Mahmoud H. Mostafa, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionOct 9, 2003
01A05270 (E.E.O.C. Oct. 9, 2003)

01A05270

10-09-2003

Mahmoud H. Mostafa, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Mahmoud H. Mostafa v. Department of Transportation

01A05270

October 9, 2003

.

Mahmoud H. Mostafa,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Appeal No. 01A05270

Agency No. 93-0011

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., Section 501 of the Rehabilitation

Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 pursuant to 29 C.F.R. �

1614.405. For the following reasons, the Commission affirms the agency's

final decision.

ISSUE PRESENTED

The issue presented on appeal is whether the agency correctly determined

that complainant was not discriminated against due to his protected

bases when he was not selected as a Management Intern.

BACKGROUND

The record reveals that during the relevant time, complainant applied

for one of several GS-5/7/9 Management Intern positions (the position)

with the agency's Federal Transit Administration (FTA) sub-agency in

Washington, D.C. The vacancies were advertised under No. UMTA-2022

and No. UMTA-2032 respectively. Complainant sought EEO counseling

and subsequently filed a formal complaint on August 13, 1992, alleging

that he was discriminated against on the bases of his race (Caucasian),

national origin (Egyptian), religion (Moslem), disability (disability in

both legs [limp], left shoulder and right elbow, and obesity), and age

(D.O.B. 02/23/51) when he was not selected as an Intern. Complainant

claimed that during the oral interview for the position, he was asked

questions that were subjective, abstract and vague, and that there was

no valid indicator of his ability to perform in the position. He also

claimed that the interview was a screening tool to eventually identify

those who possessed a foreign accent. Complainant added that because

English was not his original language, he was placed at a disadvantage

in the interview because the interviewers had to make an extra effort

to understand him by distinguishing between similarly pronounced words.

Further, complainant contended that the agency overlooked his previous

experience, and that such experience was an indicator of his ability to

succeed in training for the position. Complainant also asserted that

the references made during the interview regarding his English speaking

skills and his citizenship were discriminatory.

The agency initially accepted and investigated complainant's complaint,

but then dismissed the complaint as moot.<1> The agency argued that,

based on its decision finding discrimination in another non-selection

complaint filed by complainant, and the subsequent settlement agreement

that was reached, wherein complainant agreed to waive all claims against

that sub-agency, he had received full relief for all his discrimination

claims against the agency. The complainant successfully appealed

the agency's decision to the Commission in Mostafa v. Department of

Transportation, EEOC Appeal No. 01943914, (January 17, 1995); request

to reconsider denied, EEOC Request No. 05960645 (March 19, 1998).

Noting that the settlement agreement did not mention complainant's

claims against the FTA, the Commission reversed the agency's decision

and remanded the complaint to the agency for a final decision on the

merits in accordance with complainant's original request.

In its FAD the agency concluded that complainant failed to establish

a prima facie case of disability discrimination because he neither

provided evidence for the agency to make a determination whether his

impairments rose to the level of a disability, nor showed that he had

a record of, or was regarded as disabled by the agency. The agency went

on to find that complainant established a prima facie case of race, age,

religion, and national origin discrimination, but failed to show that

its articulated reason for not selecting him was a pretext for unlawful

discrimination. The agency concluded that complainant was rated among the

best qualified candidates when his application was reviewed during the

initial screening process. Complainant did not receive consideration

as a Schedule A applicant, but was selected as one of 92 applicants to

be interviewed and rated by management officials. These officials were

assigned to interview panels in groups of three. Complainant received

ratings of 42, 41, and 48 out of a possible 55 points, from Panel members

[or Panel] 1, 2 and 3 respectively, for a total score of 131. However,

when viewed in comparison to the ratings issued to the other 92 candidates

who were interviewed, he was not rated or ranked high enough by the Panel

for his application to warrant further consideration. The individuals

selected all had total scores of 144 or higher, with the exception of

a Schedule A appointee, who scored the same as complainant.

