01980943
01-07-2000
Fernando G. Hernandez, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Fernando G. Hernandez v. Department of the Air Force
01980943
January 7, 2000
Fernando G. Hernandez, )
Complainant, )
) Appeal No. 01980943
v. )
) Agency No. RXOF94026
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision ("FAD") concerning his complaint of employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> In his complaint, complainant alleged that he
was discriminated against on the bases of national origin (Hispanic/Cuban)
and reprisal (prior EEO activity), when management restricted him from
entering the work area of his former supervisor. The Commission accepts
this appeal in accordance with the provisions of EEOC Order No. 960.001.
For the following reasons, we AFFIRM the agency's decision.
The record reveals that during the relevant time, complainant was
employed as an Electronic Engineer in the Electronics Warfare Branch
of the agency's Robins Air Force Base in Georgia. At some point in
1992, complainant and his immediate supervisor ("SV1") encountered
difficulty in their work relationship. As a result, complainant filed
an EEO complaint which was settled pursuant to a negotiated settlement
agreement. The agreement required that the agency reassign complainant
from SV1's supervision in exchange for his withdrawal of his pending
EEO complaint. Shortly after the signing of the agreement, complainant's
second-line supervisor ("SV2") informed complainant that he was no longer
allowed access to the work area supervised by SV1. SV2 stated that he
also informed SV1 that he was not allowed in complainant's work area.
SV2 stated that because of the friction between the two, he felt that it
was best to keep them apart. While complainant contended that his job
required him to interact with those from his former work area, both SV2
and complainant's current supervisor indicated that complainant's new job
only required minimal contact with his former work area and that there was
no work-related reason for his continued presence in his former work area.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a complaint on September 27, 1994.
The agency accepted the complaint for processing, and at the conclusion
of the investigation, complainant was granted thirty days to request
a hearing before an EEOC Administrative Judge or an immediate FAD.
After complainant withdrew his request for a hearing, the agency issued
a final decision finding no discrimination.
Following United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 713-14 (1983), the FAD concluded that since the agency had
established legitimate, nondiscriminatory reasons for its action, it could
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 pretext for discrimination.
The FAD then found that complainant failed to present probative evidence
establishing that SV2's stated reasons for restricting complainant's
access to his former work area were pretext for national origin and/or
reprisal discrimination. On appeal, complainant makes no new contentions,
and the agency requests that we affirm the FAD.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973), and Hochstadt v. Worcester Found. for Experimental
Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases), the
Commission finds that complainant failed to establish discrimination
in this case. There is simply no credible evidence to refute SV2's
rationale for restricting each employee's access to the other's work area.
We note that because SV1 supervised an entire work area, complainant's
restriction was geographically larger than that of SV1. We, however,
find that SV2 credibly stated that he believed the broad restriction
was best because it kept the two parties separated. Therefore, after
a careful review of the record, including arguments and evidence not
specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 7, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.