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.