01994367
02-05-2002
Mike M. Amaro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Mike M. Amaro v. United States Postal Service
01994367
February 5, 2002
.
Mike M. Amaro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01994367
Agency No. 4-G-780-0196-98
DECISION
Mike M. Amaro (complainant) timely initiated an appeal from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleged that he was discriminated against on the bases of age
(50) and reprisal (prior EEO activity) when:
on January 16, 1998, he was rated �unacceptable� on his 1997 merit
evaluation;
on January 16, 1998, he was given a proposed letter of warning in lieu
of 14-day suspension.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Manager Customer Service, EAS-20, at the East Austin Station in
Austin, Texas. Believing he was a victim of discrimination, complainant
sought EEO counseling and subsequently filed a formal complaint on
May 27,1988. At the conclusion of the investigation, complainant was
informed of his right to request a hearing before an EEOC Administrative
Judge or alternatively, to receive a final decision by the agency.
When complainant failed to respond within the time period specified in
29 C.F.R. � 1614.108(f), the agency issued a final decision.
In its FAD, the agency concluded that complainant did not establish a
prima facie case of either age or retaliation. Specifically, the agency
stated that age was not a determining factor in management's decision to
rate complainant �unacceptable.� The agency argued that complainant was
one of four supervisors rated �unacceptable.� The agency asserts that the
ages of the four rated unacceptable are 51, 50 (complainant), 43 and 39.
The other four supervisors were rated �met expectations/objectives.�
Their ages are 57, 43, 38 and 31. The agency noticed no discriminatory
pattern related to age by management. The agency argued that management
explained that complainant's evaluation was based on his performance and
past discipline. The agency further concluded that since documentary
evidence does not show that one age group or another was given more
favorable evaluations, complainant cannot show that age was the
determining factor for his �unacceptable� evaluation.
The agency also argued that the record shows that on January 16, 1998, in
a proposed letter of warning in lieu of a 14-day suspension, complainant
was charged with unsatisfactory performance. Specifically the agency
noted that complainant was charged with failure to meet the duties and
responsibilities of his position and failure to follow instructions, but
the letter of warning was never issued. In the Notice of Decision dated
May 19, 1998, the proposed letter of warning was nullified. The agency
further states that four days after complainant received the proposal
notice management also issued a letter of warning to a 31-year-old
employee, who was charged with unsatisfactory performance for failing
to meet the duties and responsibilities of his position and for failing
to follow instructions. The agency consequently concluded that similar
infractions netted similar consequences, with no regard for age.
The agency further alleged that there is nothing to show the link between
complainant's prior EEO complaint and the evaluation or the letter of
warning. The fact that complainant had prior EEO activity did not shield
him from being held responsible for his area of authority.
On appeal, complainant contends that the agency failed to investigate
fully the behavior of the Manager of Customer Services Operations.
Complainant averred that the disciplinary action that he received was
overturned as �unwarranted.� Complainant alleged that several managers
all over the age of forty, suffered similar embarrassment at the hands
of the Manager Customer Services Operations. Complainant contends that
five out of five employees over the age of forty obtained a rating of
either �unacceptable or not rated,� both of which are detrimental merit
evaluations according to Agency policy. Complainant also contends that
management had a history of retaliation against several employees that
testified against management. Complainant further stated that the agency
has engaged in a �cover up� of the retaliation by management.
ANALYSIS AND FINDINGS
Complainant argued that his �unacceptable� evaluation and the proposed
letter of warning in lieu of a 14-day suspension was based on his age and
his prior EEO activity. These allegations constitute claims of disparate
treatment. In general, claims alleging disparate treatment are examined
under the three-part analysis first enunciated in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973); Loeb v. Textron, 600 F.2d 1003
(1st Cir. 1979) (requiring a showing that age was a determinative factor,
in the sense that �but for� age, complainant would not have been subject
to the adverse action at issue). For complainant to prevail, he must
first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency
has met its burden, the complainant bears the ultimate responsibility
to persuade the fact finder by a preponderance of the evidence that
the agency acted on the basis of a prohibited reason. St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993).
