01972228
03-12-1999
Luisa J. Farias, Appellant, v. William S. Cohen Secretary, Department of Defense, Agency.
Luisa J. Farias v. Department of Defense
01972228
March 12, 1999
Luisa J. Farias, )
Appellant, )
) Appeal No. 01972228
v. ) Agency No. DT-95-069
) Hearing No. 310-96-5156X
William S. Cohen )
Secretary, )
Department of Defense, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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. The Final Agency Decision (FAD) was issued on
December 10, 1996 and received on December 19, 1996. The appeal was
postmarked on January 11, 1997. Accordingly, the appeal is timely,
(see 29 C.F.R. �� 1614.402(a)and 1614.604(b)), and is accepted in
accordance with EEOC Order 960.001.
Appellant filed a formal EEO complaint on June 16, 1995, alleging
discrimination on the bases of race (Hispanic) and national origin
(Mexican-American), when she was non-selected for the position of Equal
Opportunity Assistant, GS-05, by the Defense Logistics Agency (agency).
Following the agency's investigation, a hearing took place before an
administrative judge (AJ) who subsequently recommended a finding of
no discrimination. The agency subsequently adopted the AJ's findings
and recommendation of no discrimination. It is from this decision that
appellant now appeals.
The record reveals that appellant was employed as a Management
Assistant/Office Automation, GS-0344-05 and later reassigned to the
position as Supply Technician, GS-2005-05. In January, 1995, appellant
applied for the Equal Opportunity Assistant (EOA) position. On March 1,
1995, appellant was notified that she had not been selected.
The AJ found the record to support a prima facie case of discrimination.
Specifically, the AJ found that: (1) appellant was a member of a
protected group (Hispanic); (2) appellant was qualified for the position
for which the agency sought applicants; (3) appellant was not selected
for the position; and (4) the selectee was someone outside of appellant's
protected group.
The AJ determined that the agency articulated a legitimate,
non-discriminatory reason for the non-selection of appellant.
Specifically, the AJ noted that the selecting official (SO) used a
question and answer sheet to better understand the candidates. The SO
testified that each applicant was asked the same eight questions.
In addition, the SO sufficiently explained how each question related
to a questionnaire which each applicant responded to on the subjects
of knowledge, skills and abilities (hereafter KSAs). The SO advised
appellant during her interview that he was looking for someone that he
did not have to train, and who understood general EEO counseling and EEO
complaint processing. In addition, the record indicates, that when SO
came on board the selectee was already detailed to the EEO office and
processing complaints. The SO testified that the selectee did a very
good job handling the complaints during her detail and considered this
factor in his decision to select her for the position. In addition,
the SO testified that the selectee demonstrated an ability to work
independently as she had worked without supervision periodically during
her detail. The selectee's SF-171 form reflects that she encumbered
the EOA position as of August 13, 1993.
The AJ did not find appellant's assertions sufficient to establish
pretext. Specifically, appellant argued that the selectee was given
an unfair advantage in that she was detailed to the EOA position prior
to the selection. According to appellant, the details were illegal and
should have been competitively bid since they had promotion potential.
The agency's response to appellant's argument was that the selectee
was not placed into a detail, but rather she was placed in what was
then an unestablished position. As EEO complaints began to accumulate
and additional help was needed, the selectee would spend more time
working on such complaints. The record also indicates that the SO had
no involvement whatsoever in the detail of the selectee. In addition,
it is undisputed that the selectee volunteered for the detail.
Appellant also asserted that the SO told her during the interview that
he did not want to place a Union official in the EOA position because
such a person would generate complaints. As appellant admitted that
she was not a "union official," the AJ found that this statement did
not apply to her.
Appellant also asserted that the selectee exaggerated her EEO experience.
While the record indicates that the selectee's application tracked the
position description quite closely, the AJ did not find any evidence
which proves that she did not perform those duties. In addition, the AJ
found that the selectee had stellar credentials and there was no evidence
which supported a finding that appellant was substantially more qualified
than the selectee, or that the SO's articulated bases for the selection
were not the true reasons.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
253-56 (1981). The Commission concludes that, in all material respects,
the AJ accurately set forth the facts giving rise to the complaint and
the law applicable to the case. We further find that the AJ correctly
determined that appellant failed to establish discrimination based on
race or national origin. As appellant offered no additional evidence in
support of his claim on appeal, we discern no legal basis to reverse the
agency's finding of no discrimination. Accordingly, it is the decision
of the Equal Employment Opportunity Commission to AFFIRM the agency's
final decision finding no discrimination.
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:
3/12/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations