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Ahmed v. Napolitano, No. 13-1054 (1st Cir. May 21, 2014)

Sometimes, when it's clear that an employer never seems to promote minority employees - and the reasons for that failure seem really thin - then There may be a triable case of race discrimination. The First Circuit reverses summary judgment for a correctional officer described as "always perform[ing] at an outstanding level," and an "[e]xcellent worker" with "awesome leadership, and great work ethics," passed over for a promotion by a white employee with a recorded history of "very poor work habits." The court holds, in particular, it is not necessarily relevant that the decision makers were unaware of the employee's specific race, ethnicity or national origin, when the record showed that no minorities advanced.

Ahmed v. Napolitano, No. 13-1054 (1st Cir. May 21, 2014): The employee, Tahar Ahmed, worked as an Immigration Enforcement Agent for U.S. Immigration and Customs Enforcement ("ICE"). In 2009, he responded to a posted promotional opportunity for Deportation Officer. The duties of the 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, and applicants would be rated based on their responses to a questionnaire asking thirty-eight questions
about their job-related knowledge, skills, and abilities." [Foot note omitted.]

Among the applicants, the Assistant Field Office Director John Lawler recommended three applicants - all white (Ciulla, Lenihan, and Shepherd) - supposedly based on based upon their resumes, work histories and educational background, as well as "on what [Lawler] personally witnessed daily as they performed their duties." Deputy Field Office Director James Martin agreed with Lawler's recommendations. Ahmed was not promoted.

It transpired that the three successful applicants were selected before Ahmed ever applied for the position. "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 addition al names were recommended to Chadbourne based on those lists."

Boston Field Office Director Bruce Chadborne testified that he later accepted Lawler and Martin's recommendations as "the best qualified candidates" based on "past performance, experience, training, education and work product."

The record also reflected "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."

While the district court found that Ahmed failed to show that the decision makers' reasons for the promotion of three whites was pretextual, the First Circuit panel reverses. It makes the following observations:

1. The district court erred in focusing on Chadborne's selections alone, rather than widening the spotlight to include Lawler and Martin, who may simply have refused to consider Ahmed's application:

"The record does not reveal what precipitated the request for a new list of qualified applicants after Lawler and Martin had forwarded their recommendations to Chadbourne on July 27, but the evidence permits the inference that Lawler and Martin were provided the new lists of certified individuals in time to consider Ahmed's application. For example, both say in their affidavits that they chose the qualifications of the three selected
individuals over Ahmed's; neither says that he did not have the opportunity to consider Ahmed's application."

Chadborne even acknowledged likely seeing Ahmed's name on the referral lists of applicants. So, despite knowing that Ahmed was a candidate, the jury could find that the decision maker went with the three original selections notwithstanding. The panel holds on these facts that a jury find that the recommending officers and Chadborne made a single decision.

2.  While the agency contended that the successful applicants had superior qualifications, the record was in dispute on this point. Among There things, "Ahmed notes that he achieved a higher score on the qualification test than any of the three men promoted (97, compared to their scores of 96, 92, and 90), and he contrasts his excellent performance history with the characterization of Shepherd by one of Shepherd's supervisors as lazy and underperforming." Moreover, "the record contains sparkling appraisals of Ahmed's work and attitude, contrasting with negative reports of Shepherd's work ethic." Indeed, one agent (with 15 years' experience with the agency) described Shepherd as having "one of the worst reputations as far as just being a lazy worker." Further, Ahmed's "long-term tenure in the Criminal Alien Program [arguably] provided him with the most pertinent resume for the Deportation Officer position."

The court notes There holes in the agency's account:

"In addition, Ahmed undisputedly was a better candidate in one respect. Chadbourne stated that fluency in another language was oe of the considerations for the Deportation Officer position. Ahmed has advanced language skills, while the three selectees do not. Also, it is noteworthy that neither Lenihan nor Shepherd appeared on the second list of certified candidates, perhaps indicating that they had dropped out of the top group after addition al applications were submitted."

Furthermore, the record contradicted Lawler's contention that he personally witnessed the successful applicants. And "[n]one of the three hiring officials sought information about the applicants beyond the documents provided by
the ICE Office of Human Capital. They did not interview any of the aspirants and did not review any personnel records. Lawler acknowledged that he made no attempt to consult with the supervisors or co-workers of individuals on the list before making his recommendations."

3. That the deciding officers were not aware of Ahmed's precise race, national origin or religion was not decisive.

 "The record contains more than adequate evidence from which a reasonable jury could determine that the decision makers viewed Ahmed as a member of multiple minority groups. As noted above, Chadbourne testified that he believed Ahmed was African-American, an impression evidently based on visual observation and, hence, likely to be shared by Lawler and Martin. A jury also could find that all three men knew, or believed, that Ahmed was of Arab heritage. His name is suggestive,14 and his resume states that he has advanced skills in reading, writing, and speaking Arabic. Chadbourne stated that he had heard that Ahmed was Lebanese."

4. There was, finally, the record of an absence of black promotes.

"Most significantly, the record reveals a history of hiring and promotions that entirely excluded African-Americans and, perhaps, Muslims from Deportation Officer positions in Boston. Chadbourne conceded the absence of black Deportation Officers in that office throughout his tenure as Field Office Director, though he emphasized his selection of the one African-American who held that position in any of the New England ICE offices (in Hartford). Chadbourne also reported that, to his knowledge, There were no Arab or Muslim Deportation Officers in Boston during that time."

There was also testimony by the few (principally Latino) officers in the in the Field Office that observed that the agency never recruited, encouraged, groomed or promoted minorities, and that applying for such promotions was futile.

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