In an ADEA case, complainant may establish a prima facie case by showing,
inter alia, that he is in the protected group (over 40), and was
treated less favorably than other similarly situated employees younger
than he. However, it is not necessary for complainant to show that a
comparative individual, from outside of his protected group, was treated
differently. O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308
(1996); Enforcement Guidance on O'Connor v. Consolidated Coin Caters
Corp., EEOC Notice No. 915.002, n.4 (September 18, 1996). In this case,
we find that complainant has failed to establish a prima facie case of
age discrimination. While complainant is within the protected groups,
complainant has failed to present evidence that similarly situated
individuals younger than he were treated differently under similar
circumstances. We note that during the same period three employees
younger than complainant received a �Met Objectives/Expectations� 1997
Merit Evaluation and also we note that some employees younger than
complainant did not receive a Letter of Warning. However, the record
does not indicate that those comparators occupied the same position
or level as complainant did at the time the incident occurred and thus
were similarly situated to him. In the absence of any other evidence
from which to infer a discriminatory motive, the Commission finds that
complainant has not established a prima facie case of age discrimination.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to an
inference of discrimination. Furnco Construction Co. v. Waters, 438
U.S. 567, 576 (1978); Shapiro v. Social Security Administration, EEOC
Request No. 05960403 (December 6, 1996). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell Douglas,
a complainant may establish a prima facie case of reprisal showing that:
(1) he or she engaged in a protected activity; (2) the agency was aware
of the protected activity; (3) subsequently, he or she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Department of
the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000). 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. Simens v. Department of Justice,
EEOC Request No. 05950113 (March 28,1996) (citations omitted).
The Commission further finds that complainant established a prima
facie case of reprisal. The record shows that complainant filed two
EEO complaints on December 17, 1997 and September 23, 1997, and that
the evaluation was issued on January 7, 1998 and the proposed letter
of warning was issued on January 16, 1998. Also the record shows that
complainant named the management official that rated complainant as
�unacceptable� and issued the proposed warning letter as the alleged
responsible official of discrimination in both complaints. Further the
record shows that management was aware of complainant's prior activity.
The agency attempted to articulate a legitimate non-discriminatory reason
for the �unacceptable� performance evaluation and the letter of warning,
by asserting that the fact that complainant had prior EEO activity did
not shield him from being held responsible for his area of authority.
The agency alleged that complainant did not present any documentation to
refute the agency's legitimate non-discriminatory reasons that management
offered for its action; however, the record does not reveal that the
agency gave any reasons for its actions. As the agency was unable to
produce the management official responsible for the �unacceptable� and
the letter of warning, any explanation it provides must be viewed as an
after-the-fact justification. While the agency's burden to articulate
a legitimate non-discriminatory explanation for its actions is not
an onerous one, Commission precedent holds that the agency must set
forth, with sufficient clarity, reasons for complainant's unacceptable
performance and letter of warning such that he has a full and fair
opportunity to demonstrate that those reasons are pretext. See Parker
v. United States, EEOC Request No. 059001100 (April 30, 1990); Lorenzo
v. Department of Defense, EEOC Request No. 05950931 (November 6, 1997).
In providing an after-the-fact justification for complainant's complaint
based on retaliation, the agency has failed to meet its burden to
articulate a legitimate non-discriminatory reason for its actions.
Accordingly, we find that complainant's unacceptable performance and the
letter of warning was motivated by retaliation. The agency's finding
of no retaliation in this matter is therefore REVERSED.
Accordingly, after a careful review of the record, including complainant's
statement on appeal, the agency's response, and arguments and evidence no
specifically discussed in this decision, we AFFIRM the agency's finding
of no age discrimination. Finally, because we find that complainant
was subjected to retaliation when he was rated as an unacceptable and
when he received the letter of warning. We direct the agency to comply
with our ORDER set forth below.
ORDER
The agency is ORDERED to take the following remedial actions:
The agency shall take corrective, curative and preventative action to
ensure that reprisal discrimination does not recur. This shall include,
but is not limited to, providing training on employment discrimination
laws for the agency officials involved in the complaint, including the
Manager, Customer Service Operations. Within thirty (30) calendar days
of the date the training is completed, the agency shall submit to the
compliance officer appropriate documentation evidencing completion of
such training.
Within ninety (90) calendar days of the date this decision becomes final,
the agency shall ensure that the Manager of Customer Service Operations
cited herein no longer has any supervisory or managerial authority over
complainant, at any level or at any time. This order shall be carried
out without transferring complainant or altering his job duties, unless
he agrees to such changes.
Within thirty (30) calendar days the agency shall remove the proposed
letter of warning in lieu of a 14-day suspension, dated January 16,
1998, from complainant's personnel file.
Within thirty (30) calendar days the agency shall expunge complainant's
1997 merit evaluation rated �unacceptable� and order a new evaluation from
another manager not involved in any of complainant's prior complaints.
The issues of compensatory damages and attorney's fees and costs are
REMANDED to the agency. The agency shall conduct a supplemental
investigation of the compensatory damages issue. Complainant,
through counsel, shall submit a request for attorney's fees and costs
in accordance with the Attorney's Fees paragraph set forth below.
No later than sixty (60) after the agency's receipt of the attorney's
fees statement and supporting affidavit, the agency shall issue a
final agency decision addressing the issues of attorney's fees, costs,
and compensatory damages. The agency shall submit a copy of the final
decision to the Compliance Officer at the address set forth below.
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 (G0900)
The agency is ordered to post at its Austin, Texas facility 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
ATTORNEY'S FEES (H0900)
If complainant 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2002
_________________
Date