Cipriano Ferrer, Jr., Appellant,v.William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service),) Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01972476 (E.E.O.C. Apr. 9, 1999)

01972476

04-09-1999

Cipriano Ferrer, Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service),) Agency.


Cipriano Ferrer, Jr. v. Department of Defense

01972476

April 9, 1999

Cipriano Ferrer, Jr., ) Appeal No. 01972476

Appellant, ) Agency Nos. 94.126; 95.069

v. ) Hearing Nos. 120-95-6612X

William S. Cohen, ) 120-95-6613X

Secretary, )

Department of Defense, )

(Army & Air Force Exchange Service),)

Agency. )

DECISION

The Commission accepts appellant's timely appeal from a final agency

decision ("FAD") concerning his complaints 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. See EEOC Order No. 960.001.

In his complaints, appellant alleged that he was discriminated against

based on his sex when he: (a) received a lower Performance Evaluation

Report ("PER") in April 1994 than he had received the previous year; (b)

was required to provide staffing support to an Area Manager-in-Training

(female, the "Area Manager") beginning in February 1994; (c) allegedly

was denied corrective action after the Area Manager used obscenities in

referring to him; and (d) his rebuttal to his PER was denied allegedly

because of problems concerning the Area Manager which appellant had

brought to his supervisor's attention; and discriminated against based

on reprisal for his prior EEO complaint when: (e) he was transferred at

no change to his job title, grade, step or rate of pay to a lower-graded

position of less responsibility in October 1994 and declared excess due

to his position deletion; and (f) a personnel request detailing him from

his position to the lower-graded position which would have changed his

annex, job code and job title was placed in his Official Personnel Folder

without the prerequisite prior notification to appellant and approval

from headquarters.

Beginning in September 1993, the section in which appellant (an

Assistant Manager, UA-12) worked went to a three-shift operation.

Appellant and the Area Manager worked the night shift (3:30 p.m. to

11:30 p.m.) until early 1994, when the Area Manager was placed on the

split shift (5:30 a.m. to 2:30 p.m.). Appellant alleged that the Area

Manager was treated more favorably by the Order Selection Manager and

that this preferential treatment resulted in appellant's lower PER,

the requirement that he provide staffing support to the Area Manager,

the alleged failure to correct her use of obscenities in referring to him

and the denial of his rebuttal to his PER. In late 1994, appellant's

position was declared to be excess and it was eliminated; thereafter,

appellant was detailed to a lower-graded position in transportation.

Appellant timely sought EEO counseling and filed his instant EEO

complaints, which were accepted and investigated by the agency.

Appellant timely requested hearings before an EEOC Administrative Judge

("AJ"). Thereafter, the AJ issued a notification of his intent to issue a

recommended decision ("RD") without a hearing (see 29 C.F.R. �1614.109(e))

and the AJ subsequently issued such an RD, which found no discrimination.

In the RD, the AJ found as follows: The AJ was not persuaded that

appellant established a prima facie case of sex discrimination regarding

his 1994 PER (allegation (a)) inasmuch as appellant did not claim that

a comparative employee was treated more favorably than he when his

supervisor (male) issued the 1994 PER. Rather, appellant's claim of

discrimination was based on his previous PER which had been issued by a

different supervisor (female) while appellant was in a different position.

Similarly, appellant did not establish that a comparative employee was

treated more favorably than he with respect to receiving relief because

a rebuttal to a PER was submitted (allegation (d)). In addition, the AJ

noted that despite appellant's acknowledgment that he had accomplished

only half his goals for the period at issue, he was afforded some relief

as a result of his rebuttal. Even assuming that appellant could establish

a prima facie case of discrimination when he was required to provide

staffing support to the Area Manager (allegation (b)), the AJ found that

he failed to establish that the legitimate nondiscriminatory reasons

articulated by the agency for its actions were pretextual or unworthy

of credence. The AJ found that appellant failed to establish a prima

facie case of discrimination regarding the alleged failure to correct the

Area Manager's use of obscenities in referring to appellant. Rather, the

record established that the Area Manager was issued a Counseling Letter

for her actions and two of her Appraisal/Training Records for 1994 were

annotated to note her difficulties in interactions with others. The AJ

was not persuaded that appellant's desire for more severe discipline

stated a claim under Title VII.<1>

Appellant's second complaint was based on reprisal, and challenged his

transfer at no change to his job title, grade, step or rate of pay to a

lower-graded position in October 1994 after he was declared excess due

to the elimination of his former Assistant Manager position (allegation

(e)). As for the elimination of his former Assistant Manager position,

the record establishes that the operation had been reduced to a single

shift and the position of other employees in the operation had also been

eliminated (including the position held by appellant's supervisor).

