01970989
10-13-1999
Randal Ramirez, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.
Randal Ramirez v. Department of Defense
01970989
October 13, 1999
Randal Ramirez, )
Appellant, )
)
)
v. ) Appeal No. 01970989
) Agency No. 96-038P
William S. Cohen, )
Secretary, )
Department of Defense, )
(Army & Air Force Exchange )
Service), )
Agency. )
)
DECISION
INTRODUCTION
On November 4, 1996, Randal Ramirez (the appellant) initiated a timely
appeal to the Equal Employment Opportunity Commission (the Commission).
Appellant's complaint alleged that he was discriminated against in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
ISSUES PRESENTED
1) Whether appellant proved, by a preponderance of the evidence, that
he was discriminated against because of his race (Hispanic), national
origin (Mexican), and sex (male) when his position was not upgraded on
two separate occasions; and
2) Whether appellant proved, by a preponderance of the evidence, that
he was discriminated against because of his race (Hispanic), national
origin (Mexican), and in reprisal for submitting requests to upgrade
his position when he was told that his position was going to be deleted.
BACKGROUND
Appellant filed his formal complaint on December 4, 1995. Following an
investigation of his complaint, appellant was provided with a copy of the
investigative file and notified of his right to request a hearing before
an EEOC Administrative Judge (AJ). Appellant requested a final decision
without a hearing. Thereafter, the agency issued a final decision dated
October 11 1996, which found that appellant had not been discriminated
against. It is from this decision that appellant now appeals.
Appellant began working for the agency in October 1988. In 1990, he was
promoted to an Universal Annual (UA) position as a Training Instructor.
He was subsequently reassigned to a People Resource Manager position,
and in 1993, he was transferred to the position of UA-9, Training and
Development Specialist in the PACRIM region. The PACRIM region, which
is headquartered in Okinawa, Japan, was a regional office of the Army
and Air Force Exchange Service (AAFES).
The Senior Vice President of PACRIM was A-1. He was subsequently
replaced by A-2. Appellant's first-level supervisor was B-1, UA-12,
Human Resources Management Specialist. His second-level supervisor
was B-2, Chief, Human Resources, who reported directly to the Senior
Vice President.
In March 1995, A-1 and B-1 forwarded a request to Headquarters, AAFES
in Dallas, Texas to upgrade appellant's position from UA-9 to UA-11,
Human Resources Management Specialist position. By letter dated April
21, 1995, the request was returned without any action being taken on the
request. The letter was signed by D-1, Vice President, Strategic Plans.
According to D-1, the request was returned without action because of a
"[d]uplication of functions." D-1 indicated that "[t]he revised job
description includes functions that are the responsibility of the HQ
Development [and] Training Division."
In June 1995, A-1 and B-1 resubmitted the request to upgrade appellant's
position. This request was also returned without action by letter dated
August 4, 1995. This letter was signed by D-2, Senior Vice President,
Strategic Planning and Communications Directorate. According to D-2,
a review of the proposed job description again indicated that there
was a duplication of functions. D-2 stated "[i]f the UA-9 Development
& Training Specialist position can assume some of the UA-12 Human
Resources Management Specialist functions, there may be justification
for downgrading the UA-12."<1>
According to appellant, in September 1995, he learned that individuals
outside of his protected categories had their positions upgraded.
Specifically, he cited C-1 (Asian, female, national origin unknown) whose
position was upgraded from UA-7 to UA-9 , C-2 (Asian, male, national
origin unknown), C-3 (Caucasian, female, national origin unknown), C-4
(Caucasian, male, national origin unknown)<2>, C-5 (Caucasian, male,
national origin unknown) whose position was upgraded from UA-13 to UA-14,
B-1 (Black, female, American) whose position was upgraded from UA-11 to
UA-12, and B-2 (Caucasian, male, American) whose position was upgraded
from UA-13 to UA-14. According to the record, during the two-year period
from November 1993 through December 1995, appellant and C-6 (Hispanic,
male, national origin unknown) were the only employees whose position
upgrade requests were denied.<3>
With regard to allegation (2), appellant indicated that on September
22, 1995, he was informed by B-2 that his position was being deleted.
A-2 testified that Headquarters, AAFES developed a list of PACRIM
region jobs that did not have a equivalent in the Continental United
States (CONUS). A-2 stated that if the PACRIM position did not have a
corresponding match in the CONUS, they were to determine if PACRIM had
a unique need that the CONUS regions did not. According to A-2, he did
not feel that "we needed a UA training person as each Exchange conducts
most of their own training." A-2 also maintained that appellant spent
a large amount of time on duties other than training; therefore, he
felt they "could do without the position." A-2 indicated that several
positions were eliminated, some that were encumbered and some vacant.
Appellant's position, stated A-2, was reviewed and evaluated like all
other positions. Finally, A-2 stated that abolishing appellant's position
was purely a business decision based on perceived need and guidance from
Headquarters, AAFES. According to A-2, appellant was "[n]ever personally
discussed between [D-2] and myself."
D-2 testified that he went to PACRIM in order to review their staffing
with the goal of developing an organization that was similar to those
in the CONUS. An issue arose with regard to the need for appellant's
position. According to D-2, after about a five minute discussion,
he agreed that the position was not needed. D-2 testified that he did
not know appellant and had no knowledge that he had submitted position
upgrade requests on two occasions.
