Ahmed v. Napolitano , 752 F.3d 490 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1054
TAHAR AHMED,
Plaintiff, Appellant,
v.
JEH CHARLES JOHNSON,* SECRETARY,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Selya, and Lipez,
Circuit Judges.
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.
May 21, 2014
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeh
Charles Johnson has been substituted for Janet Napolitano as
Secretary of the Department of Homeland Security.
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.
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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.
-3-
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
1
The position was open to applicants with varying levels of
experience, and the salary and job grade of the successful
applicant would depend on his or her prior experience and
qualifications. Ahmed qualified at both the Grade 9 and Grade 11
levels, and was seeking a Grade 11 position.
-4-
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
2
The physical location of the Boston Field Office moved from
Boston to Burlington in about 2007. The Burlington office serves
as both a local office and headquarters for the six New England
states: Massachusetts, Maine, New Hampshire, Vermont, Rhode Island,
and Connecticut. Each state also has a local ICE office.
3
The new lists included names that also had appeared on the
earlier lists, including Ciulla's, and thus apparently reflected a
new ranking of eligible candidates that included more recent
applicants. The transmittal sheets for the earlier lists noted a
cutoff score of 70 for both the Grade 9 and Grade 11 positions,
with seventeen applicants certified as eligible for each. The
transmittal sheets for the later lists noted a cutoff score of 93
for the Grade 9 position (with twenty certified applicants) and 92
for the Grade 11 position (with twenty-three certified applicants).
-5-
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
4
A fourth Deportation Officer position also was filled at
that time, but it is not at issue here. The fourth selectee,
Priscilla Ward-Altamirano, was described as a "humanitarian
transfer" because she was seeking to relocate to a position near
her husband's job.
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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. See 42 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
5
We note some confusion in the record over the actual number
of minority Deportation Officers under Chadbourne's supervision
during the pertinent period. A workforce profile for July 2009
that was prepared as part of the investigation into Ahmed's
complaint reported that, of 35 positions, there were 32 white
employees, one Hispanic, one black, and one Asian. Chadbourne
questioned both the total number of positions and the number of
Hispanics, stating that he knew of five Hispanic Deportation
Officers "off the top of [his] head," including one supervisor. He
indicated that a total of about seven to ten of the approximately
fifty people who were employed as Deportation Officers during his
tenure were minorities.
6
Ahmed testified in his deposition that he listed his race as
"white, North African" in his application for the Deportation
Officer position. A supervisor, Keith Foster, testified that, in
his opinion, Ahmed is black. Chadbourne testified that he
understood Ahmed to be African-American.
-7-
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 (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
-8-
(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 open-
ended 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. Affairs v. Burdine, 450 U.S. 248, 256 n.8
(1981); see also Johnson, 714 F.3d at 53-54. Under that framework,
the plaintiff must first establish a prima facie case of
discrimination. Johnson, 714 F.3d at 53. If he succeeds, an
inference of discrimination arises, and the burden of production
shifts to the defendant to produce evidence that the challenged
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employment action was taken for a legitimate, non-discriminatory
reason. Id. at 53-54. If the employer supplies such evidence, the
plaintiff is left with the burden to prove "by a preponderance of
the evidence that the employer's proffered reason is pretextual and
that the actual reason for the adverse employment action is
discriminatory." Id. at 54.
To establish a prima facie case of discrimination, Ahmed
needed to show that (1) he is a member of a protected class, (2) he
was qualified for the open position of Deportation Officer, (3) he
was denied the position, and (4) the position was given to someone
with similar or inferior qualifications. See Goncalves v. Plymouth
Cnty. Sheriff's Dep't, 659 F.3d 101, 105 (1st Cir. 2011); Ahern v.
Shinseki, 629 F.3d 49, 54 (1st Cir. 2010). Although the district
court acknowledged that Ahmed had established each of these
criteria, it concluded that he nonetheless had failed to state a
prima facie case against "the recommending officers," Lawler and
Martin, because they submitted their recommendations to Chadbourne
before Ahmed applied for the job. The court thus focused the
remainder of its analysis solely on the final selections made by
Chadbourne.
