Rosemary L. Capuano, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 9, 1999
01973475 (E.E.O.C. Apr. 9, 1999)

01973475

04-09-1999

Rosemary L. Capuano, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Rosemary L. Capuano, )

Appellant, )

) Appeal No. 01973475

v. ) Agency No. 94-00250-013

) Hearing No. 120-96-5389X

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

Appellant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final decision of the agency concerning her

allegation that the agency violated Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. �2000e et seq. The Commission hereby

accepts the appeal in accordance with EEOC Order No. 960, as amended.

The issue presented is whether appellant proved, by a preponderance

of the evidence, that she was discriminated against because of her sex

(female) when she was not selected for the position of Operations Manager,

NF-2003-5, at the agency Exchange Service's Fashion Distribution Center

in Bayonne, New Jersey, in May, 1994.

At the time of her complaint, appellant was employed by the agency as

a Warehouse Manager, NF-2030-4, at the agency Exchange Service Center,

Norfolk, Virginia. Believing that she was a victim of discrimination,

appellant sought EEO counseling and later filed a formal EEO complaint

dated July 6, 1994, wherein she alleged that she had been discriminated

against on the basis of sex (female) when the above agency action

took place.

The agency complied with all procedural and regulatory prerequisites,

and on January 24, 1997, the EEOC Administrative Judge (AJ) issued

a Recommended Decision (RD) finding no discrimination based on sex.

Rather, the AJ was persuaded that the Recommending Official (RO) made the

recommendation he did, which the selecting official then accepted, because

he felt that the distribution management experience of appellant and the

male selectee (ST) were roughly equal, but that the ST was exhibiting

better current performance at the time of selection. Subsequently,

the agency adopted the RD as its own final decision.

On appeal, appellant's attorney contends, as evidence of discrimination,

that the �fully successful� interim 1993 performance evaluation, used by

the RO to rate appellant, was suspiciously inconsistent with her final

�outstanding� rating for 1993, and her prior three yearly evaluations,

all of which were �outstanding� also. Additionally, appellant's prior

�outstanding� ratings were better than those of the ST, who received

only �fully successful� ratings during the same period. Moreover,

appellant's past experience managing a larger and more complex facility,

with more subordinates and a larger volume of sales, was far superior

to that of the ST, as was her educational background and knowledge of

electronic data processing (EDP).

In response, the agency contends that all candidates were rated using the

same criteria, namely, three technical critical factors, including ability

to manage a large staff and numerous sales outlets, skill in utilization

of the agency's EDP system, and ability to manage traffic/transportation

for numerous sales outlets, Candidates were also rated on four managerial

critical factors: communication; planning, organizing, and scheduling;

delegating and directing; and equal employment opportunity. Furthermore,

in the case of appellant and the ST, interim 1993 performance evaluations

were used because their final evaluations were not available at the

time the selection was to be made. Since the RO considered that the

most recent facilities managed by appellant and the ST were roughly

the same size, that education was not a selection criteria, and that

the technical critical factor of knowledge of the agency's EDP system

did not rate overall data processing knowledge but only the ability

to use the automated merchandising system, the result was that the ST's

overall ranking score was higher than that of appellant, 104.5 to 88.1.

It was on this objective basis, the agency contends, that the ST was

chosen over appellant.

After a careful review of the record in its entirety, the Commission

finds that the AJ's RD summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. We therefore discern no

basis to disturb the AJ's finding of no discrimination.

In this regard, we note that while appellant may justifiably protest

that she would have received a higher score if, among other factors,

her education, greater knowledge and experience of EDP systems, and

her prior three performance evaluations had been taken into account,

it is not her prerogative but rather the agency's to choose criteria

for evaluating job candidates for a particular position, as long as the

criteria are applied in a nondiscriminatory manner. See Loeb v. Textron,

Inc., 600 F.2d 1003, 1012, n.6 (1st Cir. 1979). It is uncontroverted

that the selection criteria used, narrow though they might have been,

affected all the candidates in the same manner. Although appellant

contends that her 1993 interim evaluation is �highly suspect,� the

record evidence is unmistakable that this evaluation was done by her

current supervisor, not the RO. Furthermore, the record testimony

of an agency Regional Personnel Manager unequivocally states that

some selecting and recommending officials would contact the current

supervisor of an employee candidate to obtain a more current assessment

of the candidate's performance, even though the candidate was not due an

evaluation until some future date. This information would then be used

to rate the candidates. Such a practice, according to the Personnel

Manager, was not �uncommon,� nor was it �incorrect.�

We further note that although appellant points to the fact that she

had supervised a much larger operation than the ST as evidence of

discriminatory bias by the RO in choosing the ST, the AJ found the

RO to be credible when he stated that the considered the facilities

supervised by appellant and the ST to be �essentially equivalent� in

size. Since this credibility determination was based on the demeanor

of the witness at the hearing, the Commission will not disturb the

AJ's finding. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1975);

Saramma v. Department of Veterans Affairs, EEOC Request No. 05930131

(September 2, 1993); Wrenn v. Gold, 808 F.2d 493, 499 (6th Cir. 1987).

Finally, we note, along with the AJ, that the RO had initially recommended

a female candidate who had scored higher than the ST for the position,

113.5 to 104.5, but was not selected because she was unable to work

and was receiving disability benefits. Here, we concur with the AJ's

determination that the RO's initial recommendation of a female candidate

militates against a finding of sex discrimination when the RO did not

afterwards recommend appellant for the same position.

It is accordingly the decision of the EEOC to AFFIRM the agency's final

decision in this matter.

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. �l6l4.604(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:

April 9, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations