01a55500
04-27-2006
Nasser Almutairi, Complainant, v. Kenneth Y. Tomlinson, Chairman, Broadcasting Board of Governors, Seth Cropsey, Chairman, International Broadcasting Bureau, Appeal No. 01A55500 Agency No. OCR0412
Nasser Almutairi v. International Broadcasting Bureau
01A55500
April 27, 2006
.
Nasser Almutairi,
Complainant,
v.
Kenneth Y. Tomlinson,
Chairman,
Broadcasting Board of Governors,
Seth Cropsey,
Chairman,
International Broadcasting Bureau,
Appeal No. 01A55500
Agency No. OCR0412
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 complainant was an applicant for employment with
the Broadcasting Board of Governors, VOA - Middle East Radio Network
(MERN). After complainant was not selected for certain positions which
he sought, he sought EEO counseling and subsequently filed a formal
complaint on April 26, 2004, alleging that he was discriminated against on
the bases of race (Black), national origin (non-Lebanese/Yemen), color
(dark skin), and disability (leg injury) when he was not selected for
the position of International Broadcaster (Arabic), GS-12, under Vacancy
Announcement Nos. M/P-04-22 and M/P-03-02.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
initially requested a hearing, however, on March 18, 2005, the AJ
dismissed for failure to timely exhaust administrative remedies,
all claims regarding the non-selection under Vacancy Announcement
No. M/P-03-02. On June 10, 2005, the AJ dismissed complainant's hearing
on the remaining issue (the non-selection under Vacancy Announcement
No. M/P-04-22), based on complainant's failure to meet the deadline for
submitting his Pre-hearing statement and witness list, and returned the
file to the agency for issuance of a final decision.
In its FAD, the agency concluded that complainant failed to establish a
prima facie case of race, color or national origin discrimination because
the selectee is in complainant's three protected classes; namely, Black
, dark skin and non-Lebanese.<0> The FAD also found that complainant
failed to establish a prima facie case of disability discrimination
because he did not present adequate medical evidence to show that he
is an individual with a disability pursuant to the Rehabilitation Act.
The FAD nevertheless assumed arguendo that complainant established a prima
facie case, and further found that the agency articulated a legitimate,
nondiscriminatory reason for its action; namely, the selecting official
testified that he based his decision on the candidate's background and
experience, as reflected in her resume, and on his personal observation
of the quality of her work. The FAD noted that the selectee's resume
indicates that she had approximately 13 years of radio broadcasting
experience working for the agency's Voice of America Arabic and Radio
SAWA services. The FAD concluded that complainant failed to show that
the agency's articulated reason was a pretext for discrimination.
On appeal, complainant contends that the AJ's cancellation of the
hearing was improper as to the nonselection for Vacancy Announcement
Nos. M/P-04-22. Complainant does not specifically dispute the
agency's dismissal of the issue concerning his nonselection under
Vacancy Announcement No. M/P-03-02 on the basis of �failure to
exhaust administrative remedies.� Accordingly, this decision will
not address the dismissal of the issue concerning his nonselection
under Vacancy Announcement No. M/P-03-02, nor the merits of that claim.
Complainant contends on appeal that he �missed the hearing opportunity
due to medical reason for which I have sent a medical report to you.�<0>
Additionally, as to the merits of the claim, complainant contends that he
is an individual with a disability, and that he has a legitimate claim of
discrimination. Complainant contends that the agency has unfair hiring
practices and discriminates against highly qualified U.S. citizens and
legal residents, including persons with disabilities. Complainant also
submits a witness list and additional supportive evidence, including
an audio tape which complainant says contains a message in Arabic from
a Director at Radio Sawa, recorded on March 27, 2004, in response to
complainant's inquiry as to why he was not selected on March 10, 2004.
