Ahmed v. Johnson

Decision Date21 May 2014
Docket NumberNo. 13–1054.,13–1054.
Citation752 F.3d 490
CourtU.S. Court of Appeals — First Circuit
PartiesTahar AHMED, Plaintiff, Appellant, v. Jeh Charles JOHNSON, Secretary, United States Department of Homeland Security, Defendant, Appellee.

OPINION TEXT STARTS HERE

Ozell Hudson Jr. for appellant.

Jennifer A. Serafyn, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before THOMPSON, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Tahar Ahmed, a Muslim and native of Algeria, brought this employment discrimination action claiming that he was passed over for the position of Deportation Officer in the U.S. Department of Homeland Security on account of his religion, race, and national origin. The district court granted summary judgment for appellee, the Secretary of the Department (“the Department”), finding that Ahmed failed to rebut the Department's legitimate non-discriminatory reason for choosing other applicants and thus did not raise a factual issue of impermissible animus.

Based on a careful review of the record, we conclude that Ahmed presented sufficient evidence for a jury to find that he was a victim of discrimination. We therefore vacate the district court's judgment and remand for further proceedings.

I.
A. Factual Background

The events underlying this case are largely undisputed. To the extent that the parties disagree about what occurred, we adhere to the plaintiff's version in keeping with our role in reviewing a grant of summary judgment. See Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.2013). We sketch here only the background leading up to the claim of discrimination, reserving for our later discussion a more detailed recounting of the facts pertinent to our decision.

Appellant Ahmed has worked as an Immigration Enforcement Agent for U.S. Immigration and Customs Enforcement (“ICE”) since 2003, and has been assigned throughout that period to the Criminal Alien Program (“CAP”) in the Boston Field Office. Employees who work in the CAP, one of several units within ICE's Detention and Removal Operations, investigate the alienage and deportability of individuals detected through the criminal justice system. From the perspective of co-workers and supervisors, Ahmed has been an exemplary employee. One superior stated that he “always performed at an outstanding level,” and another described him as an [e]xcellent worker” with “awesome leadership, and great work ethics.”

In the summer of 2009, ICE posted a vacancy announcement for the position of Deportation Officer, which stated that applications would be accepted from June 10 through July 28. That timing was qualified, however, by the following notice, which appeared in the announcement in all capital, bold letters:

This is a two (2) month open announcement which will be used to fill both current and future vacancies within a variety of organizational components, duty locations and grade levels. If needed, the first cut-off for receipt of applications will be June 24, 2009. Additional cut-off dates may be established throughout the open period of the announcement. Only those applications received prior to the cut-off dates will be considered. Applicants are encouraged to apply early in order to maximize their opportunity for consideration.

The announcement stated that the major duties of the Deportation Officer position included legal research, assisting government attorneys in court, and working with both criminal and non-criminal aliens at various stages of their deportation or exclusion proceedings. The specified qualifications included experience in immigration investigations,1 and applicants would be rated based on their responses to a questionnaire asking thirty-eight questions about their job-related knowledge, skills, and abilities.

On July 13, 2009, the Boston Field Office requested the names of qualified applicants for each of the grade levels covered by the announcement. The ICE Office of Human Capital sent the Field Office lists of certified applicants for the Grade 9 and 11 levels, each of which contained the names of seventeen candidates, along with their application materials. At that point, Ahmed was not yet a candidate for the position, as he did not apply until July 28—the final deadline for submitting an application.

On July 27—the day before Ahmed applied—Assistant Field Office Director John Lawler, the recommending official for the Deportation Officer position, forwarded to his superior the names of three individuals from the Grade 11 referral list: Anthony Ciulla, Richard Lenihan, and Daniel Shepherd. All three are white males whose primary recent experience in ICE was in the Travel Unit, and all of whom had been within Lawler's chain of command. In an affidavit, Lawler stated that he “recommended each applicant based upon their resume, work history and educational background,” as well as “on what I personally witnessed daily as they performed their duties” in the Burlington and Boston ICE offices.2 Lawler's superior, Deputy Field Office Director James Martin, agreed with the recommendations and forwarded the three names to the selecting official, Boston Field Office Director Bruce Chadbourne.

