01A21459_r
08-20-2002
Kamil A. Mesays, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Kamil A. Mesays v. Department of Justice
01A21459
August 20, 2002
.
Kamil A. Mesays,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A21459
Agency No. F-00-5516
Hearing No. 100-01-7474X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his formal complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant claims that he was discriminated against on the bases of
disability (depression) and national origin (Palestinian) when, on or
about June 26, 2000, complainant was informed that the did not pass the
agency's Arabic Language Examination, and that because he did not pass
the examination, his application for employment as a Language Specialist
and/or Contract Linguist was ineligible for further consideration.
For the reasons described below, the Commission affirms the agency's
final order.
The record reveals that complainant, an applicant for a Language
Specialist and/or Contract Linguist position with the agency, filed a
formal EEO complaint with the agency on September 25, 2000. At the
conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ).
The AJ determined that there were no material facts in dispute; therefore,
the AJ issued a decision without a hearing, and issued a finding of
no discrimination. The AJ determined that the agency articulated a
legitimate, non-discriminatory reason for informing complainant that
he did not pass the agency's Arabic Language Examination. The record
established that on June 8, 2000, complainant took the Federal Bureau
of Investigation (FBI) Defense Language Proficiency Test (DLPT).
The DLPT is a standardized, multiple choice test prepared and validated
by the Department of Defense and used by the FBI for over ten years.
The answers are either right or wrong, and are scored by a machine to
eliminate human error. The test results indicated that complainant
passed the reading comprehension test, but failed the listening test.
In response to complainant's request for a review of his test, the
test was scored again by a machine and by hand, using an answer key.
All three objective evaluations by the agency revealed the same score by
complainant, which was a failing score of �40," where a minimum of �45"
was required to pass the test. The AJ found that complainant was unable
to establish that the agency's proffered legitimate, non-discriminatory
reason for complainant's failure of the test was pretextual. The agency's
December 17, 2001 final order implemented the AJ's decision. Complainant
makes no new, persuasive arguments on appeal.
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. 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, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission assumes, without finding, that complainant is an individual
with a disability within the meaning of the Rehabilitation Act, and
we assume, without finding, that complainant has established a prima
facie case of disability discrimination.<1> We also assume, arguendo,
that complainant established a prima facie case of discrimination on the
basis of national origin. Nevertheless, the agency has articulated a
legitimate, nondiscriminatory reason for its action, and complainant has
failed to rebut the agency's proffered reason. The evidence demonstrates
that complainant did not pass the listening comprehension portion of the
DLPT. This is a standardized, multiple choice test that was scored three
times, and each time revealed the same, failing score for complainant.
An applicant is required to pass both the reading comprehension and the
listening portions of the DLPT. Moreover, pursuant to complainant's
request, the agency
also graded complainant's written translation test, and he did not receive
a passing score on that portion of the examination either. Complainant
failed to present any evidence that the agency's actions were motivated by
discriminatory animus towards complainant's disability or national origin.
Therefore, after a de novo review of the record, we find that complainant
has failed to establish the existence of material issues of fact in
connection with his claim that he was discriminated against on the bases
of disability and national origin. The Commission finds that the AJ
correctly decided that summary judgment was appropriate in this case, and
the AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. We discern no basis
to disturb the AJ's decision. Accordingly, we AFFIRM the agency's final
order finding no discrimination.
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
August 20, 2002
__________________
Date 1The Rehabilitation Act was amended in 1992
to apply the standards in the Americans with Disabilities Act (ADA)
to complaints of discrimination by federal employees or applicants for
federal employment.