VI. Specific case. From examination of the evidence placed on the record and the
reports rendered under oath, it is concluded that the protected person was
appointed on an interim basis to the position of Miscellaneous Worker 1 within the
defendant Ministry; subsequently, in order to fill the vacant position, an external
competitive hiring process was launched in which Guevara Díaz had full
opportunity to participate. As part of the process, special and specific tests were
applied due to his disability, in compliance with the regulations in force. The tests
were also evaluated by the psychologist of the Technical Unit of Medical Services
of that body. The appellant was eligible to hold the position and participate fully
in the process to select the candidate to hold the position in question, since he
made the respective short list. From the foregoing, it can be deduced that the
appellant had access to the position he sought on equal footing with the other
applicants, there being no actions in the procedure to his detriment that could be
considered discriminatory. Although it is true that there is a note from the head
of the maintenance of the Ministry of Finance that mentions the problems the
appellant has with his disability, this Court has been informed under oath (with
the consequences of law) that the selection to fill the vacant position was made
prior to the letter in question and that it had no influence on the selection of the
ideal person for the position. Thus, and in accordance with the established criteria
of this Constitutional Court, constitutional protection is satisfied in the protection
of the interested party’s ability to participate on an equal footing by forming part
of the respective short list and it does not fall to this Court to review the legality,
timeliness, or appropriateness of the decision of the competent bodies to make
the choice they have, having done so in the exercise of their discretionary
authorities.
VII. In view of the foregoing considerations, the conclusion is reached that the
constitutional rights of the appellant have not been threatened or violated by
the facts in question. This is without detriment to challenges to the legality of
the procedure used to select the candidates to fill the position sought by Mr.
Guevara Díaz in the corresponding administrative instance, which is beyond the
competence of this Constitutional Court.
D. Proceeding before the National Directorate of Labor Inspection
and letter of the National Directorate of Social Security
39.
On August 6, 2003, the General Secretary of the Employees Union of the Ministry
of Finance (hereinafter “General Secretary of the Union”) filed a complaint with the
National Directorate of the General Labor Monitor (hereinafter “National Labor
Directorate”) on behalf of Mr. Guevara alleging discrimination in the workplace.33 On
November 26, 2003, the complaint was declared inadmissible through resolution 165703, upon finding it had not proven that there had indeed been discrimination committed
in the workplace by the Ministry of Finance. On January 27, 2004, the General Secretary
of the Union filed an appeal for reversal with subsidy appeal and absolute nullity. On
February 3, 2004, the National Directorate of Labor declared the appeal for reversal
admissible.34 In its resolution, it stated the following:
Following analysis of the appeal for reversal with subsidy appeal and absolute
nullity against resolution DNI-1657-2003, it is decided to revoke the resolution
based on the arguments given. Regarding the other claims, no ruling is issued
Cf. Complaint from the Union of Employees of the Ministry of Finance filed with the Director General of
the Labor Inspection on August 6, 2003 (evidence file, folio 1009).
33
Cf. Resolution DNI -277-04 of the National Directorate of the General Labor Monitor of February 3, 2004
(evidence file, folio 1013).
34
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