Dinnah A. Lacsena v. Department of Defense
01996881
October 10, 2001
.



Dinnah A. Lacsena,
Complainant,

v.

Donald H. Rumsfeld,
Secretary,
Department of Defense
(Army and Air Force Exchange Services),
Agency.

Appeal No. 01996881

Agency No. 99031

DECISION

Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. § 2000e et seq.  The appeal is accepted pursuant
to 29 C.F.R. § 1614.405.  Complainant alleged that she was discriminated
against on the basis of  sex (female), when she was not selected for a
regular part-time (RPT) position, and on the basis of reprisal (prior
EEO activity), when during the period of March 1998 to November 1998 she
was subjected to various adverse acts by management such as not being
selected for a RPT position, being counseled for asking for a change in
her leave schedule, not being scheduled properly, having her work hours
reduced, and not being paid properly.

BACKGROUND

The record reveals that during the relevant time, complainant was employed
as an intermittent Senior Store Associate at the agency's Luke Shoppette,
Luke Air Force Base, Glendale, Arizona.  Believing she was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on November 25, 1998.  At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge or alternatively to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision.

Complainant applied for a RPT Senior Store Associate position in the
shoppette.  This position was equal in grade to her current position.
However, as a RPT, she would have been eligible for additional benefits,
e.g., health insurance, to which she was not entitled as an intermittent.
One other associate applied for the position.  On March 17, 1998,
complainant was notified that she was not selected.  She went to the
Human Resources Office to find out why she was not selected and if she
had a chance for the position when it became vacant again.  The Human
Resources Assistant provided complainant with the following options: (1)
talk with the Human Resources Manager; (2) talk with the Luke Shoppette's
Manager; or (3) talk with EEO.  Complainant decided to talk with the Luke
Shoppette's Manager.  Subsequently, on October 13, 1998, complainant and
an EEO counselor spoke with the General Manager of the Luke Air Force
Base Exchange; the Luke Shoppette was a part of the Exchange. According
to complainant, this conversation was prompted by her being scheduled
to work on a Wednesday night, that she had previously requested off to
attend an important church meeting. <1>

In sum, in addition to the Wednesday night incident, complainant alleges
she was discriminated against from March 1998 to November 1998 in the
following matters when: (a) she was not selected for 4 vacant RPT Senior
Sales Associate positions; (b) she was required to work for two weeks
without a day off; (c) her work schedule was changed to accommodate
another associate; (d) her request for a schedule change was denied;
(e) she was reprimanded for working 9.5 hours in one day; (f)  on one
occasion, she was written up in her communication record regarding her
request to a change in work schedule; (g)  she was assigned to stock
the freezers; (h) her personal job evaluation was submitted to the HR
office on the wrong form; (i)  she received her pay raise a month after
it was effective; (j) her hours were reduced; and (k) she was scheduled
to work three hours and a male was called in to work for six hours.

In its FAD, the agency concluded that complainant's allegation with
respect to her non-selection in March 1998, for the RPT Senior Sales
Associate position, was untimely, finding that it was not until October
1998 that complainant first contacted an EEO counselor.   The agency
also justified its non-selection of complainant on the ground that the
selectee (male) could do heavy lifting, and that the Selecting Official
(Shift Manager A) did not believe that complainant could perform heavy
lifting. The agency articulated legitimate, nondiscriminatory reasons
in response to each of the other allegations.

On appeal, complainant contends that although the agency told her about
her EEO rights, she was never told of the time limit for contacting
an EEO counselor.   Complainant thus emphasizes that the agency was
continually trying to conciliate with her and led her to believe that she
had to wait until conciliation failed before going to EEO for counseling.
Complainant also argues that EEO counseling started before the October
13, 1998, date delineated by the agency, but gives no date.
Complainant also argues that the FAD erred in its nondiscrimination
findings with respect to allegations (a), (f), (g), (k), and the
Wednesday night incident when she was scheduled to work although she
had requested off.


ANALYSIS AND FINDINGS
Timeliness

EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints
of discrimination be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
However, EEOC Regulations also provide that the agency or the Commission
shall extend the time limits when the individual shows that s/he was
not notified of the time limits and was not otherwise aware of them,
that s/he did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence s/he was prevented by circumstances beyond her control from
contacting the Counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.

Complainant, on appeal, emphasizes that she arrived in the United States
from the Philippines in December 1997, and that her job with the agency
was her first job in the United States.  She further argues that she was
never told of the time limit concerning EEO counselor contact, and that
the agency told her that the EEO process began when conciliation failed.
The agency does not dispute complainant's statements.  Accordingly,
we conclude that the agency's  dismissal of complainant's RPT Senior
Store Associate March 1998 non-selection allegation was error.

