.

Since the agency articulated such reasons, the burden returns to

complainant to demonstrate that the agency's articulated reason was

a pretext for discrimination. We find that complainant has failed to

do so. Complainant claims that other supervisors did not meet their

goals and were not in regular attendance, but received acceptable

merit ratings. In response, S-1 argues that the other supervisors,

cited by complainant, received acceptable merit ratings because they did,

in fact, meet their goals. Complainant further claims that S-1 failed to

obtain input from complainant's other supervisors, which was important to

complainant's merit rating since he only worked for S-1 two to three days

of any service week. In response, S-1 stated that although complainant

works under other supervisors, S-1 is complainant's manager, so it is,

therefore, appropriate for him to prepare complainant's merit rating.

Complainant also believes that S-1 used "this process of evaluation to

personally attack complainant and destroy his reputation," and that he

did not receive an EVA bonus because of his merit rating. In response,

S-1 testified that whether complainant received his EVA bonus had nothing

to do with his merit rating, and that he did not even make the final

decision about who receives an EVA bonus. We find that complainant's

bare assertions, with no other evidence to support them, are not enough

to show pretext. Additionally, the record contains no other evidence of

pretext. Therefore, the agency's determination that complainant failed

to establish that he was discriminated against is supported by the record.

CONCLUSION

Accordingly, the decision of the agency was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

04-24-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 However, we find that the agency erred in concluding that complainant

had not established a prima facie case of discrimination based on race

and age merely because he did not identify similarly situated non-Black

co-workers, under the age of 40, who were treated in a more favorable

manner by his supervisor. To establish a prima facie case, complainant

need only present evidence which, if unrebutted, would support an

inference that his supervisor's actions resulted from discrimination

based on race and age. Furnco Construction Co. v. Waters, 438 U.S. 567,

576 (1978). It is not necessary for him to show that a comparative

individual, from outside of his protected group, was treated differently.

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996);

Enforcement Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC

Notice No. 915.002, n.4 (September 18, 1996); Carson v. Bethlehem Steel

Corp., 82 F.3d 157, 159 (7th Cir. 1996). Since the agency's finding

of no discrimination with respect to the bases of race and age was not

based solely on complainant's inability to establish a prima facie case,

we find that the agency's error was harmless.