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

Equal Employment Opportunity CommissionOct 14, 1999
01974299 (E.E.O.C. Oct. 14, 1999)

01974299

10-14-1999

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


Robert L. Ferriter v. Department of Labor

01974299

October 14, 1999

Robert L. Ferriter, )

Appellant, )

) Appeal No. 01974299

v. ) Agency No. 4-08-059

)

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 complaint) when appellant received a

rating of "Highly Effective" on his performance appraisal for the period

October 15, 1992, through September 30, 1993.

BACKGROUND

Appellant is a Supervisory Mining Engineer with the agency's Mine Safety

Health Administration, Ground Support Division (Division). He filed a

complaint of discrimination based on age in District Court when he was

not selected for the position of Division Chief.<1> The Selectee became

appellant's supervisor (the Supervisor). The Supervisor rated appellant

Highly Effective on his September 1993 performance appraisal.

In his formal complaint, appellant alleged that his work output for FY

93 far exceeded that of FY 91 and 92, and thus deserved an Outstanding

rating. He believed his Supervisor did not rate him as deserved because

appellant's prior complaint involved the Supervisor.

The performance appraisal contained four critical and one non-critical

elements. Appellant was rated Exceeds on Elements 1: Field Investigation;

and 2: Technical Assistance; and Meets on Elements 3: Planning and

Managing the Work of the Organization; 4: Personnel Management; and 5:

Utilization of Technical Expertise to Direct Subordinates, Higher-level

Management and to Outside Sources.<2>

Appellant's comments on his appraisal note that in addition to delivering

superior service on all other requests for technical assistance, he was

Chief of the Technical Investigative Team investigating a major mine

disaster<3> and should therefore have been rated as having exceeded

Element #3. He said that the laudatory comments received from enforcement

districts, high employee morale, and timely completion of work projects

substantiated an Exceeds rating on Element 4. Appellant said he

consistently received an Exceeds rating in previous years on Element 5

and this rating period covered one of the busiest years in recent history,

with many demanding, high-profile investigations.

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

Exceeds on Elements 1 and 2 cannot be used to justify Exceeds for the

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

rating period, not just on events that occurred during the last months

of the period. The Supervisor stated that in reviewing Element 3, he

found that plans were executed in a timely and professional manner, which

simply met the standard. He testified that the accomplishments appellant

cited for Element 4 simply merit a Meets rating and that appellant had

been offered and declined the chance to supervise additional staff.

The Supervisor said he rated appellant as Meets on Element 5 because no

significant changes were instituted or technical needs addressed that

would justify an Exceeds rating.

The Supervisor stated that he does not look at just numbers when

giving an appraisal. He said he reviews other factors such as outside

assignments, heading committees, serving on task forces and special

details. The Supervisor said such tasks are not considered essential

on the performance rating but are used by him in the rating process.

When asked by the EEO Counselor whether the tasks he cited above were

written so that employees knew they were essential for an Outstanding

rating, or whether it was common knowledge to all employees, the

Supervisor stated that supervisors are allowed independence and that

his opinion on performance appraisals is allowable as long as he stays

within the performance system.

The Supervisor acknowledged to the EEO Counselor that appellant's FY

92 work output substantially exceeded the FY 90 and 91 work output of

other supervisory mining engineers who received Outstanding performance

appraisals from him.<4>

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 the Supervisor articulated legitimate,

nondiscriminatory reasons for the rating.

On appeal, appellant argues that the agency failed to interview two

primary customers with first hand knowledge of all aspects of his

managerial and technical proficiencies because their unbiased opinions

were contrary to the agency's desired conclusion.<5>

Appellant states that the Supervisor offered him additional staff

to supervise in a casual hallway conversation in the midst of a very

busy work schedule. Appellant states that neither the offer nor his

declining the offer was documented in writing. He states that additional

supervisory duties were never assigned or written into the performance

standards, and that he was not aware that he would be appraised on this

issue. Appellant challenges the Supervisor's statement that to receive an

Outstanding rating, he would be required to accomplish tasks not contained

in the performance standards. Appellant asserts that management failed

to provide any definitive guidance for exceeding the standard.

Appellant challenges the Supervisor's statement that there had been

no significant changes instituted or technical needs addressed that

would justify an Exceeds rating on Element 5. Appellant states

that the Magma Mine disaster was the largest metal mine disaster in

20 years. He developed, planned and organized the initial technical

investigative effort during the appraisal period. Appellant states that

the investigation required significant operational changes and technical

efforts which had never before been performed by the Division including

timber joint load testing, timber species identification, x-ray analysis

of rack specimens and soils laboratory work. He stated that this effort

required instituting significant changes and innovative technical work.

Appellant states that although not all of these items were conducted

during the appraisal period, the need was recognized and the technical

work was planned during that time.

ANALYSIS AND FINDINGS

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

him to disparate treatment based on 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 discrimination

complaint based on age in District Court in March 1993. The Supervisor

was aware of this complaint. His credentials, as the Selectee, were

called into question by appellant who argued that appellant was better

qualified for the supervisor position. The Supervisor rated appellant on

his annual performance appraisal six months later. The Commission finds

that appellant established a prima facie case of discrimination based

on reprisal based on the close proximity of time between his protected

activity and the alleged discriminatory event.