Sex Discrimination

In general, claims alleging disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S.  792 (1973).  A complainant must first establish
a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited reason was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978).  Next, the agency must articulate a legitimate,
nondiscriminatory reason for its action(s).  Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981).  After the agency has offered
the reason for its action, the burden returns to the complainant to
demonstrate, by a preponderance of the evidence, that the agency's reason
was pretextual, that is, it was not the true reason or the action was
influenced by legally impermissible criteria.  Burdine, 450 U.S. at 253.

Complainant may establish a prima facie case of discrimination in the
nonselection context by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was not selected
for the position; and (4) she was accorded treatment different from
that given to persons otherwise similarly situated who are not members
of her protected group.  Williams v. Department of Education, EEOC
Request No. 05970561 (August 6, 1998); Enforcement Guidance on O'Connor
v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002 (September
18, 1996).  Complainant may also set forth evidence of acts from which,
if otherwise unexplained, an inference of discrimination can be drawn.
Furnco, 438 U.S. at 576.

With respect to the March 1998 nonselection, it is undisputed that
complainant established a prima facie case.  The agency articulated
as its legitimate, nondiscriminatory reason for its action, that the
selectee was chosen because he could do heavy lifting.

The Commission notes that in nonselection cases, pretext may be found
where the complainant's qualifications are demonstrably superior to the
selectee's.  Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).  An
employer has the discretion to choose among equally qualified candidates.
Canham v. Oberlin College, 666 F.2d 1057, 1061 (6th Cir. 1981).

Complainant does not argue that she was at least as well or better
qualified than the selectee.  Complainant does not dispute that the
ability to do heavy lifting was desirable in performing the job.
Complainant does not indicate that she could do heavy lifting.

With respect to the three other RPT Senior Sales Associate positions which
subsequently became vacant, the agency indicated they were not posted
and remained vacant, and thus that complainant failed to establish a
prima facie case.  The agency indicated in the FAD that this was done for
financial reasons in an effort to cut costs.  It was not until January
1999 that the agency posted a RPT Senior Sales Associate position,
and complainant was selected for the position.

Complainant does not dispute that the RPT Senior Sales Associate positions
in issue were not posted and remained vacant.  Accordingly, we agree
with the FAD that complainant failed to establish a prima facie case.

Finally, we note that an employer has the discretion to determine how
best to manage its operations and may make decisions on any basis except
a basis that is unlawful under the discrimination statutes.  Furnco,
supra;  Nix v. WLCY Radio/Rayhall Communications, 738 F.2d 1181 (11th
Cir. 1984).  An employer is entitled to make its own business judgments.
The reasonableness of the employer's decision may of course be probative
of whether it is pretext.  The trier of fact must understand that the
focus is to be on the employer's motivation, not its business judgment.
Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979).

Reprisal

In general, claims alleging reprisal are examined under the tripartite
analysis first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973).  See Hochstadt v. Worcester Foundation for Experimental
Biology, Inc., 425 F.Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976) (applying McDonnell Douglas to retaliation cases).
A complainant must first establish a prima facie case of discrimination
by presenting facts that, if unexplained, reasonably

give rise to an inference of discrimination, i.e., that a prohibited
reason was a factor in the adverse employment action.  McDonnell Douglas,
411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Next, the agency must articulate a legitimate, nondiscriminatory reason
for its action(s).  Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).  After the agency has offered the reason for its
action, the burden returns to the complainant to demonstrate, by a
preponderance of the evidence, that the agency's reason was pretextual,
that is, it was not the true reason or the action was influenced by
legally impermissible criteria.  Burdine, 450 U.S. at 253; St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).

Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination.  Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas,
411 U.S. at 802).  Specifically, in a reprisal claim, and in accordance
with the burdens set forth in McDonnell Douglas, Hochstadt, and Coffman
v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20,
1997),  a  complainant  may establish a prima facie case of reprisal by
showing that: (1) she engaged in a protected activity; (2) the agency was
aware of her protected activity; (3)  subsequently, she was subjected
to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse action. The causal connection may be
shown by evidence that the adverse action followed the protected activity
within such a period of time and in such a manner that a reprisal motive
is inferred. Simens v. Department of Justice, EEOC Request No. 05950113
(March 28, 1996) (citations omitted).

