01974592
11-30-1999
Sofia L. Aguilar, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency
Sofia L. Aguilar, )
Complainant, )
) Appeal No. 01974592
v. ) Agency No. DT-96-053
)
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.
Accordingly, the appeal is accepted in accordance with EEOC Order No. 960,
as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly found no discrimination
based on race (Hispanic), national origin (Mexican American), sex
(female), and reprisal (reporting an incident of sexual harassment<1>)
when complainant was not selected for a Woodworker Supervisor, WS-4604-10
position.
BACKGROUND
Complainant was a Lead Overage Shortage and Damage Claims Examiner at
the agency's Shipment Planning Branch. She applied for the position
of Woodworker Supervisor and was found qualified among competitive
candidates. A Hispanic, male of Mexican American extraction was selected.
In addition to her allegation of discrimination, complainant alleges
that the Selecting Official had a history of not selecting Hispanic
females for supervisory positions.
The Selecting Official denied discriminating against complainant in
his affidavit. He stated that while all of the candidates were very
well qualified, he chose the Selectee because he had more extensive,
related experience with the type of computer systems used. He said
that the computer aspect of the position was important to the success
of the mission. He stated that while he has participated in selection
panels, this was the first time he had been a selecting official.
In complainant's rebuttal statement she argued that her knowledge of
the Stock Control and Distribution System and Automated Warehouse System
were more pertinent to the mission than the Selectee's more extensive,
related experience with computer systems.<2>
The Report of Investigation compared complainant's and the Selectee's
experience and training. The Selectee listed more hours of education,
training and experience.
In its final decision the agency found complainant's allegations were
without merit. The agency found that complainant established a prima
facie case for discrimination based on sex and reprisal, however,
the agency articulated legitimate, nondiscriminatory reasons for its
selection and complainant failed to prove that these reasons were a
pretext for discrimination. This appeal followed.
ANALYSIS AND FINDINGS
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. Complainant has the initial burden
of establishing a prima facie case of discrimination. If complainant
meets this burden, the burden shifts to the agency to articulate
some legitimate, nondiscriminatory reason for its challenged action.
Complainant must then prove, by a preponderance of the evidence, that
the legitimate reason articulated by the agency was a pretext for
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Complainant can establish a prima facie case of discrimination by
showing: (1) that she is a member of the protected group; (2) that
she was qualified for the promotion; (3) that she was not selected for
the position; (4) that she was accorded treatment different from that
given to a person otherwise similarly situated who is not a member of
her protected group. See Keys v. Secretary of the Navy. 853 F.2d 1016,
1023 (1st Cir. 1988).
Complainant belongs to an identified protected class, and was qualified
for the position based on her training and many years experience in the
field. However, on the bases of race and national origin, complainant
was not treated differently than other employees because the Selectee was
also Hispanic and of Mexican American origin. The Commission therefore
finds that complainant has failed to establish a prima facie case of
discrimination based on race and national origin. Complainant states
a prima facie case based on sex because the Selectee was male.
In order to establish a prima facie case of discrimination for an
allegation of reprisal, complainant must show: 1) that she engaged in
protected activity; 2) that the alleged discriminating official was aware
of the protected activity; 3) that she was disadvantaged by an action of
the agency contemporaneously with or subsequent to such participation;
and 4) that there is a causal connection between the protected activity
and the adverse employment action. Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), affirmed,
545 F. 2d 222 (1st Cir. 1976); see also Mitchell v. Baldridge, 759 F. 2d
80, 86 (D.C. Cir. 1985); Burrus v. United Telephone Co. of Kansas, Inc.,
683 F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
The Commission finds that complainant established a prima facie case
of discrimination based on reprisal. Complainant engaged in protected
activity when she reported an alleged incident of sexual harassment
involving the Selecting Official to her supervisor. The Selecting
Official was aware of her report. Complainant's non-selection occurred
six months after her protected activity. Thus, a causal connection can
be shown based on closeness in time between the events.
Now that complainant has established a prima facie case of discrimination,
the agency has the burden of production to articulate some legitimate,
nondiscriminatory reason for its action. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981).
At this point, complainant bears the burden of establishing that the
agency's articulated reasons are a mere pretext for discrimination.
Complainant can do this either directly, by showing that a discriminatory
reason more likely motivated the agency, or indirectly by showing that
the agency's proffered explanation is unworthy of credence. Burdine,
450 U.S. at 256. In St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993), the Supreme Court held that a critical factor for the fact finder
in determining whether, as a matter of law, to find discrimination is
not whether the employer's explanation is credible, but whether it is
persuaded by the complainant that it was discrimination that motivated the
employer to act as it did. According to the Court, it is not sufficient
"to disbelieve the employer; the fact finder must believe the plaintiff's
explanation of intentional discrimination."
Id. At 519. In a non-selection case, pretext may be demonstrated in a
number of ways, including a showing that a complainant's qualifications
are observably superior to those of the selectee. Bauer v. Bailer,
647 F.2d 1037, 1048 (10th Cir. 1981)
Complainant alleges that she was better qualified for the position
than the Selectee because she had knowledge of certain computer systems
more critical to the mission than the Selectee's experience with other
computer systems used. The evidence of record, however, does not support
this contention. The vacancy announcement required knowledge of mission
equipment without specifying which computer systems were more critical.
The Selectee possessed more years of experience, more years of education
and considerably more years of field-related training than complainant.
Based on this evidence, we find that complainant has not established
that her qualifications for the position were "observably superior"
to the Selectee's. For that reason, and because the other evidence
adduced by complainant is insufficient to establish pretext, we find
she has not established that she was discriminated against as alleged.
CONCLUSION
Based upon a careful review of the record, and for the foregoing reasons,
it is the decision of the Commission that the agency's decision was
proper and is AFFIRMED.
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).
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
November 30, 1999
________________________ _______________________
DATE Carlton 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________
1 On or about May 23, 1995, complainant reported to her supervisor that
a co-worker alleged that she was sexually harassed by the Selecting
Official. The supervisor told the Selecting Official of complainant's
report. Complainant applied and was not selected for the position six
months later.
2 The Vacancy Announcement lists under required knowledge, skills and
abilities, "utilizing mission supplies and equipment." It does not
specify any name or type of equipment or computer system.