In response to complainant's arguments about his experience, the agency

found that he failed to show that �but for� his age he would have been

referred to, and/or selected by, the Selecting Official, or that his

race or religion played a role in his non-selection. Specifically,

while complainant contended that his qualifications were superior to

the selectees, the agency reasoned that it was seeking to fill trainee

positions, which did not require expert or in-depth experience in any

field, and as such, the applicants were, at best, equally qualified.

The agency also found that because complainant admitted that he had

only been in the country for a short period of time, it was natural for

questions relative to his citizenship to arise, and that this was not

indicative of discriminatory animus.

On appeal, complainant contends in relevant part that there was no logical

argument for the agency's failure to forward his application for further

consideration, and that his application package included a certification

letter from the State of New York indicating that he was disabled.

The agency did not submit a brief in response to complainant's appeal.

FINDINGS AND ANALYSIS

Complainant contends that the agency discriminated him against because of

his disability when he was not considered for a Schedule A appointment,

despite the fact that he submitted a letter certifying him as disabled

from the State of New York. The agency contends that complainant's

application package did not indicate that complainant had a disability,

and that complainant only forwarded the Schedule A letter nine months

after the position had closed. Complainant did not argue that this

information was relayed to the agency on an earlier date. We note

that a certification letter does not automatically lead the Commission

to the conclusion that the individual is disabled for purposes of the

Rehabilitation Act. The individual must still establish that their medical

condition meets the regulations set forth at 29 C.F.R. � 1630.2(g).

Specifically, a disabled individual is one who: 1. has an impairment which

substantially limits one or more major life activities; 2. has a record

of such an impairment; or 3. is regarded as having such an impairment.

Major life activities include caring for one's self, performing manual

tasks, walking, seeing, breathing, learning, and working. See Waller

v. Department of Defense, EEOC Request No. 05940919 (April 6, 1995);

Bailey v. United States Postal Service, EEOC Appeal No. 01952545

(March 7, 1996). See also, EEOC Enforcement Guidance on Reasonable

Accommodation and Undue Hardship Under the Americans with Disabilities

Act, No. N-915.002 (revised, October 17, 2002).

Complainant has not established that he is an "individual with disability"

within the meaning of the Rehabilitation Act. As the agency indicated,

complainant provided no evidence or testimony upon which a determination

could be made whether complainant's impairments rose to the level of

a disability. Complainant identified his impairments as a disability in

both legs, left shoulder, right elbow, and obesity, but did not indicate

whether these impairments interfered with any major life activities as

defined in the Act. Further, the statements submitted by the Personnel

Management Specialist and Panel members (Panel) in this case reveal that

they were not aware of complainant's alleged disability during the initial

review of his application or during his interview, nor did they consider

complainant to be disabled. Moreover, while complainant identified his

impairments, he failed to show that he had a record of these impairments

or that they were substantially limiting in any major life activity.

Accordingly, complainant does not come within the protection of the Act

with respect to his non-selection in this case.

The Commission notes, however, that even if complainant was found to

be within the protection of the Act, and further, to have established

a prima facie case of disability discrimination based on disparate

treatment, the agency has proffered a legitimate, non-discriminatory

explanation for the actions complained of by complainant. Here, the

agency indicates that complainant did not notify it of his status as a

Schedule A applicant in a timely manner. The record does not indicate

whether offers of employment had been extended to the selectees at the

time complainant submitted the Schedule A letter for consideration.

However, the record does show that when the agency was put on notice,

it informed complainant that his submission was untimely for the instant

position, and with complainant's consent, forwarded his application for

consideration for another position within the agency. ROI, Exhibits 11

and 21. Given that the evidentiary burden is carried by complainant,

the agency's finding of no discrimination was appropriate.