We additionally note that the statutory retaliation clauses prohibit any
adverse treatment that is based on a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected
activity.  Petty slights and trivial annoyances are not actionable,
as they are not likely to deter protected activity.  More significant
retaliatory treatment, however, can be challenged regardless of the level
of harm.  As the Ninth Circuit has stated, the degree of harm suffered by
the individual “goes to the issue of damages, not liability.”  Hashimoto
v. Dalton, 118 F.3d 671,  676 (9th Cir. 1997).  Smith v. Secretary of
Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981) (“the questions of statutory
violation and appropriate statutory remedy are conceptually distinct.
An illegal act of discrimination–whether based on race or some other
factor such as a motive of retaliation – is a wrong in itself under
Title VII, regardless of whether that wrong would warrant an award of
[damages]”). The retaliation provisions set no qualifiers on the term
“to discriminate,” and therefore prohibit any discrimination that is
reasonably likely to deter protected activity.  A violation will be found
if an employer retaliates against a worker for engaging in protected
activity through threats, harassment in or out of the workplace, or any
other adverse treatment that is reasonably likely to deter protected
activity by that individual or other employees.  EEOC Compliance Manual
on Retaliation, No. 915.003, at 8-14 through 8-16 (May 20, 1998).

Complainant further alleges on appeal, that she was retaliated against
in not being selected for the three subsequently available RPT Senior
Store Associate positions (allegation (a) above, but not including the
March 1998 vacancy).  As previously indicated, the agency articulated a
legitimate, nondiscriminatory reason for its actions, i.e., for business
reasons it decided not to fill the vacancies.  Complainant has not
shown pretext.

With respect to allegation (f), complainant alleges she was written up by
Shift Manager B in a communication record regarding complainant's October
31, 1998, request for a change in work schedule.   Complainant requested
to change her work schedule for November 3, 1998, to work during the
morning, and not at night.  The Shift Manager A, in a notation dated
November 2, 1998, wrote that complainant called about complainant's
schedule, requested a schedule change, but that Shift Manager A could
not accommodate the request due to operational needs.  We fail to see
how this notation in any way reflected poorly on complainant to suggest
a retaliatory motive.

With respect to allegation (g) complainant indicates that she was
assigned by Shift Manager A to stock freezers on April 6, 1998, but
that she couldn't stock the freezers because she had a nose bleed.
Complainant argues that she was still made to stock the freezers even
after her nose started to bleed, but that she  brought in a medical
note on April 7, 1998, restricting her from exposure to extreme cold,
and that she has not thereafter been assigned to stock the freezers.
Shift Manager A stated that  she was not aware of complainant's medical
condition and that complainant willingly stocked the freezers and then
informed her of the medical condition when complainant's nose actually
started to bleed.  Shift Manager A stated that she told complainant
to stop stocking the freezers when her nose began to bleed, but
complainant continued to stock the freezers.  There is a credibility
question here.   Complainant presented no corroborating testimony.
We find that complainant has failed to show by a preponderance of the
evidence that her version of events was accurate.

With respect to allegation (k) complainant indicates that on November 12,
1998, she was scheduled to work 3 hours and a male was called in to work
for 6 hours.  Complainant asked to work for more hours this day, but was
informed that she was needed to stay at work.  The Store Manager stated
that complainant was scheduled to work for 25 hours that week and that
the male had only been scheduled for 22 hours that week.  In addition, the
Store Manager stated that someone was needed to work in coolers and that
complainant could not work in the coolers due to her medical condition.
Complainant argues on appeal that while she was scheduled for 25 hours she
called in sick for 6 of those hours and therefore only worked 19 hours.

As previously indicated, an employer has the discretion to determine
how best to manage its operations and may make decisions on any basis
except a basis that is unlawful under the discrimination statutes.
Complainant has not sufficiently shown that the agency's explanation
was unreasonable.  We find that complainant has failed to sufficiently
show by a preponderance of the evidence that the agency's explanation
was a pretext for retaliation.

With respect to complainant's allegation that she was scheduled to work
on a Wednesday night that she had requested off to attend an important
church meeting, complainant's appeal suggests that this was a one-time
incident.  Complainant further indicates that her request for days off
on Wednesdays was subsequently granted. We thus conclude that complainant
has not sufficiently shown that the Wednesday night incident was motivated
by reprisal.

CONCLUSION

Therefore, after a careful review of the record, including complainant's
contentions on appeal, we AFFIRM the FAD.


STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).  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 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).


COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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.    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 (Z1199)

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:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


October 10, 2001
Date





1  Complainant does not allege discrimination on the basis of religion.

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