05A01122
04-12-2001
Ali K. Khalil, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Ali K. Khalil v. Department of Agriculture
05A01122
04-12-01
.
Ali K. Khalil,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A01122
Appeal No. 01A01710
Agency No. 98-0233
Hearing No. 160-98-8611X
GRANT OF REQUEST FOR RECONSIDERATION
The Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Ali
K. Khalil v. Daniel R. Glickman, Secretary, Department of Agriculture,
EEOC Appeal No. 01A01710 (July 14, 2000).<1> EEOC Regulations provide
that the Commission may, in its discretion, reconsider any previous
Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b). For the reasons set forth below,
the Commission GRANTS complainant's request.
Complainant applied for two supervisory vacancies but was notified
on July 23, 1997, that he had not been selected for either position.
He filed a complaint in which he claimed that, in not promoting him,
the agency discriminated against him on the bases of race (black),
religion (Moslem), national origin (Egyptian), and reprisal. The agency
investigated the complaint and referred the matter to an administrative
judge (AJ) for a hearing. The AJ issued a recommended decision of
no discrimination, without holding a hearing, and the agency adopted
the AJ's recommendation as its final decision. The previous decision
summarily affirmed that decision.
The two positions in question carried the title of senior plant
protection quarantine officer, GS-4036-11. Quarantine officers are
generally responsible for interpreting and enforcing the agency's
regulations pertaining to the transport and storage of organic substances.
To meet the minimum qualifications for the position, applicants had to
have either a year of specialized experience at the next lower grade,
or three years of progressively higher education or a doctoral degree.
The duties and responsibilities of the two positions varied considerably,
however. The compliance officer had to prepare, monitor, and enforce
compliance agreements, manage compliance programs, investigate reports
of violations, and serve as the key contact with regulated industries
on compliance matters. The desk officer served as the agency's point of
contact on quarantine issues generally. In that capacity, the incumbent
had to respond to inquiries from other agencies, industry representatives
and the general public on technical and regulatory requirements pertaining
to quarantine matters.
The applications were submitted to the personnel office for initial
review and certification. A personnel specialist prepared a promotion
certificate for each position. Eight candidates were listed on the
compliance certificate, including complainant including complainant and
the eventual selectee (S1). The operations desk certificate contained the
names of six candidates, including complainant and the selectee for that
position (S2). The certificates were forwarded to the cargo operations
director, who served as the selecting official (SO) for both positions.
The SO designated two of his deputies (RO1 and RO2) as recommending
officials. He instructed them to evaluate the candidates and make
recommendations as to who should be selected. RO1 and RO2 rated applicants
for the compliance officer position against five selection criteria
(KSAs): problem solving; planning and evaluation; written communication;
verbal communication; and influencing/negotiation. Each factor was
assigned a point value of 5 points; consequently, the highest score a
candidate could receive was 25 points. The KSAs for the operations desk
officer were the same as those for the compliance officer position,
except for written communication. Hence, the highest score a candidate
for desk officer could receive was 20 points. In addition to KSAs, RO1
and RO2 considered the candidates' most recent performance appraisals.
In the event of a tie, they indicated that they would consider awards and
seniority, but ultimately did not do so, since there was none. They did
not conduct interviews. They rated each applicant individually, then
averaged their scores for a final score, which became the basis for
their recommendations to the SO.
RO1 and RO2 ranked complainant lower than the selectees for both
positions. They put forward their recommendations to the SO, who made
the selections in accordance with those recommendations. RO1 stated
that the compliance officer selectee had scored the highest on the KSAs
and had an outstanding performance evaluation, whereas complainant only
had a superior evaluation. Regarding the operations desk position, RO1
stated that the candidate who received the highest scores on the KSAs
had taken another job, and that the selectee had the next-highest score.
RO2 stated that he did not have the paperwork that was used and could
not recall everything he might have said about the complainant.
