01995639
09-07-2001
Ghassan K. Sabbagh, Complainant, v. Marc B. Nathanson, Chairman, United States Information Agency, (Broadcasting Board of Governors, International Broadcasting Bureau), Agency.
Ghassan K. Sabbagh v. United States Information Agency
01995639
September 7, 2001
.
Ghassan K. Sabbagh,
Complainant,
v.
Marc B. Nathanson,
Chairman,
United States Information Agency,
(Broadcasting Board of Governors,
International Broadcasting Bureau),
Agency.
Appeal No. 01995639
Agency No. OCR-98-05
DECISION
Complainant timely initiated an appeal from a final agency decision
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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted for the Commission's de novo review pursuant
to 29 C.F.R. � 1614.405. Complainant alleged that he was discriminated
against on the bases of national origin (Lebanese) and age (DOB: 09/06/31)
when he was not selected for the GS-14 position of Supervisory Radio
Broadcaster in May 1997. For the following reasons, we affirm the
agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Chief of Field Services of the Arabic Branch in the Middle East
and South Asia Division at the agency's Voice of America, International
Bureau of Broadcasting. Believing the agency discriminated against him
as referenced above, complainant sought EEO counseling and subsequently
filed a formal complaint on October 14, 1997. 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 requested that the agency issue a
final decision. It is from this decision complainant now appeals.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue), the Commission agrees with the agency that
complainant established a prima facie case of both age and national
origin discrimination because the selectee was an American who was twenty
eight years younger than complainant. The Commission also agrees that
complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions, namely that the
selectee had demonstrated excellent supervisory and management skills
and a "good program background" were a pretext for discrimination.
In reaching this conclusion, we note that the record does not support a
finding that complainant's qualifications were "so plainly superior as
to require a finding of pretext." Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). When choosing among highly qualified candidates for a
position, employers generally have broad discretion to set policies and
make personnel decisions, and should not be second-guessed by a reviewing
authority, absent evidence of unlawful motivation. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 259 (1981). As evidence of
unlawful motivation, complainant alleges that the agency's decision to
eliminate the requirement that a candidate have (1) fluency in Arabic;
and (2) knowledge of the customs, politics, and economics of Arab world
countries is evidence that the agency favored native born Americans.
However, the agency contends that while skill in the Arabic language
was considered a plus, the Branch was in more dire need of a supervisor
who could deal effectively with a disaffected staff and move the Branch
toward better programming. The agency also noted that it was not the
Supervisory Radio Broadcaster's job to listen to broadcasts or edit
reports, rather it was to manage the Branch and leave those tasks to
subordinate supervisors. Moreover, although complainant believed he did
"wonderfully" during the interview, one of the selection panel members
described his performance as "abysmal," noting that his responses had
nothing to do with the questions asked. We also note that it was his
poor performance during an interview which disqualified him as a serious
candidate for the same job when it was posted in 1994.
Therefore, after a careful review of the record, including complainant's
contentions on appeal and arguments and evidence not specifically
addressed in this decision, we affirm the agency's final decision.
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 7, 2001
__________________
Date