Robert L. Ferriter, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency

Equal Employment Opportunity CommissionOct 14, 1999
01974314 (E.E.O.C. Oct. 14, 1999)

01974314

10-14-1999

Robert L. Ferriter, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency


Robert L. Ferriter, )

Appellant, )

) Appeal No. 01974314

v. ) Agency No. 6-08-099

)

Alexis M. Herman, )

Secretary, )

Department of Labor, )

Agency )

)

DECISION

INTRODUCTION

Appellant timely filed an appeal with the Equal Employment Opportunity

Commission (Commission) from a final agency decision concerning his

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.

Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,

as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly found no discrimination

based on reprisal (previous EEO complaints) when appellant received a

rating of Highly Effective on his performance appraisal for the period

October 23, 1993, through September 30, 1994.

BACKGROUND

Appellant is a GM-14 Supervisory Mining Engineer with the agency's

Mine Safety Health Administration, Ground Support Division (Division).

He filed a previous complaint of discrimination based on age in March

1993, when he was not selected for the position of Division Chief.

The Selectee became appellant's supervisor (the Supervisor) and

rated appellant Highly Effective on appellant's October 15, 1992,

through September 1993 performance appraisal. Appellant filed another

discrimination complaint arguing that the rating was in retaliation for

his prior complaints. The Supervisor rated appellant Highly Effective

on the October 93, through September 1994, appraisal. Appellant then

filed the current complaint based on reprisal.

In his formal complaint, appellant stated that he deserved an Outstanding

rating and that his Supervisor did not give him that rating because of

his two prior complaints. He argued that he met all of the criteria

in the critical elements Managing Human Resources and Communications,

for which he was rated Meets. He stated that he accomplished work in

a timely manner, completed all work requests and received commendatory

remarks from requesters, thus indicating that he was a manager managing

his human resources in an exceptional manner,

Appellant stated that his communication abilities have been applauded

by previous supervisors and mentioned as a strong attribute in previous

appraisals by the Supervisor. He stated that his communication skills

increased during this appraisal period as demonstrated by his actions

as chief technical investigator during a ten month investigation into

a major mine disaster. He stated that he maintained and coordinated

close communications with the Administrator for Metal and Nonmetal, the

Director for Technical Support, the Solicitor's Office, the investigative

team, the District Manager, the mining company, his staff and outside

consulting engineers and testing laboratories. He said this was in

addition to supervising routine Division work which included reviewing

reports and maintaining communications with customers.

Appellant provided comments to his performance appraisal in which

he disagreed with the Meets ratings on Managing Human Resources and

Communications. He stated that managing human resources was key to

managing the organization which was rated Exceeds. He reasoned that it

was not possible to manage human resources at a lower level. He said the

Division produced high quality work during the mine disaster and also

functioned at double the work output produced during its benchmark year,

1991. Appellant argued that the number of reports, letters, consultant

contracts, top level briefings and draft press releases he wrote must

have been considered in rating him Exceeds on Managing the Organization,

yet he received only Meets on the Communication element. He believes the

Supervisor's failure to recognize and accurately evaluate his documented

performance constitutes retaliation for his EEO participation.

Appellant stated in a memorandum to the EEO Counselor that as Chief

Technical Investigator for the team investigating the mine disaster he

supervised the team's efforts in gathering data, testing materials and

analyzing forensic evidence. He wrote a comprehensive, detailed technical

report which explained the cause and conditions leading to the accident.

The report, with his documentation and analyses, was reviewed by senior

agency officials including the Assistant Secretary and was also used by

the U.S. Attorney's Office in a Grand Jury investigation seeking criminal

indictments of mine officials. Appellant stated that he believed his work

on this project was a noteworthy accomplishment justifying an Outstanding

rating. Appellant stated that in addition to the mine disaster effort,

the regular Division work load was heavier than at any time in Division

history, and he served all customers in an exemplary manner.

An agency bulletin reveals that several of the investigative team

members received an agency award for their work on the mine disaster

investigation. Appellant states that he was the only principal member of

the investigative team to not receive such an award. He believes he did

not receive recognition for his work because of his prior EEO activity.

In a memorandum to the EEO Counselor, the Supervisor denied that

appellant's prior EEO activity influenced his rating of him. He stated

that only appellant and one other manager received Highly Effective

ratings<1> while two other managers received Fully Effective ratings.<2>

Appellant and the second manager each received equal bonus awards.

The Supervisor said that because appellant's base salary is lower than the

other manager, appellant received a higher percentage award. He therefore

concluded that appellant was treated fairly and equal to his peers.

In his affidavit, the Supervisor stated that the work used to justify

the Exceeds ratings for elements (1) and (4) cannot be used to justify

Exceeds for the whole performance plan. He said each element must be

rated for the entire rating period on its separate standards, not on a

single event or issue that occurred during the rating period.

The Supervisor said appellant met the standard set in the comments to

elements (2) and (3) including assigning work to staff commensurate

with abilities and job requirements; reviewing work in a timely manner;

appraising staff timely and fairly; recognizing special performance

achievements;<3> selecting, developing and utilizing staff in a manner

to ensure timely accomplishment of objectives; and facilitating sound

labor-management relations.