The United States 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
is �genuine� if the evidence is such that a reasonable fact finder
could find in favor on 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
only properly consider summary judgment after there has been adequate
opportunity for development of the record. An administrative judge's
decision to issue a decision without a hearing pursuant to 29 C.F.R. �
1614.109(g) will be reviewed de novo. EEO Management Directive 110,
pp. 9-16 - 9-17 (November 9, 1999).
In granting the agency's motion for a decision without a hearing, the AJ
found that complainant established a prima facie case, but ultimately
concluded that he failed to prove that the agency's articulated
reasons for not selecting him were pretexts for discrimination.
In particular, the AJ held that, in order to show pretext, complainant
had to demonstrate that his qualifications were plainly superior to
those of the selectees. We disagree. The fact that complainant's
qualifications were not plainly superior to those of the selectees does
not mean that complainant failed to establish the essential elements of
his case. An inference of discriminatory motivation may be raised by any
circumstances which suggest that unlawful considerations played a role in
the selection process. See e.g., Reeves v. Sanderson Plumbing Products,
Inc., ____U.S.____, 120 S.Ct. 2097 (2000); St. Mary's Honor Center
v. Hicks, 509 U.S. 502, 511, 519 (1993); EEOC Enforcement Guidance on
St. Mary's Honor Center v. Hicks (April 12, 1994); Pavelka v. Department
of the Navy, EEOC Request No. 05950351 (December 14, 1995); Huerta
v. Department of the Air Force, EEOC Request No. 05930802 (April 1, 1994).
Such circumstances, if left unexplained, would preclude summary judgment.
One of complainant's co-workers stated in a sworn affidavit that
complainant, �does a superior job and is superior to those who were
selected in that he had more experience than either of them.� This
individual further stated:
I know both of the men who were selected for the jobs and I have worked
with them. One of them [the compliance officer selectee] never worked
in the cargo unit before, so I do believe he has no experience at all in
cargo. The other [operations desk selectee], is good, but [complainant]
had more experience and more knowledge about the job than him.
The record does not include any affidavits, sworn statements, or
documents which contradict this witness's statement, or which undermine
his credibility as a witness. While this alone would not preclude a
finding of summary judgment, there are other factors which, when read
together with the coworker's assessment, do raise genuine issues of
material fact as to whether the selectees were really the best-qualified
candidates for these quarantine officer positions.
To begin with, the record indicates that complainant and the two selectees
were all highly qualified for both positions. The SO acknowledged as
much, expressing regret that complainant did not get a position, and that
a third position was not available for him. In addition, ranking process
used by RO1 and RO2 to evaluate the candidates was highly subjective.
While the use of subjective standards is not discriminatory per se, the
absence from the record of any notes or paperwork indicating how they
determined the candidates' scores and rankings raises questions about
the reliability of the rating and ranking process. This is particularly
true in the case of the operations desk position, since complainant
and the selectee both had the same performance appraisal rating of,
�superior.� Moreover, complainant appears to have had the edge in
education with respect to the operations desk position. Not only did
he have a bachelor of science degree in agriculture, he also had taken
graduate level courses in food technology and biochemistry. By contrast,
the selectee had attained two associate degrees, one in criminal justice,
and the other in ornamental horticulture. In terms of educational
preparation, complainant not only attained a higher level of education
than the selectee, but his degree program and graduate courses appear
to be more relevant to the duties of the desk officer position.
When viewed in conjunction with one another, these facts make it clear
that complainant did not fail to present the essential elements of his
case, and that unresolved questions of credibility need to be addressed
before a final judgment can be rendered thereon. These credibility
questions can best be resolved at a hearing, where witnesses can be
observed, and their demeanor assessed. This case was therefore not ripe
for summary judgment. To the extent that the previous decision found it
so, that decision constitutes a clearly erroneous interpretation of law.
After a review of the Complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to grant the request. The Commission therefore
VACATES its decision in EEOC Appeal No. 01A01710 and REMANDS the matter
to the agency in accordance with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the appropriate EEOC
field office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. The agency shall provide written notification
to the Compliance Officer at the address set forth below that the
complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109, and the agency shall issue a
final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
___04-12-01_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.