Molly Muro v. Small Business Administration
01A22644
September 4, 2003
.



Molly Muro,
Complainant,

v.

Hector V. Barreto,
Administrator,
Small Business Administration,
Agency.

Appeal No. 01A22644

Agency No. 12-00-007

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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. § 1614.405.  For the
following reasons, the Commission affirms the agency's final decision.

The record reveals that during the relevant time, complainant was
employed as a Loan Service Assistant GS-7 at the agency's Santa Ana
District Office.  Complainant sought EEO counseling and subsequently filed
a formal complaint on December 13, 1999 and an amendment to the complaint
on January 23, 2001.  She alleged that she was discriminated against when:

 (1) she was not selected for the position of Administrative Officer
 under Vacancy Announcement 99-188K based on race (Hispanic/Latina)
 and age (D.O.B 9/20/48 (age 52 at the relevant time);
 she was not selected for the position of Loan Specialist under Vacancy
 Announcement 010-182-KO based on race, age, sex (female) and reprisal
 for prior EEO activity.

The agency issued a final decision finding that it did not discriminate
against complainant on any of the alleged bases. <1>  More specifically,
the agency found that complainant stated a prima facie case of
discrimination based on age and race in the selection for Administrative
Officer, because even though complainant was qualified for the position,
the selectee, a White female, born in 1954, was selected instead.  The
agency concluded, however, that it stated legitimate non-discriminatory
reasons for its selection which complainant failed to show were a
pretext for discrimination.  In particular, the agency contended that
complainant was not on the Roster of Eligibles sent to the selecting
official (S/O) and was not considered as a result, because of an error
on the part of the personnel specialist in the announcement process.
S/O selected the only candidate who appeared on the Roster and who had
the necessary qualifications and experience to perform the job.

Addressing the second selection for Loan Specialist, the agency found
that complainant stated a prima facie case on each of the alleged bases
because she was qualified for the position, she was not selected and a
White male who was substantially younger, was reassigned to the position.
The agency also concluded that complainant stated a prima facie case of
retaliation because she engaged in protected activity by way of her first
complaint filed in December 1999, S/O was aware of complainant's protected
activity because she participated in mediation of complainant's first
complaint in November 2000, and the decision not to select complainant
occurred one month later in December 2000.  The agency decided, however,
that it had legitimate non-discriminatory reasons for its selection which
complainant failed to demonstrate were a pretext for discrimination.
Regarding her selection, S/O stated that she had contemplated hiring
an employee who had the necessary capabilities and knowledge, through a
reassignment, even before the announcement was issued.  According to the
agency's final decision, complainant did not rebut the evidence of the
selectee's qualifications or that his transfer had been considered before
the position was announced.  Having so failed, the agency concluded that
complainant did not establish by a preponderance of the evidence that
the selection was motivated by discrimination.

On appeal, complainant contends that the error in the announcement
procedure for the position of Administrative Officer was an indication
that the selection was discriminatory.  She argues that she sent her
application in time to be considered under the revised announcement
which extended the application period to August 10, 1999.  Complainant
contends that the personnel specialist (PS) extended the time but did
not forward her application in time to be considered.  This, she argues,
was discriminatory.

In the second selection, complainant questions the announcement
process because she was not given priority consideration and because
the announcement was never formally cancelled.  She also contends that
the agency's selection of an employee from another office was not
cost-effective  which is evidence that the agency's reasons for the
selection was a pretext for discrimination.  The agency requests that
we affirm its FAD.

 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.  McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see, Hochstadt v. Worcester Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases).  First, complainant must 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 consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802.  Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions.  Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).  If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination.  Id. at 256.

In our review of the record of the first selection for the position
of Administrative Officer, we conclude that complainant failed to
demonstrate that the agency's reasons explaining the errors in the
announcement process, and in making the selection were a pretext for
discrimination based race or age.  PS explained that she re-announced
the position of Administrative Officer because of a computer error
message she received suggesting that the announcement had not been
properly sent.  She further stated that because of the error message,
she extended the period for accepting applications to August 10, 1999.
PS admitted that she erred in relying on the previous closing date of
August 6, 1999 which caused her to transmit the certificates of eligibles
before receiving complainant's application.  Realizing her error and the
fact that she did not receive complainant's application until after she
forwarded the certificate of eligibles, she sent complainant a letter
giving her priority consideration for the next open announcement for a
similar position.

Although complainant challenges PS's explanation as a pretext for
discriminatory animus, we are not persuaded that the errors PS committed
were evidence of discrimination surrounding the selection.  There is
no evidence that S/O directed PS in any way in order to circumvent
consideration of complainant's application.  Therefore, we conclude that
complainant did not demonstrate by a preponderance of the evidence that
the selection for the position of Administrative Officer was based on
discriminatory motives.

Turning to the second selection, the evidence establishes that the
agency announced the position of Loan Specialist GS-1165-9/11/12
beginning October 25, 2000, with a closing date of November 7, 2000.
S/O stated that even though she requested this announcement be issued,
she had committed to accepting a Loan Specialist transfer from the Miami
District Office before she even received the certificates of eligibles.
She further stated that she was unsure whether the vacancy announcement
was cancelled but that she considered more qualified candidates
than complainant  from another announcement for Economic Development
Specialists.  Her reason for agreeing to  the reassignment of an employee
to fill the position was that he had the capabilities and knowledge about
liquidation issues and "could make an immediate contribution to reducing
[the] growing liquidation portfolio."  Complainant does not contest this
employee's qualifications or offer any evidence that she was much more
qualified such that S/O's reasons are called into question.  The agency
has the discretion to choose among equally qualified candidates so long
as the decision is not premised on an unlawful factor. See Burdine,
450 U.S. at 258-259; Mitchell v. Baldridge,
759 F.2d 80 (D.C. Cir. 1985).  In non-selection cases, pretext may be
found where the complainant's qualifications are demonstrably superior
to the selectee's qualifications. Bauer v.
Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).  Here, complainant failed
to show that S/O's reasons for deciding to reassign an employee who had
a background in the relevant area of responsibility, were not believable,
or that she was motivated by discrimination based on complainant's race,
age, sex or in reprisal for protected activity.

Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, 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

September 4, 2003
__________________
Date






1The record does not reflect documentation
that the agency notified complainant of her right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency.  Complainant, however, does not raise this as
an issue on appeal, therefore, we will not address it in the decision.

