01976576
02-10-2000
Paulita G. Aguilar, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Paulita G. Aguilar v. Department of Veterans Affairs
01976576
February 10, 2000
Paulita G. Aguilar, )
Complainant, )
) Appeal No. 01976576
v. ) Agency No. 96-0842
) Hearing No. 360-96-8781X
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of � 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> Complainant alleges that
she was discriminated against on the basis of physical disability (hearing
impairment) when she was not promoted to the position of Lead Laboratory
Aid.<2> The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is affirmed.
The record reveals that complainant, a Medical Laboratory Aid at the
agency's Audie Murphy Memorial facility in San Antonio, Texas, filed
a formal EEO complaint on December 5, 1995, alleging that the agency
had discriminated against her as referenced above. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). Subsequently, the AJ issued a Recommended
Decision (RD) without a hearing, finding no discrimination.
The AJ concluded that complainant, who was qualified for the position,
established a prima facie case of disability discrimination because
the selectee was a non-disabled employee. The AJ then concluded that
the agency articulated a legitimate, nondiscriminatory reason for
its action, namely, that the selectee was better qualified. The AJ
found that complainant did not establish that more likely than not, the
agency's articulated reason was a pretext to mask unlawful discrimination.
In reaching this conclusion, the AJ found that the selecting officials'
testimony regarding their assessment of the selectee's extensive
supervisory experience and good leadership skills was credible and
corroborated by the selectee's employment history. The AJ found
although complainant was considered a valuable worker, she did not
have the required supervisory experience. The AJ also concluded that
complainant's assertion that the selectee was pre-selected was not
corroborated by credible evidence.
The agency's FAD adopted the AJ's RD. On appeal, complainant contends
that the selectee failed to perform effectively in the position and was
removed after one year. Complainant provides no evidence in support of
her contention. The agency requests that we affirm the FAD.
Upon review, the Commission finds that the AJ's RD summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
Based on the standards set forth in McDonnell Douglas v. Green, 411
U.S. 792 (1973)and Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), we discern no basis to disturb the AJ's findings of
no discrimination. We note that complainant failed to present credible
evidence that she was better qualified for the position than the selectee.
See Jurenka v. Department of the Navy, EEOC Appeal No. 01954334 (April
17, 1997). We also note that complainant failed to present credible
evidence that the agency's action was motivated by discriminatory animus
toward complainant's hearing impairment. Therefore, after a careful
review of the record, including complainant's contentions on appeal,
the agency's response, and 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:
February 10, 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.
2 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.