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.