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VERGARA v. BENTSEN

November 15, 1994

MARY A. VERGARA, Plaintiff,
v.
LLOYD BENTSEN, Secretary of the Treasury, Defendant.



The opinion of the court was delivered by: SHIRLEY WOHL KRAM

 SHIRLEY WOHL KRAM, U.S.D.J.

 In this action for employment discrimination based on sex, defendant Lloyd Bentsen, Secretary of the Treasury (the "Government") moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment. On June 18, 1993, the case was referred to Magistrate Judge Leonard Bernikow for a Report and Recommendation. Subsequently, on March 17, 1994, the Magistrate Judge issued a Report and Recommendation (the "Report") granting in part and denying in part the Government's motion. Presently before the Court are the Government's objections to the Report.

 BACKGROUND1

 I. The 1972-1988 Discrimination Allegations

 In 1969, the government hired plaintiff Mary A. Vergara ("Vergara") as a tax auditor in the Examination Division of the Internal Revenue Service ("IRS"). In 1970, Vergara applied for the position of Special Agent in the Criminal Investigative Division of the IRS ("CID") and, in 1972, she became the first female Special Agent at CID. *fn2"

 Vergara alleges that she received disparate and discriminatory treatment during the hiring process and throughout her career with the IRS. For example, when she first became a Special Agent, her supervisor refused to assign her to an early morning arrest detail in Manhattan's meat-packing district. After she complained and the supervisor relented, the other Special Agents on the arrest detail told her that she would be responsible for waiting in the lobby of the IRS building until they arrived with the prisoners so that she could hold open the elevator door.

 In another incident, in 1978, Vergara alleges that a revenue agent touched her breast and told a crude joke in the presence of IRS personnel. Vergara immediately filed a written complaint with several supervisors, including the Branch Chief and the District Director. According to Vergara, however, no action was taken because the accused was a veteran agent at the IRS.

 Vergara later learned that Murray had in fact prepared two performance evaluations. The two evaluations were identical in all respects except that one evaluation concluded that Vergara possessed "very good potential" while the other concluded that Vergara had "limited or no potential" for a managerial position. See Evaluations, annexed to the Kelleher Aff., as Exhs. "1-B," and "1-C." Vergara alleges that the Branch Chief of CID was aware of the two evaluations but refused to take any disciplinary action against Murray. Vergara complained to the District Director of CID but no action was taken against any of the officials involved in the submission of the two evaluations. Shortly after complaining, however, Vergara was promoted to the position of Group Manager.

 II. The 1988-1990 Discrimination Allegations

 Vergara served as a Group Manager from 1980 until 1988. In September 1988, Chief Randy Vaughn ("Vaughn") informed Vergara that she was being detailed to act as his "Staff Assistant." Vergara was told that her assignment to the Staff Assistant position initially would last for ninety days, after which time the position would become permanent. When Vergara requested a job description for the Staff Assistant position, she was told that none existed and that she should draft one. According to Vergara, there was no position description available because the Staff Assistant job had not existed in any branch of CID prior to her appointment to the position. Vergara alleges further that her supervisors neither gained the required authorization of CID's Regional Commissioner nor processed the necessary paperwork before creating the new Staff Assistant position. In fact, Vergara's personnel records continued to classify her as a Group Manager.

 As Staff Assistant, Vergara was stationed outside Vaughn's office in the secretaries' area and had her lunch hours coordinated with the secretaries to ensure telephone coverage. Vergara maintains that her principal duties as Staff Assistant included general secretarial work and proofreading Vaughn's graduate thesis for his master's degree. After Vergara complained about the nature of her work assignments, she was informed that she was being transferred to the Regional Office for a period of ninety days beginning October 1, 1989. Vergara alleges that her supervisors failed to process the necessary paperwork in connection with this transfer.

 Vergara remained at the Regional Office for approximately six months despite assurances that the assignment would last only ninety days. At the same time, however, a male Special Agent who had also received a ninety day transfer to the Regional Office, returned to his original position and also received "premium pay."

 On March 21, 1990, Vergara met with CID Chief Peter Farrell ("Farrell") to discuss her role at CID, request a transfer back to her position as Group Manager and learn the reasons she had been refused "premium pay" (the "March 1990 Transfer Request"). Farrell allegedly told Vergara that she would not be permitted to resume her assignment as Group Manager, ostensibly because he would not allow a woman to take a step downward from Staff Assistant to Group Manager. See Deposition of Mary A. Vergara, taken on April 21, 1993 ("Vergara Dep."), annexed to the Kelleher Aff. as Exh. "25," at 328. Farrell stated further that "he had a lot of clerical things" for Vergara to do and that she would be his "troubleshooter." Id. at 329. When Vergara protested that Farrell was being unfair, Farrell allegedly stated that he "didn't have to be fair" and that, as Vergara did not belong to the union, "all he had to do was make a decision." Id. at 328. On March 24, 1990, despite complaining to the Acting Executive Assistant to the Assistant Regional Commissioner of CID, Vergara was sent back to her position as Staff Assistant in CID's Manhattan office (the "March 1990 Staff Assistant Reassignment").

 III. The EEO Complaints and Retaliation

 On March 23, 1990, Vergara sought counseling at the Equal Employment Opportunity ("EEO") office and subsequently filed a complaint alleging that she had been subjected to sex discrimination in connection with her assignment to the Staff Assistant position. Vergara alleges that, after filing the complaint with the EEO, supervisory personnel of the IRS retaliated against her in various ways. Accordingly, on November 19, 1990, Vergara filed retaliation charges against the Government in connection with her pursuit of the EEO complaint. Specifically, Vergara charged that her supervisors retaliated against her by (1) subtracting time taken to pursue her EEO grievance from her annual vacation time rather than granting her administrative leave as required by IRS regulations (the "Annual Leave Retaliation Claim"; *fn3" (2) including negative information in her "drop file" *fn4" without first discussing the contents with her (the "Drop File Retaliation Claim"); (3) giving her a negative evaluation in September 1990 (the "September 1990 Appraisal Retaliation Claim"); (4) failing to give her a written appraisal for her six-month assignment at the Regional Office; and (5) cutting her premium pay.

 On March 4, 1991, Vergara filed a second EEO complaint, alleging that she had received a baseless reprimand that had been circulated to other IRS executives. Vergara alleged further that her supervisors failed to provide her with an annual "Performance Management and Recognition System Performance Plan" despite the fact that other employees received copies. *fn5" Moreover, Vergara claimed that when EEO investigators sought to obtain her drop file, Howie Mann ("Mann"), her supervisor, falsely claimed that it had been destroyed in the normal course of business. Subsequently, Mann submitted the drop file to the EEO notwithstanding his earlier assertion that it had been destroyed.

 On January 23, 1991, the EEO notified Vergara that her discrimination claim was rejected in part on the ground that the action was not timely filed. See letter from Regional Complaints Center to Vergara of 1/23/91, annexed to the Complaint as Exh. "C." Vergara was informed further that the determination "constituted a final ...


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