Complainant also claimed that he was discriminated against based on his

race, religion, age and national origin when he was not selected as a

Management Intern with the agency. 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 may 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). 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);

Packard v. Department of Health & Human Services, EEOC Appeal No. 01985494

(March 22, 2001), request to reconsider granted on other grounds, EEOC

Request No. 05A10499 (November 23, 2001); Garretson v. Department of

Veterans Affairs, EEOC Request No. 01945351 (April 4, 1996).

The Commission concurs with the agency's finding that complainant

properly established a prima facie case of race, age, sex, religion,

and national origin discrimination, in that he was qualified for the

position, was a member of all the claimed protected groups, and was not

selected, while the selectees were outside of these groups. We also

find that complainant failed to present persuasive evidence that more

likely than not, the agency's articulated reasons for its action was

a pretext for discrimination. In reaching this conclusion, we note

that while complainant successfully completed the initial screening and

interview process, his final rating by the Panel was not high enough for

his application to be referred for further consideration. In response

to the agency's articulation, complainant contends that the agency's

reason was a pretext for discrimination primarily because (1) the Panel

members were all Black, and his Mediterranean origin was classified as

Caucasian according to federal guidelines; (2) his religion was clearly

identified to the Panel members as Moslem due to his Moslem name; and

(3) he was over forty years of age, and the selectees ranged from 25 to

39 years of age.<2> However, other than these bare assertions regarding

his race and religion, complainant offered no evidence showing that the

agency's reasons were pretextual.

Complainant also contended that he was discriminated against because

of his national origin in that the oral interview was a screening

tool to eventually identify those who possessed a foreign accent.

Further, he claimed the questions asked were subjective, abstract and

vague, and were not valid indicators of his ability to perform in the

position. Complainant also asserted that the references made during the

interview regarding his English speaking skills and his citizenship were

discriminatory. Complainant also argued that pretext was established

because the Panelists all commented on his high level of knowledge,

but then said that he was difficult to understand. He contended that

the only reason for this difficultly is a discriminatory animus against

his national origin.

The quality ranking factors for the position indicate in relevant part

that applicants would be evaluated on �their ability to analyze and

interpret a variety of issues, problems, and data; and their ability to

communicate effectively in oral and written contacts.� ROI Exhibit 6,

p. 4. The record suggests that this was done, in part, through the oral

interviews. Specifically, applicants, including complainant, were asked

eleven questions during the interview, which covered general information

about the applicants including their work experience, accomplishments,

work style, ability to work with others, to work under pressure, and their

career aspirations. ROI, Exhibit 7a. The applicants could be scored

as low as one (1) or as high as five (5) based on their answers to each

of the questions, for a maximum of 55 points. The three Panelists gave

complainant cumulative scores of 42, 41, and 48 respectively, for a total

score of 131. The Panel as a group interviewed two other candidates,

only one of which was referred with a total score of 152.

Panel members also completed interview summaries which listed the

strengths and weaknesses of each applicant during the oral interviews.

A review of the Panel members' interview summaries reveals that they

all noted their difficulty understanding complainant during the oral

interview as a weakness. One Panel member (P3) indicated that complainant

�does not speak well [and] does not have command of language.� We

note that in that same interview summary, P3 awarded complainant the

highest interview score he received (48 out of a possible 55 points) and

described complainant as �confident, assertive, responsive, energetic,

[and] intelligent,� and indicated that complainant had �considerable

potential.� ROI, Exhibit 7c. Similar positive comments were made

by the other panelists as well. We find that the observations of the

panelists that complainant was difficult to understand, without more,

are insufficient to base a finding of discrimination as the record

shows that complainant was rated on the substance of his answers to the

questions asked, and not on the ease with which he could be understood.

We note for instance, that complainant received the full five points on

the question asking him to speak about himself, which led P3 to make the

abovementioned comments about complainant's command of the language.

