01975008
09-16-1999
Richard Brooks, Appellant, v. Lawrence Summers, Secretary, Department of the Treasury (Bureau of Alcohol, Tobacco and Firearms), Agency.
Richard Brooks, )
Appellant, )
) Appeal No. 01975008
v. ) Agency No. 95-2230
)
Lawrence Summers, )
Secretary, )
Department of the Treasury )
(Bureau of Alcohol, )
Tobacco and Firearms), )
Agency. )
)
DECISION
INTRODUCTION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on
the bases of race (American Indian), sex (male), reprisal (prior EEO
activity), and age (date of birth 11-1-40), 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. Appellant alleges he was discriminated against when:
(1) he was transferred to the agency's West Palm Beach Field office in
February 1995; (2) he received an unfavorable performance appraisal in
February 1995; (3) he failed to receive a $750 award and a $500 award
which he was promised in March 1995; and 4) his request for restoration
of �use or lose� annual leave was denied. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED in PART and REVERSED in PART.
BACKGROUND
The record reveals that appellant began his employment with the agency
in 1968. During the relevant time period, appellant was employed as a
Special Agent at the agency's headquarters in Washington, D.C. and at
it offices in Fort Lauderdale and West Palm Beach, Florida. In 1993,
Appellant was nearing the end of a two-year assignment in Washington.
Anticipating retirement within the following several years, he requested
transfer to the agency's U.S. Virgin Islands office or to either of
two agency offices in cities on the Gulf Coast of Florida. He believed
that any of these areas would be an affordable location within which he
could purchase a home in which he and his wife ultimately could retire.
The agency informed appellant that none of his preferred assignments were
available. Instead, the agency encouraged him to apply for a transfer to
the agency's Fort Lauderdale office. Appellant did so and his application
was granted. He began work in the Fort Lauderdale office on January 10,
1994. He was assigned to work with an �elite� task force investigating
a series of �home invasion� crimes that had occurred in the area.
In April 1994, appellant applied for a �hardship� transfer to the agency's
Fort Myers office on the Gulf Coast of Florida. In the application,
appellant explained that he and his wife were unhappy with life on the
Atlantic Coast of Florida because of the high cost of real estate and
the perceived lack of personal safety in the area. The agency denied
the hardship transfer request.
Appellant made no further requests for transfer. He acquired a home
in Indiantown, Florida, approximately 60 miles north of Fort Lauderdale
from which he commuted daily.
In 1993 and 1994, appellant submitted to the agency more than 20 merit
promotion applications. In each case, his application was rejected.
In September, 1994, after having received several of these rejections,
appellant wrote to the agency's �ombudsman� alleging that his job
applications were being rejected because of age discrimination on the
part of the agency.
On January 25, 1995, shortly after the conclusion of an intensive
criminal investigation in which appellant had been involved, appellant
learned that he was to be involuntarily transferred to the agency's
West Palm Beach office. Appellant was replaced in the Fort Lauderdale
office by a Caucasian woman, younger than himself. Unlike appellant,
his replacement had consented to the transfer.
In February, 1995 appellant's immediate supervisor in the Fort Lauderdale
office submitted a performance appraisal of appellant's work during the
preceding one-year period. The ratings were lower than appellant had
received in previous years.
In 1991 and 1994, appellant had been recommended for cash awards in
recognition of his superior job performance. Appellant received neither
of the awards for which he had been recommended.
Believing himself to be a victim of discrimination, appellant sought
EEO counseling and, subsequently, filed a complaint on April 30, 1995.
At the conclusion of the investigation, appellant requested that the
agency issue a final agency decision.
The FAD concluded that, with respect to the transfer to West Palm Beach,
appellant failed to establish a prima facie case of retaliation because
there was no evidence of his having previously engaged in protected
activity. The agency did find that appellant had made out a prima facie
case of discrimination based on race, sex, and age when he demonstrated
that a similarly situated employee not in his protected classes was
treated differently than he under similar circumstances. However, the
FAD found that the agency had articulated legitimate, nondiscriminatory
reasons for its actions which appellant had been unable to show to be
pretexts for discrimination.