The AJ found that appellant failed to establish a causal connection

between his prior EEO complaint and the reduction in shifts which

resulted in the elimination of positions in the operation. Accordingly,

the AJ found that appellant could not establish a prima facie case of

reprisal with respect to this action. Appellant also challenged his

reassignment to the position of Distribution Operations Specialist,

UA-9, a change which he claimed severely diminished his supervisory

authority, responsibilities and involvement in operational decisions.

While acknowledging the operation's reduction to one shift, appellant

contended that either of two other UA-12s should have been detailed to

the UA-9 position in transportation. The AJ noted that appellant had 14

months of experience in transportation, and that neither of the other

two US-12s had any experience in transportation. Accordingly, the AJ

agreed with the agency's assertion that appellant was the logical choice

for the detail and, thus, that he failed to establish that the legitimate

nondiscriminatory reasons articulated by the agency for its actions were

pretextual or unworthy of credence. With respect to allegation (f),

the AJ noted that the personnel request was never effectuated. Thus,

the AJ found that this allegation was subject to dismissal in that it

addressed only a proposed personnel action which was never effectuated.

See 29 C.F.R. �1614.107(e).

The agency adopted the RD in its FAD. Through his counsel, appellant

timely appeals, and primarily argues that the AJ erred in issuing a

decision without a hearing because appellant was adversely treated by

the agency and his transfer to the UA-9 position was suspicious and not

properly processed. While it is conceded that appellant had asked for

a transfer away from his prior supervisor, the appeal brief notes that

he never requested a downgrade. The appeal brief also concedes that

appellant had prior experience in transportation, but contends that his

prior experience was in supervising UA-9s and not in actually performing

their duties, so that appellant had to request additional training.

If the Commission grants the request for a remand for a hearing, the

brief states that appellant "will prove throughout [sic] testimony and

exhibits [that] he was subjected to retaliation."

However, the Commission notes that an AJ may issue a decision without

a hearing when s/he finds that there is no genuine issue of material

fact. Such summary judgment is appropriate where the trier of fact

determines that, given applicable substantive law, no genuine issue of

material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). An issue is "genuine" if the evidence is such that a

reasonable fact-finder could find in favor of the non-moving party.

Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). In the

context of an administrative proceeding under Title VII, summary judgment

is appropriate if, after adequate investigation, appellant has failed to

establish the essential elements of his/her case. Spangle v. Valley Forge

Sewer Authority, 839 F.2d 171, 173 (3d Cir. 1988). Here, the Commission

is not persuaded that the AJ erred in determining that appellant failed

to produce evidence which tended to establish that he was subjected to

discrimination. Rather, appellant offered only conclusionary assertions

of discriminatory bias and reprisal. Even on appeal, appellant fails

to specifically identify the anticipated testimony and exhibits which

he claims will enable him to prevail. Therefore, the Commission does

not find that the AJ erred in issuing the RD pursuant to the provisions

of 29 C.F.R. �1614.109(e).

Accordingly, after a thorough review of the record, the Commission

finds that the RD adequately set forth the relevant facts and analyzed

the appropriate regulations, policies and laws. Therefore, it is the

decision of the Commission to AFFIRM the FAD.

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:

April 9, 1999

________________ ___________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1 Appellant also alleged that there was a romantic relationship

between the Area Manager and his supervisor. While the AJ observed

that they denied any such relationship, the AJ noted that in any event,

the Commission and the courts have found that isolated instances of

preferential treatment based on consensual romantic relationships, spousal

ties or friendship may be unfair, but do not constitute discrimination

in violation of Title VII because both males and females are equally

disadvantaged for reasons other than their gender. See, e.g., EEOC

Policy Guidance on Employer Liability under Title VII (1990); DeCintio

v. Westchester County Medical Center, 807 F.2d 304 (2d Cir. 1986),

cert. Denied, 108 S.Ct. 89 (1987); Miller v. Aluminum Co. Of America,

679 F. Supp. 495, aff'd mem., 856 F.2d 184 (3rd Cir. 1988).