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).