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.