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.