01986762
09-18-2001
Mahmoud H. Mostafa, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Mahmoud H. Mostafa v. Department of Health and Human Services
01986762
09-18-01
.
Mahmoud H. Mostafa,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Appeal No. 01986762
Agency No. NIH-704-902
Hearing No. 120-97-4329X
DECISION
Complainant timely initiated an appeal from the agency's final 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; the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq; and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. Complainant alleges he was discriminated against on the bases
of religion (Muslim), national origin (Egyptian), disability (arthritis)
and age (D.O.B. 2/23/51) when, on June 19, 1992, he was informed that he
was not selected for the Management Intern position, GS-5/7/9, Vacancy
Announcement No. OD-92-0051. For the following reasons, the Commission
AFFIRMS the agency's final decision.
On March 9, 1992, the agency issued a vacancy announcement for ten
Management Intern positions (the Position) with a closing date of April
17, 1992. The Positions were open to status candidates, Outstanding
Scholars and special emphasis candidates only.<1> Complainant requested
an application from the agency for the Position in March 1992, but did
not receive the application until April 20, 1992. Shortly thereafter,
complainant contacted the agency to request an extension for submission
of his application due to his late receipt of the application package.
The agency agreed to extend the deadline for complainant to May 1, 1992.
While first reviewing all the application packages, the agency
classified complainant as a non-status candidate because he was not a
federal employee, he did not have reinstatement rights nor was he an
Outstanding Scholar. Furthermore, complainant was not considered as
part of the special emphasis program because the agency, at this time,
was unaware of complainant's disability. Due to his classification, the
agency failed to consider complainant in the group of eligible candidates.
Complainant's application was not rated or ranked by the Qualifications
Review Board (QRB), and thus was not forwarded to the Administrative
Training Committee (ATC) for further consideration. On June 19,
1992, the agency notified complainant that he was not eligible for the
Position, and that his application had received no further consideration.
The record reveals that the agency selected seven Management Interns.<2>
Believing he was a victim of discrimination, complainant sought EEO
counseling on June 23, 1992. The EEO Counselor contacted the Supervisory
Personnel Staffing Specialist (SPSS) to inform her of the complainant's
allegation of discrimination and his contention that he was eligible
for the Position under the special emphasis program because he had
submitted a certificate of disability with his application. After several
attempts to locate the complainant's certificate of disability, the SPSS
discovered the certificate in complainant's application package.<3>
The SPSS forwarded complainant's application to the ATC for further
consideration, but after considering complainant's application, the ATC
decided not to interview complainant, instead suggesting that he reapply
for the Position the following year.
On September 12, 1992, complainant filed a formal complaint. At the
conclusion of the investigation, complainant was provided a copy of the
investigative file and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ issued a decision without a hearing finding no
discrimination.
The AJ determined that complainant failed to establish a prima facie case
of religion, national origin, age or disability discrimination because
complainant failed to affirmatively demonstrate that he was qualified
for the Position and that similarly situated candidates outside of
his protected classes were selected under circumstances that gave rise
to an inference of discrimination. For the purposes of his decision,
however, the AJ assumed that complainant had established a prima facie
case of religion, national origin, age and disability discrimination.
The AJ then determined that the agency had articulated a legitimate,
nondiscriminatory reason for its action. Specifically, complainant's
application was not considered by the agency because complainant was not
classified as an eligible candidate. The AJ found that complainant,
aside from conclusory allegations and speculation, failed to present
evidence to prove that the agency's articulated reason was pretext for
discrimination. The AJ concluded that complainant failed to establish
unlawful discrimination by a preponderance of the evidence. On August
11, 1998, the agency implemented the AJ's decision in its final decision.
On appeal, complainant contends, among other things, that: 1) the AJ
favored the agency; 2) the AJ adopted the agency's position; 3) the case
was decided without sufficient evidence; 4) complainant was eligible
for the position because of his disability; and 5) complainant should
not be penalized for the agency's error of misplacing essential parts
of his application. The agency makes no contentions on appeal.
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 does not
sit as a fact finder. Id. 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. A disputed 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 under Title VII, an AJ
may properly consider summary judgment only upon a determination that
the record has been adequately developed for summary disposition.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We note that complainant
failed to present evidence that the agency's actions were motivated by
discriminatory animus toward complainant's religion, national origin,
disability or age. We discern no basis to disturb the AJ's decision.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, 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
_____09-18-01_____________
Date
1 Eligible candidates were separated into three categories: 1) status
candidates - individuals who were at least GS-5 level Federal employees or
former federal employees who were eligible for reinstatement to Federal
service; 2) Outstanding Scholar candidates - individuals who, through
the U.S. Office of Personnel Management's Outstanding Scholar program,
were non-federal applicants with an undergraduate grade point average
of 3.5 or in the top 10 percent of his/her class or major university
subdivision; and 3) the special emphasis candidates - individuals who
were disabled, Vietnam era veterans or veterans with 30% disability.
2 Of the individuals selected, four were Federal employees, two were
Outstanding Scholars and one was a reinstatement eligible.
3 The SPSS averred that the agency's failure to consider complainant's
certificate of disability in the first screening of his application was an
oversight caused by human error, and not an intentional or malicious act.