On August 26, the Boston Field Office made a second request for qualified applicants for the Deportation Officer position. Ahmed's name appeared on the new Grade 9 and Grade 11 lists of certified applicants, but there is no evidence that any additional names were recommended to Chadbourne based on those lists.3 Chadbourne announced the promotions of Ciulla, Lenihan, and Shepherd on three separate occasions in September and early October 2009. 4 In an affidavit, Chadbourne said the three men were selected as “the best qualified candidates” based on “past performance, experience, training, education and work product.” He particularly praised their willingness “to accept difficult duties and assignments that others would not, such as working in the Travel Unit.” Ahmed was notified on October 1 that he was not selected for a promotion.

The record includes evidence showing a paucity of minority employees serving as Deportation Officers in the Boston Field Office during Chadbourne's tenure as Field Office Director. Chadbourne acknowledged that no African–American had served as a Deportation Officer in the Boston headquarters during the years he ran the office, from 2003 to 2011, although he recommended an African–American woman for a Deportation Officer position in the Hartford, Connecticut office and later promoted her to Assistant Field Office Director there. Chadbourne estimated that seven or eight Hispanics worked as Deportation Officers or supervisory Deportation Officers during his tenure. The six New England offices had a total of about fifty Deportation Officers during that period. 5

B. Procedural Background

Ahmed filed the amended complaint underlying this action on August 5, 2011, alleging that he was denied the promotion to Deportation Officer based on his Muslim religion, his race as an Arab,6 and his national origin as an Algerian, in violation of Title VII of the Civil Rights Act of 1964. See42 U.S.C. § 2000e–2(a). He claimed, inter alia, that he was “more qualified than the three individuals selected,” his outstanding record contrasted with the “very poor work habits” of one of the three successful applicants, and there had never been a black Deportation Officer in the Boston Field Office. The Department moved for summary judgment, arguing that Ahmed had failed to make a prima facie showing of discrimination because he was not an applicant at the time Lawler made his recommendations and, even if he had established a prima facie case, there was no evidence that the selections were based on discriminatory criteria.

Evaluating the evidence pursuant to the familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), see infra, the district court concluded that Ahmed had failed to make his case with respect to Lawler and Martin because they made their recommendations before he submitted his application. As to Chadbourne, the district court held that Ahmed failed to rebut the Department's assertion that the three selectees were chosen because of their qualifications. Concluding that no jury considering the evidence could find the defendant's explanation to be a pretext for discrimination, the court held that “a trial on these issues is not warranted” and, hence, granted defendant's motion for summary judgment.

This appeal followed.

II.
A. Standard of Review

Our review of a district court's grant of summary judgment is de novo. Johnson, 714 F.3d at 52. In conducting our “fresh look” at the record, we view the evidence in the light most favorable to the non-moving party, Ahmed, and draw all reasonable inferences in his favor. Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir.2013). Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Gerald, 707 F.3d at 16. To determine whether a trial-worthy issue exists, we look to all of the record materials on file, including the pleadings, depositions, and affidavits. Fed.R.Civ.P. 56(c)(1)(A); Johnson, 714 F.3d at 52. We may neither evaluate the credibility of witnesses nor weigh the evidence. See Sheehan v. N. Am. Mktg. Corp., 610 F.3d 144, 149 (1st Cir.2010). Summary judgment is inappropriate if the evidence “is sufficiently openended to permit a rational fact finder to resolve the issue in favor of either side.” Gerald, 707 F.3d at 16 (internal quotation marks omitted).

B. Legal Principles

Where, as here, a claim of discrimination under Title VII rests on circumstantial evidence, we apply the McDonnell Douglas burden-shifting analysis to help the parties “sharpen the inquiry into the elusive factual question” of the employer's motivation. Tex. Dep't of Cmty....

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