The record also reveals that complainant's score was within the range

awarded to other applicants who did not make the cut off and did not

have Egyptian surnames.<3>

Complainant contended that the Panel member allegations about his

difficulty expressing himself were pretextual. In support of this

contention, complainant submitted documentation indicating that he was

on the Dean's List at a community college in New York and scored 95% or

better on federal eligibility exams. We note however, that complainant

presented no evidence that he had previously been rated on his ability

to communicate orally as was the case when he was interviewed for the

position with the agency. Further, to the extent that complainant's

overall rating may have been somewhat lower because of the Panel members'

observations of complainant's difficulties in expressing himself, we find

that such concerns are not a pretext for national origin discrimination

but a legitimate aspect of assessing complainant's qualifications, as

complainant was rated on his ability to communicate effectively in oral

and written contacts. As such, it would be a legitimate reason for the

Panelist to give complainant a lower score in comparison to an applicant

who did not have similar difficulties with elocution, regardless of his or

her accent. In spite of their difficulties in understanding complainant,

we also note that none of the Panel members indicated that complainant's

accent would have interfered with his ability to perform in the position.

As such, we need not engage in an analysis as to whether complainant's

accent would have materially interfered with his job performance.<4> See,

EEOC Compliance Manual of National Origin Discrimination, No. N-915.003

(revised, December 3, 2002). In summary, we find that complainant has

not presented persuasive evidence that his accent was the reason for

his low rating and subsequent non-selection.

We also find complainant has not shown why the core questions asked

during the oral interview were inappropriate for the Panel members to

ask, or why they were not valid indicators of his ability to perform

in the position. Further, the record reveals that all the candidates

interviewed were asked these same questions, and that the questions were

structured to allow the applicants to express themselves, and were not

intended to solicit set responses.

In response to complainant's assertion that the agency overlooked his

previous experience, and that this experience was an indicator of his

ability to succeed in the training for the position, the agency properly

noted that vacancy was to fill a trainee position, and an individual's

years of experience do not necessarily make him more qualified to meet

the needs of an organization; nor do they automatically make one candidate

more qualified than another. See, Tolly v. Department of Transportation,

Request No. 05950092 (July 8, 1996). Further, the record shows that

complainant's skills and abilities, as identified on his employment

application, had already been separately reviewed and rated prior to

his oral interview. Moreover, once applicants were found to meet the

minimal requirements, the level of experience, or lack thereof, became

irrelevant during the interview, as the Panel members evaluated the

candidates according to their responses to questions presented.

In regard to complainant's contention that his accent contributed to his

non-referral, the record supports the agency's articulation that despite

noted comments that it was difficult to understand complainant's English,

every Panel member indicated that they would hire the complainant;

however, his overall rating did not warrant further consideration. With

regard to complainant's citizenship, complainant's application reflected

that he was born in Egypt, and had worked there until his arrival in the

United States (U.S.) in August 1990. The closing date for the vacancy

that complainant applied for was August 19, 1991. Complainant submitted

an application for that position dated August 10, 1991. As such, it was

reasonable for the Panelists to raise questions relative to complainant's

status as a U.S. citizen, which is a prerequisite for federal employment.

CONCLUSION

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 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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

October 9, 2003

__________________

Date

1Complainant initially requested a hearing

on his complaint, but later withdrew his request at the hearing in

favor of a final agency decision. Therefore, references made to the

hearing transcript by complainant and the agency in their briefs will

not be considered.

2Complainant was not yet forty at the time of the initial screening or

panel interview in January 1992, but attained the age prior to being

notified of the non-selection in mid to late July 1992.

3Moreover, we note that a higher score would not have ensured

complainant's selection, as applicants who made the cut-off with scores

as high as 163 were not selected.

4The facts of the instant appeal are distinguishable from those in Daly

v. United States Postal Service, EEOC Appeal No. 01933547, (September

14, 1995), where the Selecting Official asserted that the selectee was

better qualified than the complainant, and that complainant's accent

might interfere with his job performance.