The FAD concluded that, with respect to the performance appraisal and
one of the disputed awards, appellant failed to establish a prima facie
case of discrimination based on race, sex, age and retaliation because
he presented no evidence that similarly situated individuals not in his
protected classes were treated differently under similar circumstances.
With respect to the remaining disputed award, the FAD found that appellant
had not been discriminated against because there was no evidence that
the agency delayed the processing of the award.
The FAD also dismissed as moot appellant's claim that he had improperly
been denied reinstatment of leave. <1>
From the FAD, appellant brings the instant appeal.
ANALYSIS AND FINDINGS
After a careful review of the record, based on McDonnell Douglas
v. Green, 411 U.S. 792 (1973), and its progeny, Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253-56 (1981); St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993), and Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545
F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to retaliation
cases), the Commission finds that, with the respect to the claims
involving appellant's transfer to West Palm Beach and his performance
appraisal, appellant has borne his burden of proving by a preponderance
of the evidence that the agency's articulated reasons for its actions
were pretexts for discrimination. With respect to the remaining issues
we conclude that appellant has been unable to meet that burden.
I. TRANSFER TO WEST PALM BEACH
A. Retaliation
1. Prima Facie Case
To establish a prima facie case of retaliation discrimination, appellant
must show that (a) he engaged in prior protected activity; (b) the
acting agency officials were aware of his prior protected activity; (c)
he was subsequently disadvantaged by an adverse action; and (d) there
is a causal link between the protected activity and the adverse action.
Hochstadt v. Worcester Foundation for Experimental Biology. Inc., supra;
Manoharan v. Columbia University College of Physicians and Surgeons,
842 F.2d 590, 593 (2d Cir. 1988). The causal connection may be shown by
evidence that the adverse action followed the protected activity within
such a period of time and in such a manner that a reprisal motive is
inferred. Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2nd Cir. 1980).
In the instant case appellant has made a sufficient showing to establish
a prima facie case.
a. Prior Protected Activity
Four months prior to his involuntary transfer to West Palm Beach,
appellant had engaged in protected EEO activity when he complained, in
a letter dated September 26, 1994, to the agency's ombudsman concerning
his failure to be selected for any of more than 20 positions for which
he had applied within the agency. Appellant attributed his failure to
be selected to age discrimination and suggested that he would file an
EEO complaint if the ombudsman could not resolve the matter.
b. Awareness of Agency Officials
The record supports a finding that the relevant agency officials were
aware of appellant's prior EEO activities at the time they decided to
transfer him to West Palm Beach. In the course of the investigation,
each of the three officials involved was asked by the investigator to
respond to written questions, including a specific question about the
official's awareness of appellant's prior EEO activity.<2> All three
officials responded in writing, however, only one directly answered the
question concerning appellant's EEO activities. The official who did
answer admitted knowing about appellant's EEO activity stating, �I am
aware that [appellant] had made a complaint through the EEO process.�
The other two officials simply ignored the question in their typewritten
responses to the investigator.
We take the silence of these latter two officials as tacit admissions
that they were aware of appellant's protected activity at the time they
made the decision to transfer appellant. The law has long recognized
that a person's failure to respond under circumstances naturally calling
for a response may be taken as an admission that a truthful response
would be unfavorable to the person's position. See, e. g., McCormick on
Evidence � 262, (John William Strong, ed., 4th ed. 1992); 4 J. Wigmore,
Evidence �� 1071 - 1073 (J. Chadbourn rev. 1970).
c. Disadvantaged by an Adverse Action
The involuntary transfer to which appellant was subjected resulted in his
reassignment away from the elite task force to which he had been assigned.
The agency does not dispute that this constitutes an adverse action.
d. Causal Link Between the Protected Activity and Adverse Action
The four month interval between appellant's letter to the ombudsman
and the agency's decision to transfer appellant to West Palm Beach is
sufficiently short to permit the inference to be drawn that the agency
action was undertaken in response to appellant's protected activity.
See, e.g., Shapiro v. Social Security Administration, EEOC Request
No. 05960403 (December 6, 1996).