The Supervisor stated that since the time when appellant first

participated in the EEO process he received three Highly Effective ratings

and one Fully Successful rating issued by him. During the four years

prior to appellant's EEO participation he received one Highly Effective

rating and three Fully Successful ratings issued by a former supervisor.

He added that none of the employees under his supervision who participated

in the mine disaster investigation received more credit in their 1994

appraisals than appellant.

In its final decision, the agency found that appellant failed to

demonstrate that the agency's action gave rise to an inference of

reprisal. The agency found that appellant's supervisor articulated

legitimate, nondiscriminatory reasons for his rating and that appellant

failed to demonstrate that his supervisor's assessment of his performance

was a pretext for discrimination.

On appeal, appellant questions why the agency recognized all investigative

team members except appellant and his staff.

The agency replied that the Supervisor articulated legitimate,

non-discriminatory reasons for the rating. The agency reiterated that

the justification used to rate a specific critical element as having been

exceeded cannot be used to justify an exceeds rating on another critical

element. Appellant's Exceeds rating for managing the organization and

administering the program providing technical assistance cannot be used

on the other elements.

ANALYSIS AND FINDINGS

Appellant's complaint presents the issue of whether the agency subjected

him to disparate treatment on the basis of his prior protected activity.

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides an

analytical framework for proving employment discrimination in cases in

which disparate treatment is alleged. First, appellant must establish a

prima facie case by presenting enough evidence to raise an inference of

discrimination. McDonnell Douglas, supra, at 802. The agency may rebut

appellant's prima facie case by articulating legitimate, nondiscriminatory

reasons for its action, and if the agency does so, appellant must show,

by a preponderance of the evidence, that the agency's reasons are a

pretext for discrimination. Id.

In order to establish a prima facie case of discrimination for an

allegation of reprisal, appellant must show: 1) that he engaged in

protected activity, e.g., participated in a Title VII proceeding; 2)

that the alleged discriminating official was aware of the protected

activity; 3) that he was disadvantaged by an action of the agency

contemporaneously with or subsequent to such participation; and 4)

that there is a causal connection between the protected activity and

the adverse employment action. Hochstadt v. Worcester Foundation for

Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,

545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d

80, 86 (D.C. Cir. 1985); Burrus v. United telephone Co. of Kansas, Inc.,

683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).

Appellant engaged in protected activity when he filed a complaint of

discrimination based on age in March 1993, when he was not selected

for Division Chief, and again in October 1993, based on reprisal when

he received an appraisal rating of Fully Successful from the Selectee

(Supervisor). The Supervisor was aware of his activity, and the ensuing

EEO investigation, final agency decision and appeal overlap with the date

on which appellant filed the complaint at issue here. Thus, appellant

establishes a prima facie case because there is a causal connection based

on closeness in time between the alleged adverse action and appellant's

protected activity.

We next examine whether the agency articulated legitimate,

nondiscriminatory reasons for its action and find that the agency has

done so. The Supervisor explained that the work performed by appellant

to warrant an Exceeds rating on elements (1) and (4) cannot be used to

exceed the criteria set in elements (2) and (3). The Supervisor stated

that appellant met the criteria for those elements by timely completing

all work assignments and effectively managing a staff of seven.

The ultimate stage of the analysis is whether the appellant has proven

by a preponderance of evidence that the agency's explanations were a

pretext for actions motivated by prohibited discriminatory animus. See

United States Postal Service Board of Governors v. Aikens, 460 U.S. 711

(1983). We find that appellant failed to show that the stated reasons

were a pretext for discrimination based on reprisal.

We find that the Supervisor's stated reasons supporting his assessment

of appellant are credible, because they are detailed and balanced.

The Supervisor stated he rated appellant as Fully Meets on the elements

Managing Human Resources and Communications because he believed appellant

met the criteria. He said appellant timely completed all communication

assignments, timely assigned work commensurate with his staff members'

abilities, and timely completed all staff appraisals. He stated that

appellant's work on the mine disaster was credited toward the Exceeds

rating on elements (1) and (4).

The record indicates that the Supervisor recognized the areas where

appellant excelled. He noted appellant's excellence in responding to

requests for technical assistance, professional manner and excellent

support to the Solicitor's Office. He noted the highly complex field

investigations including the mine disaster and rated him accordingly on

those elements. Finally, the Supervisor does not appear to have treated

appellant less favorably than other employees. He rated appellant and

another manager as Highly Effective whereas two other managers, with

staffs larger than that of appellant, received Fully Meets.

Therefore, after a careful review of the record, we find the decision

of the agency is proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

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 (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) 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 (20) 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 (S0993)

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. 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 (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

October 14, 1999

________________________ _______________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations1 Appellant and his staff were the

only employees under the Supervisor who were involved in the

Magma Mine disaster investigation.

2 The Supervisor stated that appellant managed seven employees while

the other GM-14 managers managed 40, 23 and 10 employees.

3 The Supervisor noted here that five members of appellant's staff

participated in the mine disaster investigation and in preparation of

the report. None of these staff members were nominated by appellant

for special performance achievements or for special recognition.

These employees received recognition in their performance ratings and

performance bonuses, as did appellant. The appraisals were conducted

and submitted in a manner that met the standard.