0120112092
03-13-2012
Salah Ibrahim, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Salah Ibrahim,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120112092
Hearing No. 520-2009-00260X
Agency No. FSIS-2008-00596
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 8, 2011 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Supervisory Consumer Safety Inspector, GS-13, at the Agency's New York District Office in Albany, New York.
On July 12, 2008, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the bases of race (Arab), national origin (Egyptian), and religion (Islam) when:
on March 18, 2008, he was not selected for the position of Deputy District Manager, GS-0340-14, advertised under Vacancy Announcement (VA) Nos. FSIS-MMP-2007-1382 and FSIS-MMP-2008-0360.
Following an investigation, Complainant requested a hearing before an Administrative Judge (AJ). A hearing was held on September 15, 16 and 17, 2009. The AJ issued a decision on January 13, 2011, finding no discrimination. The AJ found that Complainant established a prima facie case of race, national origin and religion discrimination. The AJ nevertheless found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant. The AJ further found that Complainant did not establish that more likely than not, the Agency's articulated reasons were a pretext to mask unlawful discrimination. Specifically, the AJ found that the selecting official stated that the selectee was the best qualified candidate based on work experience and strong leadership skills.
In September 2007, the Agency posted two Deputy District Manager (DDM) positions for its Albany District Office under VA No. FSIS-MMP-2007-1382. Complainant applied for one of the vacancies and was interviewed by a panel. The AJ noted that the panel conducted Behavioral Event Interviews (BEIs) and ranked the candidates according to responses to five questions. The panel then forwarded a comprehensive recommendation to the selecting official (SO). The panel recommended Complainant and a named white male (M1) for the subject positions. The AJ noted that although SO offered M1 the subject position, M1 declined it for personal reasons. After M1 declined the offer, SO offered it to a female candidate from a non-competitive certificate. The AJ noted that during the relevant time, Complainant did not challenge either candidate's selection.
Further, the AJ noted that upon reviewing the remaining candidates for the second position, SO concluded that none of the candidates possessed the knowledge, skills and abilities he sought. Consequently, SO re-announced the subject position in December 2007 under VA No. FSIS-MMP-2008-0360. All previous candidates still interested in the subject position were required to re-apply. Complainant re-applied and was interviewed in January 2008, by the new panel which included the newly hired DDM (DDM), also Complainant's supervisor, and a named male DDM (DDM1). Following the interviews, the panel recommended selectee for the subject position, and SO accepted the recommendation. The AJ further noted that SO forwarded the panel's recommendation and his selection to his supervisor, the concurring official (CO), in February 2008 for his concurrence. The AJ noted that CO did not concur but asked SO to justify and explain the selection in greater detail.
The AJ noted that SO then asked DDM and DDM1 to reevaluate the candidates to give more depth and substance to their conclusions. The AJ noted that following the reevaluation, DDM and DDM1 reversed their initial determination and recommended Complainant as more qualified that the selectee, and forwarded a memorandum to SO. The AJ noted that in spite of the panel's recommendation, SO sent a memorandum to CO in March 2008 recommending the selectee for the subject position and again sought CO's concurrence. SO did not address the panel's findings in his memorandum. The AJ noted that in March 2008, SO announced the selectee as the new second DDM.
The AJ noted that during his testimony, SO stated that he asked one of the deputies (D1) to create the protocol for the interview panel, follow up with the process with the panelists and "coordinate the whole thing from the beginning until the end until I get the recommendation. And I laid out the protocol, and then he developed the protocol from the applications [D1] was going to have the panel members review, came up with the BEI questions." SO stated that following the interviews for the first DDM position, he received the panel's recommendation. SO stated that in its recommendation, the panel "really didn't say that we were recommending any candidate. Basically they provided me with a score and a narrative, and based on the narrative, [M1] was the person with the. . . highest score and he had the best narrative, and the narrative actually was in line with my working knowledge of [M1's] attributes . . . ."
SO stated that he offered the subject position to a male candidate but that he declined it due to personal reasons. SO stated he then evaluated the remaining candidates from the non-competitive list because "she was a Deputy District Manager already. She had, I believe she had five years of, as a person in that position, and I had worked with her. I mean, she - - I had worked with her in Philadelphia district, but she . . . had the experience and the credentials already working as a Deputy District Manager."
SO testified as for the remaining candidates, he "was looking for a person who had the highest leadership skills. We were going through a lot of challenges at this time in the District, and I needed a person who had the highest leadership skills, who could lead people, who could promote change and be results-drive, and based on that, I decided to re-announce the position." SO stated that because the remaining candidates did not have the attributes that he was looking for, he decided to re-announce the subject position. SO stated that after he asked Human Resources to re-announce the subject position, he followed up with the remaining candidates "who had applied that. . . basically that you need to re-apply if you would like to be considered for the position. . . so that they would know I'm announcing the position, so they would know that if they wanted to be considered they needed to apply for the position."