2. Agency's Explanation for its Actions
The agency gives two explanations for its actions. First it states that
the transfer of appellant to West Palm Beach was done in response to
appellant's request for a transfer away from Fort Lauderdale. Second,
it contends that the transfer was undertaken as an accommodation to
appellant so that the length of his daily commute to work would be
lessened. These explanations, if true, would constitute legitimate,
nondiscriminatory reasons for the agency's actions.
3. Pretext
After a careful review of the record, we conclude that appellant has
proven, by a preponderance of the evidence that the agency's explanations
for its actions are pretexts designed to conceal discrimination.
Record evidence, including particularly the lengthy and highly detailed
explanation appellant submitted in connection with his hardship transfer
application, shows that the agency's position and the testimony of
agency officials on this point is not worthy of belief. In his transfer
request, appellant made it clear beyond peradventure that he wanted to be
transferred away from the Atlantic Coast of Florida, not simply away from
Fort Lauderdale. He expressed his desire to escape from what he regarded
as the high crime and inflated real estate prices of the Atlantic Coast
of Florida which were a cause of great emotional distress to his wife.
A transfer from Fort Lauderdale to West Palm Beach, a few miles up the
Atlantic Coast<3> did nothing to accomplish that goal.
The agency's alternative explanation for its actions, i.e., that
appellant was transferred in order to reduce the length of his drive to
work finds no support in the record. Nowhere is there any indication
that appellant requested or desired any action on the part of the agency
to reduce his commuting distance. The agency made no effort to inquire
of appellant whether he would benefit from a reduction in his commuting
distance or to determine whether he had any plans to move his residence
nearer to Fort Lauderdale. The agency would have us believe that the
transfer was simply a spontaneous act of official beneficence. Under the
circumstances of this case, we are persuaded that this was not the case.
We conclude that the agency's explanation for its actions was a pretext
designed to conceal its intentionally discriminatory actions.
B. Disparate Treatment
The agency concedes that appellant established a prima facie case that
he had been discriminated against on the basis of race, age and sex when
the agency transferred him against his will from its Fort Lauderdale
office to its West Palm Beach office. It does so because the record
establishes that appellant was replaced in Fort Lauderdale �by a younger
female not of [his] race.� However, the agency seeks to justify this
action on the ground that the agency transferred appellant in order to
accommodate appellant's earlier request for a transfer away from Fort
Lauderdale and to reduce the length of appellant's daily commute to work.
For the reasons discussed, supra, we conclude that the agency's
explanation for its actions is unworthy of belief and was a pretext
designed to conceal its intentionally discriminatory actions.
II. PERFORMANCE APPRAISAL
Appellant alleges that he was discriminated against when, on February 22,
1995, he received a performance appraisal that was lower than previous
ratings he had received. We conclude that appellant has proven by a
preponderance of the evidence that he was given this rating in retaliation
for his prior EEO activity.
A. Retaliation
For the reasons discussed in more detail, supra, in connection with
appellant's transfer to West Palm Beach we find that appellant has made
out a prima facie case of retaliation. The record shows that (a) he
engaged in prior protected activity when he complained to the agency
ombudsman about age discrimination; (b) the acting agency official
was aware of appellant's prior protected activity as evidenced by the
official's conspicuous failure to respond to a question concerning
that matter; (c) he was subsequently disadvantaged by an adverse action
in the form of an unfavorable performance appraisal; and (d) there is
a causal link between the protected activity and the adverse action in
that the adverse action took place within slightly more than four months
of appellant's contact with the ombudsman.
The agency's explanation for its action is simply to aver that
the subjective evaluation of appellant's performance was correct.
The evidence indicates, however, that in August 1994, one month prior
to appellant's contact with the ombudsman, the supervisor who wrote
appellant's performance appraisal in February 1995, had also signed
an evaluation praising appellant's abilities and mentioning none of
the criticisms made in the February 1995 appraisal. In addition,
the record shows that in September 1994, appellant was recommended by
his team leader for a $750 �special act award� in recognition of his
professionalism and in March 1995, a Florida state prosecutor who had
been involved in the investigation conducted by appellant's task force
wrote to the agency to commend appellant for his diligence in November
and December 1994 in pursuing the investigation. These circumstances
lead us to the conclusion that appellant's performance did not decline
during the relevant rating period and that the appraisal appellant
received was the result of retaliation on the part of the agency.
