0120070561
09-15-2008
Darryl Ahmad, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Darryl Ahmad,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120070561
Hearing No. 210-2006-00015X
Agency No. HS05TSA001760
DECISION
On November 9, 2006, complainant filed an appeal from the agency's October
10, 2006 final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
affirms the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant was an
unsuccessful applicant for employment. On October 13, 2005, complainant
filed an EEO complaint alleging that he was discriminated against on
the basis of his race (African-American) when: (1) on July 6, 2004, he
was not selected for the position of Assistant Federal Security Director
for Law Enforcement (AFSD) at Chicago O'Hare International Airport under
vacancy announcement number TSA-04-1281; and (2) on December 7, 2004,
he was not selected for the position of Criminal Investigator under
vacancy announcement number TSA-04-3548.1
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ assigned to the case granted the agency's
February 28, 2006 motion for a decision without a hearing and issued
a decision on August 21, 2006. The AJ found that, after viewing the
evidence in a light most favorable to complainant, a decision without
a hearing was appropriate as there were no genuine issues of material
fact. Specifically, the AJ found that assuming, arguendo, complainant
established a prima facie case of race discrimination, the agency
nonetheless articulated legitimate, nondiscriminatory reasons for its
actions that complainant failed to show were pretextual. The agency's
final order adopted the AJ's finding of no discrimination. On appeal,
complainant contends that the AJ erred in issuing a decision without a
hearing as there are genuine issues of material fact. Complainant also
reiterates his contention that the agency did not select him for either
of the positions at issue because of unlawful race discrimination.
ANALYSIS AND FINDINGS
As an initial matter we note that, 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 Commission's regulations allow an AJ to issue a
decision without a hearing when he or she finds that there is no genuine
issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of
the Federal Rules of Civil Procedure. The U.S. Supreme Court has held
that summary judgment is appropriate where a court determines that, given
the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court's function is not to weigh the evidence but rather
to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary
judgment stage and all justifiable inferences must be drawn in the
non-moving party's favor. Id. at 255. An issue of fact is "genuine" if
the evidence is such that a reasonable fact finder could find in favor of
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome
of the case. If a case can only be resolved by weighing conflicting
evidence, it is not appropriate for an AJ to issue a decision without
a hearing. In the context of an administrative proceeding, an AJ may
properly issue a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003).
After a careful review of the record, the Commission finds that a decision
without a hearing was appropriate, as no genuine dispute of material
fact exists. To prevail in a disparate treatment claim such as this,
complainant must satisfy the three-part evidentiary scheme fashioned
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must generally establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
In a non-selection case, pretext may be demonstrated by a showing that
complainant's qualifications are observably superior to those of the
selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
Here, we concur with the AJ's finding that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The record
reflects that, with respect to the AFSD position, the selecting official
(SO1) and four of his staff members reviewed the applications of the best
qualified candidates. (Report of Investigation, Exhibit F2; Agency's
Motion for Summary Judgment, Exhibit D). The record further reflects
that the SO1 asked each of his staff members to provide a listing of
their three top recommended candidates, and that the selectee was the
only candidate to appear on the recommendation lists of all the staff
members. Id. The SO1 stated that the selectee was the best qualified
candidate for the AFSD position because of his extensive relevant
experience with the agency, his seventeen years of experience working
with law enforcement, and his master's degree. The record reflects
that, in contrast, complainant did not have the same level of education,
nor the level of relevant experience. Id.
With respect to the criminal investigator position, the record shows
that the selecting official (SO2) was originally provided with a listing
of twenty-four applicants. (R.O.I., Exhibit F4; F5; F6). The SO2
then chose the six best qualified applicants to interview based upon
education, years of experience as a criminal investigator, and internal
affairs experience. Complainant was not among the best qualified because
he did not have as much education or criminal investigator experience
as other candidates. Id. However, based upon a recommendation from one
of the SO2's co-workers, complainant was provided with an interview for
the position at issue. Id. Following the interviews, the SO2 chose the
selectee for the criminal investigator position. The SO2 stated that
the selectee was the best qualified candidate based upon his twenty-five
years of experience as a criminal investigator, his bachelor's degree,
and his more than twenty years of experience as a Secret Service Agent.
The SO2 stated that complainant had significantly less experience
as a criminal investigator and less educational experience. Id.
We concur with the AJ's finding that complainant proffered no evidence
from which a reasonable fact-finder could conclude that the agency's
actions were motivated by discriminatory animus toward his race, or
that the agency's articulated reasons for its actions were a pretext
for unlawful discrimination.
We find that viewing the record evidence in a light most favorable to
complainant, there are no genuine issues of material fact. We further
find that the AJ appropriately issued a decision without a hearing
finding no discrimination. Therefore, we discern no basis to disturb
the AJ's decision and the agency's final order is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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 15, 2008
__________________
Date
1 In his formal complaint, complainant also alleged that he was subjected
to unlawful discrimination on the basis of his religion, and that he was
discriminated against on the bases of his race and religion when he was
not selected for the position of Assistant Federal Security Director at
the Chicago Midway Airport under vacancy announcement number TSA-04-1284.
Complainant subsequently withdrew the basis of religion and the additional
non-selection claim.
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0120070561
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070561