ANALYSIS AND FINDINGS
Appellant's contention that allegations (1) and (2) were based, in part,
on his race, national origin, and sex constitutes a claim of disparate
treatment employment discrimination. As such, it must be analyzed under
the tripartite analysis enunciated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Appellant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and appellant must then prove, by a
preponderance of the evidence, that the legitimate reasons offered by the
employer were not its true reasons, but were a pretext for discrimination.
Appellant has the ultimate burden of showing that discrimination occurred.
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).
The above analytical paradigm need not be adhered to in all cases.
In appropriate circumstances, when the agency has established legitimate,
nondiscriminatory reasons for its conduct, the trier of fact may dispense
with the prima facie inquiry and proceed to the ultimate stage of the
analysis, i.e., whether the complainant has proven by preponderant
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).
Therefore, in the present case, the Commission will bypass the prima
facie stage of the analysis and focus on whether the agency's explanations
for its actions were a pretext for discrimination. Burdine, 450 U.S. at
253.
Allegation 1
According to the agency, appellant's position was not upgraded to
UA-11 because the job descriptions for the upgraded positions that were
submitted had duties and functions that duplicated those that were present
in existing positions at PACRIM. Appellant did not established that this
reason was pretextual. In fact, he testified that he was performing the
duties of a Human Resources Specialist. Although appellant and C-6,
both Hispanic males, were the only individuals whose position upgrade
requests were denied, we find no persuasive evidence that the job
descriptions for the upgraded positions of C-1, C-2, C-3, C-4, C-5,
B-1 and B-2 had duties and functions that duplicated those that were
present in existing positions at PACRIM. We also note that C-2 and
C-3's positions were newly established and therefore were not really
comparable to appellant's situation. Moreover, B-2 and C-5's positions
were upgraded from UA-13 to UA-14 in order to make them consistent with
similar positions in Europe and Headquarters, AAFES.
Allegation 2
We find that appellant failed to establish that the explanation offered
by A-2 and D-2 regarding the deletion of his position was pretextual.
Other than his bare assertion, appellant presented no persuasive evidence
that his race or national origin played any role in this matter.
Reprisal
A prima facie case of reprisal is established by showing that: (1)
appellant engaged in protected EEO related activity; (2) the employer was
aware of the protected activity; (3) appellant was subsequently subjected
to adverse treatment; and (4) the adverse action followed the protected
activity within such a period of time that retaliatory motivation may
be inferred. Manoharan v. Columbia University College of Physicians and
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d
493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783, 790,
(D.C. Cir. 1984).
After a careful review of the record, we find that appellant did not
establish a prima facie case of discrimination based on reprisal.
There is no evidence that appellant ever engaged in any protected EEO
activity prior to seeking counseling with regard to allegations (1)
and (2) in October 1995. Furthermore, we note that appellant, in large
part, argued that A-2 and D-2 deleted his position in retaliation for
his submitting the two position upgrade requests. B-1 offered support
for appellant's contention.<4> However, the submission of a position
upgrade request is not a protected activity.
Finally, we note appellant's testimony that he was told by B-1 of a
conversation between A-2 and B-2 that supposedly occurred on October
24, 1995. According to appellant, B-1 told him that A-2 stated that
"[i]f it were up to him, anyone who filed a complaint or grievance would
not see a promotion or extension under him." B-1, who was not present
for the conversation, learned about it from B-2.
B-1 testified that it was clear from what B-2 told her that A-2 would not
take favorable actions on behalf of those employees who filed complaints.
Both B-2 and A-2 denied that A-2 made the remarks attributed to him by
appellant and B-1. According to B-2, A-2 merely stated that "if anyone
was not happy in their job or did not want to be in PACRIM/Okinawa, they
just needed to say so and he would see they were moved." According to
A-2, his comments were misconstrued. He did, however, acknowledge
stating that if an employee did not want to work for him then he would
rather not have them. Finally, A-2 indicated that he had no problem
with employees who filed "legitimate complaints or grievances" and would
not use it as a reason to deny someone a promotion or an extension.
We find that there is a lack of persuasive corroborating evidence to
support appellant and B-1's testimony about the conversation between
A-2 and B-2. We note, in this regard, that neither appellant nor B-1
were parties to the conversation; therefore, the reliability of their
testimony on this matter is questionable.
CONCLUSION
Accordingly, it is the decision of the Commission to AFFIRM the agency's
final decision in this matter.
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:
Oct. 13, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The letters of D-1 and D-2 did not mention appellant, but only referred
to his position; consequently, there is no evidence that either
individual was aware of appellant's race, national origin or sex.
2According to the investigative report, the agency did not provide any
details concerning the upgrade of C-4's position. Appellant indicated,
however, that he was upgraded from UA-13 to UA-14.
3C-6's upgrade requests were denied in December 1993 and March 1995.
According to the investigative report, his request, in December 1993,
to upgrade his position from UA-7 to UA-9 was denied because PACRIM
already had a UA-9 performing the majority of the duties in his propsed
job discription. His March 1995 request to upgrade his position from
UA-9 to UA-11 was denied because all regional Visual Marketing Specialists
were at the UA-9 level.
4B-1 testified that "I believe the fact that [appellant's] position was
deleted, was retaliation for our continual submission of paperwork to
effect an upgrade for him. I believe this was HQ's [sic] way of saying,
"we are not going to upgrade him, and this is what we think of him and
you continuing to ask.'" According to B-1, she once complained about
the amount of time it was taking to review her position classification.
Headquarters, AAFEES, she stated, rotated her out of PACRIM and out
of her position. According to B-1, she was never provided with an
explanation.