B. Disparate Treatment
We agree with the agency's conclusion that appellant did not establish
a prima facie case of discrimination on the basis of race or age with
respect to his performance appraisal in that he did not identify any
similarly situated individuals, outside his protected classes, who
received more favorable treatment nor did he provide other evidence from
which an inference of discrimination could be drawn.
III. AWARDS
We find that appellant was not discriminated against with respect to
either of the two awards for which he had been recommended. The record
indicates that appellant was recommended for two monetary awards,
one in 1991 for $500 and the second in 1994 for $750 but that, for
budgetary reasons, the awards were never made. This is a legitimate,
nondiscriminatory reason for the agency's actions. Appellant has failed
to prove it to be a pretext designed to conceal discrimination.<4>
IV. COMPENSATORY DAMAGES
In his complaint, appellant seeks an award of compensatory damages.
However, in the course of the investigation the agency developed no
information concerning the nature and extent of damages appellant might
have suffered. On remand, the agency shall investigate the question of
damages in accordance with the order below.
CONCLUSION
Therefore, after a careful review of the record, including appellant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we REVERSE those portions of
the FAD relating to the transfer to West Palm Beach and the performance
appraisal. We affirm the balance of the FAD.
ORDER
The agency is ORDERED to take the following remedial action:
1. The agency shall retroactively increase the �overall� rating on
appellant's February 15, 1995 annual performance evaluation to �Exceeds
Fully Successful.� Appellant shall also be awarded any appropriate
cash or performance award(s) that would have accompanied that rating,
pursuant to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days
after the date this decision becomes final.
2. Should appellant so elect, the agency shall transfer appellant to
its Fort Lauderdale office and assign him duties comparable to those to
which he was assigned during his previous tenure in Fort Lauderdale.
3. The agency shall conduct a supplemental investigation on the issue
of appellant's entitlement to compensatory damages and shall afford
appellant an opportunity to establish a causal relationship between the
incidents of discrimination (i.e. the transfer to West Palm Beach and
the 1994-1995 performance appraisal) and any pecuniary or non-pecuniary
losses. See Cobey Turner v. Department of the Interior, EEOC Appeal
Nos. 01956390 and 01960518 (April 27, 1998). Appellant shall cooperate
in the agency's efforts to compute the amount of compensatory damages,
and shall provide all relevant information requested by the agency.
The agency shall issue a final decision on the issue of compensatory
damages. 29 C.F.R. � 1614.110. The supplemental investigation and
issuance of the final decision shall be completed within ninety (90)
calendar days of the date this decision becomes final. A copy of the final
decision must be submitted to the Compliance Officer, as referenced below.
4. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision.�
POSTING ORDER (G1092)
The agency is ORDERED to post copies of the attached notice at its
facility in Fort Lauderdale, Florida. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington,
D.C. 20036. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant has the right to
file a civil action on the underlying complaint in accordance with the
paragraph below entitled �Right to File A Civil Action.� 29 C.F.R. ��
1614.408 and 1614.409. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42
U.S.C. � 2000e-16(c) (Supp. V 1993). If the appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.10.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the agency.
The attorney shall submit a verified statement of fees to the agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (3O) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (2O) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (2O) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
9/16/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The FAD also purports to dismiss for failure to state a claim
allegations in an affidavit signed by appellant regarding the processing
of a grievance he filed concerning his 1995 performance appraisal.
From our reading of the record, appellant has made no such claim.
Accordingly, we will not further address this issue.
2To two of the officials the investigator posed the following question:
�Were you aware of [appellant's] involvement in the EEO complaints
process?� The investigator posed the following question to the third
official: �Do you know . . . that [appellant] was previously involved
in the EEO complaints process?�
3We take administrative notice of the geographic location of the cities
in question.
4We need not address the issue of the agency's denial of appellant's
request for restoration of �use or lose� annual leave. Appellant
indicates in his statement on appeal that his request for restoration
has been granted. The issue is therefore moot.