SO stated that he implemented a new panel by going outside of his district "because my deputies weren't interested in doing it." SO stated that he asked DDM and DDM1 to serve on the panel. SO further stated that he gave the new panel the certificate and "they created their own protocol, their own core questions to evaluate the BEI questions and conducted the interviews and provided me with a recommendation." SO stated that he then prepare a memorandum for CO stating that he was in agreement with the panel's recommendation that the selectee should selected for the subject position, and requested his concurrence. After CO requested information about the selection process, SO directed the panel to forward a recommendation "based on evaluating all of the concerns providing clarification of what [CO] wanted, so basically the whole process was transparent, and it's clear, and it paints a clear picture."
SO stated that during the reevaluation of the candidates, the panel changed its recommendation by recommending Complainant for the subject position, and the selectee as a secondary candidate. SO stated that after receiving the panel's memorandum, he added a conclusion in the memorandum. Specifically, SO stated "I hadn't changed what the deputies wrote. I put conclusion to that memo stated that based on the challenges that we were going through in the District and the highest leadership skills that I was looking for, the BEI that the deputies did and the evaluation that they provided and the working knowledge of the candidates, came through in [Selectee] as the attributes and leadership skills that I was looking for, and so I had recommended [Selectee]."
SO stated that based on his experience working with Complainant and selectee, along with the information provided in the BEI interviews, the selectee was the stronger candidate. Specifically, SO stated that when he was the DDM at the Philadelphia District, the selectee was an Enforcement Investment Analysis Officer. SO stated that when he assigned projects to selectee projects, he "would take over the project, assess the information, and come up with a recommendation and/or if it's a project of a timeline gauntlet that he needed to get certain things, he would follow through, coordinate it with fellow employees, get it done, have them buy into it, and it would be done in a timely fashion, if not before the time. He was also recognized by his peers as a leader, and they would come to him for guidance, for information, for feedback."
The AJ noted even though SO had little personal contact with Complainant during the relevant time, he had concerns about Complainant's leadership skills. The AJ noted that SO testified that on one occasion he held a conference call with the front-line supervisors, attended by Complainant, to update them on a new Agency initiative. Specifically, SO stated "we were trying to implement Notice 6507 and we had a conference call, I had a conference call because it was a very lengthy document, it was a very comprehensive document, it was not an easy project." SO stated that after explaining the process and what they needed to do, Complainant "spoke up and provided a whole negative aspect that, why it can't be done in a time gauntlet or the time frame that has been stated in the directive because the - -." SO stated that he found Complainant had a "very negative attitude how it couldn't be done."
SO stated that on another occasion, he received a request from headquarters for additional information about a plant that had been audited by an FSIS investigator. SO stated that he asked Complainant to gather information pursuant to the audit. So stated that instead of complying, Complainant stated that he could not procure the necessary date because the investigation was before his time and that the investigator had been untruthful in his report. Specifically, SO stated that Complainant replied "the investigator lies. I said, [Complainant], can't go with that answer because if that was the issue, you should have raised it. . at that time. That is now an official document. I need to follow up based on what it state[s], so I need an answer...[Complainant] was very unhappy for doing that. He was very dissatisfied in follow up, but eventually he did follow up, and I did get the answer. They weren't satisfied with the answer, headquarters, but what happened is I said to them that I understand the situation and I understand what he's saying that occurred before his time, and what I will do is I will have another food safety assessment [and] put this on high priority status and have your assessment done there again."
Moreover, SO stated that Complainant's race, national origin, and religion were not factors in his determination in his decision to select selectee for the subject position.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, argues that the AJ erred in finding no discrimination. For instance, Complainant argues that the AJ "ignored direct evidence of discrimination; considered items of circumstantial evidence individually rather than cumulatively; and "did not explain why he credited SO's justifications for his actions, when he believed several other witnesses' testimony rather than the SO's, when the two were in conflict."
Complainant further argues that the AJ did not provide any explanation "for why he believed the SO's testimony that his decision was not based on discrimination. The SO was a Pakistani Muslim who acted to surround himself with white, American top-level managers. All of the GS-12 supervisors that the SO selected would have been supervisors in the slaughter plants, whose daily duties would include examining slaughtered carcasses for disease. This is a fact that should not be ignored and [Complainant] would have testified to it in rebuttal."
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
March 13, 2012
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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