Ahmed v. Napolitano

752 F.3d 490, 2014 WL 2111236
CourtCourt of Appeals for the First Circuit
DecidedMay 21, 2014
Docket13-1054
StatusPublished
Cited by76 cases

This text of 752 F.3d 490 (Ahmed v. Napolitano) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ahmed v. Napolitano, 752 F.3d 490, 2014 WL 2111236 (1st Cir. 2014).

Opinion

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 ap-pellee, 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 plaintiffs 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.

*493 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 superi- or stated that he “always performed at an outstanding level,” and another described him as an “[excellent 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 *494 and Boston ICE offices. 2 Lawler’s superi- or, 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 Chad-bourne based on those lists. 3 Chadbourne announced the promotions of Ciulla, Leni-han, 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 *495 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. See 42 U.S.C.

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752 F.3d 490, 2014 WL 2111236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ahmed-v-napolitano-ca1-2014.