Complainant contends that the Director states on the tape that according
to policy, complainant and his son cannot work together. Complainant
also submits a witness statement from an individual who states that she
has noted unfair practices committed by individuals at Radio SAWA and
Alhura TV. Complainant also contends that another witness can not come
forward for fear of retaliation. Complainant contends that he was told to
make himself available, and then subsequently told he was not selected.
He also asserts that he heard the selecting official state that he did
not want any more disabled staff at the facility. Complainant contends
that the manager later tried to cover up his statement by explaining
that he meant that all the staff are disabled in that they are not
doing a good job. Complainant contends that he was also discriminated
against because he comes from Yemen, not Lebanon. Complainant also
contends that the agency hires individuals in order to help them get
green cards and citizenship. Finally, complainant contends that the
selecting official was not qualified to make selections. The agency
requests that we affirm its FAD.
Initially, as to complainant's contention that the cancellation of
the hearing was improper, we note that Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e); Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-
MD-110) at 7-8 to 7-14 (revised November 9, 1999); Bennett v. Department
of the Navy, EEOC Request No. 05980746 (September 19, 2000). We find
that in this case, the AJ did not abuse his discretion in cancelling
the hearing. In so finding, we note that the medical report concerning
complainant's vision does not explain why complainant could not timely
comply with the AJ's Orders to provide a Pre-hearing statement and
witness list.
As this is an appeal from a FAD issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. � 1614.405(a). The allocation
of burdens and order of presentation of proof in a Title VII case
alleging disparate treatment discrimination is a three step procedure:
complainant has the initial burden of proving, by a preponderance of
the evidence, a prima facie case of discrimination; the burden then
shifts to the employer to articulate some legitimate, nondiscriminatory
reason for its challenged action; and complainant must then prove, by a
preponderance of the evidence, that the legitimate reason offered by the
employer was not its true reason, but was a pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Assuming complainant established a prima facie case of discrimination
on all of the alleged bases, we find that the agency has articulated a
legitimate, nondiscriminatory reason for its action; namely, the selecting
official testified that all of the candidates (including complainant)
listed on the certificates met their standards. Report of Investigation
(ROI), Exhibit 7. The selecting official stated that he based his
decision on the selectee's background and experience, as reflected in her
resume, and on his personal observation of the quality of her work. Id.
The selecting official also stated that he determined that complainant's
professional broadcasting experience was not as varied and broad as
the selectee's. Id. In an attempt to establish pretext, complainant
states in his rebuttal statement, that the �selection was based on [the
selecting officials'] own temperament, disposition and over all based
on favoritism and nepotism.� ROI, Exhibit 8. Despite complainant's
explanations of why he believes the selection was discriminatory, along
with the witness statement presented on appeal, the Commission finds
that complainant has simply failed to meet his burden of proving, by a
preponderance of the evidence, that agency's reason was a pretext for
discrimination on any alleged basis. As to complainant's allegation
that the selecting official stated �we don't need more people with
disabilities here,� we note that there is no corroborating evidence in
the record that such statement was actually made. We note that as we
do not have the benefit of an AJ's findings after a hearing, we can only
evaluate the facts based on the evidence presented to us.
We note additionally that the agency has broad discretion to set policies
and carry out personnel decisions, and should not be second-guessed by
the reviewing authority absent evidence of unlawful motivation. Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek
v. Department of the Treasury, EEOC Request No. 05940906 (January 16,
1997). Complainant may be able to establish pretext with a showing that
his qualifications were plainly superior to those of the selectee. Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995);
Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). Complainant
contends that he is more qualified than the selectee because he has a
degree in journalism, while the selectee's degree is in African studies.
He also notes that he has more relevant experience (22 years of journalism
experience), and the required educational background. The Commission
finds that complainant has not shown that his qualifications rose to the
level of being plainly superior to those of the selectee's. Accordingly,
after a careful review of the record, 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
April 27, 2006
__________________
Date
0 1Record evidence indicates that the selectee is Sudanese.
0 2The record contains a medical report, with an examination date of May
12, 2005, concerning medical conditions related to complainant's vision.