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

Equal Employment Opportunity CommissionOct 13, 1999
01970989 (E.E.O.C. Oct. 13, 1999)

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.