We disagree with the court's approach. Particularly when
the record is viewed in the light most favorable to Ahmed, the key
fact about timing is that the promotions were announced after he
applied for the job. The record does not reveal what precipitated
-10-
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.7
Moreover, contrary to the Department's assertion at oral
argument, the record contains evidence that would permit a jury to
find that Chadbourne also knew that Ahmed had applied before the
appointments were announced. Most significantly, Chadbourne stated
in his affidavit that he had reviewed the referral lists himself,
and he reported in his deposition that he "must have seen [Ahmed's]
application as his name appeared on the list." Chadbourne also
7
In response to the question "What specifically caused you to
recommend the successful candidate(s) over the Complainant," Lawler
stated, in part: "I recommended these individuals over Mr. Tahar
and other candidates based upon my knowledge of what the position
would require of them." In response to the question "Why did you
specifically not recommend the Complainant," he stated, in part:
"Candidate/applicant Tahar did not have the experience of the
candidates/applicants Ciulla, Lenihan and Shepherd with regard to
case management oversight." Martin's affidavit similarly explained
that he did not recommend Ahmed because "[t]hose recommended had
the additional experience of working in the Travel Section that the
Complainant did not have." Further, when Lawler was asked at his
deposition if he had considered performance ratings "for the
successful selectees in relationship to [Ahmed]," Lawler responded
that he did not take such ratings into account because he wasn't
aware there were any -- again suggesting that he did at some point
consider both the selected individuals and Ahmed.
-11-
testified in his deposition that it was "standard practice" for the
lists of certified applicants to be forwarded from the ICE Office
of Human Capital to his office. Lawler testified that Martin gave
him the first packet of application materials. Viewing this
evidence in the light most favorable to Ahmed, it is fair to infer
that each set of applications was sent from the Office of Human
Capital to Chadbourne's office and that Chadbourne (or someone in
his office) passed the materials on to Martin, who then gave them
to his subordinate, Lawler, whose job it was to make the promotion
recommendations that went back up the line to Chadbourne. Given
this evidence, a jury could conclude that all three men knew at the
end of August -- before the promotions were announced -- that Ahmed
had applied.
In addition, the record does not reveal when Chadbourne
made the promotion decisions. So far as we know, the decisions
could have been made on the days they were announced in September
and October, well after Ahmed submitted his application. Hence, we
must presume at this point that Lawler and Martin had the
opportunity to revise their recommendations, based on the second
list of certified Grade 11 applicants, before Chadbourne made his
selections.
Accordingly, we treat the failure to promote Ahmed as a
single decision made by the three hiring officials. Although
Lawler made the initial selections, Martin's and Chadbourne's
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affidavits reasonably may be read to say that they also weighed the
candidates' qualifications before endorsing the recommendations.8
Given these facts, it is unnecessary to distinguish here between
the recommending employees and the ultimate decisionmaker. Cf.
Staub v. Proctor Hosp., 131 S. Ct. 1186, 1189 (2011) (considering
"the circumstances under which an employer may be held liable for
employment discrimination based on the discriminatory animus of an
employee who influenced, but did not make, the ultimate employment
decision").
Ahmed thus met his "modest burden" to establish a prima
facie case against each of the hiring officials. Lockridge v.
Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010). The
Department, in turn, has met its burden to identify a legitimate,
non-discriminatory reason for rejecting Ahmed's promotion: the
employer's conclusion that the chosen candidates had superior
qualifications.9 For purposes of the summary judgment analysis,
8
In addition to the comments described above, Chadbourne
specifically noted that he had "prior knowledge" of Ciulla,
Lenihan, and Shepherd because they worked in the Boston Field
Office.
9
Although the Department also argued before us that Ahmed was
not selected because he applied too late to be considered -- i.e.,
after Lawler and Martin made their recommendations -- we have
explained why the lateness rationale does not hold up factually.
Ahmed asserts that the inadequacy of that reason allows an
inference of pretext. We agree that this unsupported explanation
lends additional weight to our conclusion that summary judgment was
improperly granted here. It does not, however, negate the
Department's reliance on the supposedly superior qualifications of
the chosen applicants. Our analysis therefore focuses on that
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then, the question becomes whether a reasonable jury could find
that the Department's proffered reason is pretextual and that Ahmed
was in fact denied the promotion because of his religion, race, or
national origin. Id. Stated otherwise, we must determine if
"there is 'a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination.'" Holland
v. Gee, 677 F.3d 1047, 1056 (11th Cir. 2012) (quoting Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011)).
In some cases, a plaintiff alleging unlawful employment
discrimination can defeat summary judgment simply by rebutting the
employer's given reason for choosing another candidate because,
once the employer's proffered justification is unmasked as pretext,
the evidence that comprised the prima facie case, with the evidence
of pretext, suffices to support a finding of discrimination. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)
("[A] plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted justification is
false, may permit the trier of fact to conclude that the employer
unlawfully discriminated."); Vélez v. Thermo King de Puerto Rico,
Inc., 585 F.3d 441, 452 (1st Cir. 2009) (holding that employer's
explanation for firing employee "so lacks rationality that it
second rationale. Relatedly, we note that we see no basis in the
record for Ahmed's assertion that Lawler and Martin deliberately
submitted their recommendations early because they knew that he
would be applying later.
