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