Sofia L. Aguilar, Complainant,v.William S. Cohen, Secretary, Department of Defense, Agency

Equal Employment Opportunity CommissionNov 30, 1999
01974592 (E.E.O.C. Nov. 30, 1999)

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.