We next examine whether the agency articulated legitimate,

nondiscriminatory reasons for its action. The Supervisor stated that

appellant's appraisal was based on the entire rating period, and that work

used to justify Exceeds on one element cannot be used on another element.

The Supervisor also stated that appellant did not employ innovative

approaches or address new technical needs during the period.

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 has done so. Appellant rebuts the

Supervisor's statements that he could not justify an Exceeds rating

on Element 5 because appellant did not institute significant changes to

address technical needs. Appellant listed numerous examples of innovative

approaches and procedures used in the Magma mine disaster investigation.

He submitted the investigative report written by him. He presented

letters from colleagues describing new approaches used.

The Commission is also persuaded by the Supervisor's admission that he

treated appellant differently than similarly situated co-workers. The

Supervisor acknowledged to the EEO Counselor that he rated appellant as

Fully Successful in FY 92 even though appellant's work output was greater

than that of the other employees he rated as Outstanding for FY 90 and 91.

The Supervisor also admitted that he evaluated appellant against factors

not written into the performance guidelines.

CONCLUSION

Based upon a careful review of the record, and for the foregoing reasons,

it is the decision of the Commission to REVERSE the agency's finding of no

discrimination. To remedy its violation of Title VII of the Civil Rights

Act, the agency shall comply with this decision and the Order below.

ORDER (D1092)

The agency is ORDERED to take the following remedial action:

1. The agency is ORDERED to upgrade appellant's rating on Element

5 of his performance appraisal covering the period October 15, 1992,

through September 30, 1993, to Exceeds and thereby upgrade his overall

performance appraisal rating to one commensurate with Exceeds on three

critical elements.

2. The agency shall retroactively pay to appellant a cash award (plus

interest) equivalent to that paid to other GM-14 engineers with the

same overall rating less any amount appellant received for his Fully

Successful rating. The agency shall change appellant's records to

reflect any change and that appellant received a cash award. Appellant

is ORDERED to cooperate with the agency in this regard.<6>

3. Reasonable attorney's fees shall be awarded in accordance with 20

C.F.R. �1614.501(e).

The agency shall determine the appropriate amount of the award

(with interest) and other benefits due appellant, pursuant to 29

C.F.R. �1614.501, no later than sixty (60) calendar days after the date

this decision becomes final. The appellant shall cooperate in the

agency's efforts to compute the amount of an award and benefits due,

and shall provide all relevant information requested by the agency.

If there is a dispute regarding the exact amount of an award and/or

benefits, the agency shall issue a check to the appellant for the

undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. The appellant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer, at the address referenced in the statement entitled

"Implementation of the Commission's Decision."

The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of the cash award and other benefits due appellant,

including evidence that the corrective action has been implemented.

POSTING ORDER (G1092)

The agency is ORDERED to post at its Mine Safety XX Center copies of

the attached notice. 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.

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/she 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.

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. �1614.410.

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 (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:

October 14, 1999

_________________ _______________________________

DATE Carlton Hadden, Acting Director

Office of Federal Operations

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an Order by the United States Equal

Employment Opportunity Commission dated _________ which found that a

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

42 U.S.C. �2000e et seq., has occurred at this facility.

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect

to hiring, firing, promotion, compensation, or other terms, conditions

or privileges of employment.

The Department of Labor, Mine Safety Health Administration, Denver

Safety and Health Technology Center, Denver, Colorado, supports and will

comply with such Federal law and will not take action against individuals

because they have exercised their rights under law.

The Department of Labor, Mine Safety Health Administration, Denver

Safety and Health Technology Center, Denver, Colorado, has been found

to have discriminated against an employee in his annual performance

appraisal rating. The agency has been ordered to retroactively upgrade

the employee's rating on a certain element of the appraisal, which as

a result, changes the overall rating. The agency is ordered to pay a

cash award if applicable. The Department of Labor, Mine Safety Health

Administration, Denver Safety and Health Technology Center, Denver,

Colorado, will ensure that officials responsible for personnel decisions

and terms and conditions of employment will abide by the requirements

of all Federal equal employment opportunity laws and will not retaliate

against employees who file EEO complaints.

The Department of Labor, Mine Safety Health Administration, Denver

Safety and Health Technology Center, Denver, Colorado, will not in any

manner restrain, interfere, coerce, or retaliate against any individual

who exercises his or her right to oppose practices made unlawful by,

or who participates in proceedings pursuant to, Federal equal employment

opportunity law.

_____________________________

Date Posted: _____________________

Posting Expires: __________________

29 C.F.R. Part 1614

1 The Selectee became Supervisor sometime in 1991. Appellant's case

was adjudicated in March 1993. The judge found insufficient evidence

to support a claim of discrimination based on age.

2 The Supervisor's comments on Elements 3, 4, and 5 note that appellant

performed each in a timely and effective manner, thus meeting the

standard.

3 Appellant was Chief of the Technical Investigative Team investigating

the Magma Mine Disaster. The disaster occurred in August 1993.

4 The Supervisor rated appellant Fully Successful on his FY 92 performance

appraisal.

5 Appellant provided letters from the former Assistant Director-Safety,

Directorate of Technical Support commending appellant's work and two

mine engineers who were members of the Technical Investigative Team

describing the work performed under appellant's supervision

6 Appellant did not request compensatory damages.