-14-
supports the inference that the real reason . . . was his age");
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 430 n.5 (1st
Cir. 2000) (explaining that "introduction of additional evidence is
not necessarily required" when plaintiff makes prima facie showing
and adduces evidence of pretext); Thomas v. Eastman Kodak Co., 183
F.3d 38, 64 (1st Cir. 1999) ("Where the disparity in treatment is
striking enough, a jury may infer that race was the cause,
especially if no explanation is offered other than the reason
rejected as pretextual.").
In other instances, a jury's determination that the
employer's explanation is pretextual will not inevitably reveal
discrimination. This is so because the employer may resort to a
pretext to conceal an arguably inappropriate, albeit not unlawful,
motivation, such as to curry favor with a friend or family member.
See, e.g., Barry v. Moran, 661 F.3d 696, 708 (1st Cir. 2011)
(noting that "an employment decision motivated by cronyism, not
discrimination, would be lawful, though perhaps unsavory" (internal
quotation marks omitted)); Keyes v. Sec'y of the Navy, 853 F.2d
1016, 1027 (1st Cir. 1988) (stating the need for evidence
indicating that discrimination and not other factors, such as
"garden-variety cronyism," influenced the decisionmaking process).
Even where a court looks to additional evidence, however, the
plaintiff's burden is not onerous: "All a plaintiff has to do is
raise a genuine issue of fact as to whether discrimination
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motivated the adverse employment action." Domínguez-Cruz, 202 F.3d
at 433 (internal quotation mark omitted); see also Pearson v. Mass.
Bay Transp. Auth., 723 F.3d 36, 40-41 (1st Cir. 2013) ("To defeat
summary judgment, [the plaintiff] must offer some minimally
sufficient evidence, direct or indirect, both of pretext and of
[the employer's] discriminatory animus." (internal quotation marks
omitted)). The question is whether the record contains "specific
and competent evidence" from which a reasonable jury could find
discrimination. Gerald, 707 F.3d at 16.
With these principles in mind, we consider below whether
a jury could conclude on this record that Ahmed was passed over for
promotion based on his religion, race, or national origin.
C. Discussion
1. Pretext
The Department contends that the decision to promote
Ciulla, Lenihan, and Shepherd was unrelated to Ahmed's race,
religion, or national origin, and instead reflected the hiring
authorities' genuine determination that those three men were the
best applicants for the Deportation Officer positions. Without
question, the record contains sufficient evidence for a jury to
accept the Department's explanation. Lawler, for example, cited
his experience as a manager overseeing Deportation Officers for
more than twelve years and his own eight years as a Deportation
-16-
Officer when asserting that he could identify good applicants for
the job. He explained:
The primary responsibility of a Deportation
Officer is the ability to oversee large case
management. Applicants Ciulla, Lenihan and
Shepherd had all previously been assigned to
the Travel Unit, which required them to work
directly with the Deportation Officers in
overseeing the final steps of effecting the
removal of aliens. Their involvement would
include knowledge of the progress of the
individual cases, knowledge of the Immigration
and Nationality Act, and interaction with the
Office of Chief [Counsel] staff on the
legality of a final removal order. Being
assigned to the Travel Unit required constant
interaction with Deportation Officers and
Supervisory Deportation Officers in the
oversight of cases in Removal proceedings.
This responsibility certainly influenced my
decision.
Lawler went on to say that he deemed the three selected
applicants better for the position because they "were more capable
of performing case management, which is the primary responsibility
of a Deportation Officer." In his deposition, Lawler stated that
"the most important tool" in his decisionmaking process was his
day-to-day involvement with the successful applicants. He observed
that he dealt with the three men "on a regular basis," and thus
"had a real good idea of their work and their ability to perform
duties." Martin agreed with Lawler's recommendation based on,
inter alia, the men's experiences in the Travel Unit "along with
their reputation as proven performers." Chadbourne echoed his
subordinates' sentiments.
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Ahmed, however, disputes the Department's depiction of
the successful applicants' qualifications and performance. He
points in particular to his extended assignment to the Criminal
Alien Program, which he maintains is better training for a
Deportation Officer than experience in the Travel Unit. Claiming
that no Travel Unit employee had previously been promoted to
Deportation Officer, Ahmed describes the work there as perfunctory
and, hence, not meaningful preparation for becoming a Deportation
Officer. He further claims to have trained Lenihan when the latter
joined the CAP shortly before his promotion to Deportation Officer.
In addition, 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.
The Department maintains that Ahmed's claim of superior
qualifications is merely a subjective belief unsupported by the
record. See Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir.
2004) (noting that "subjective evidence of competing qualifications
seldom provides a principled way for a factfinder to determine
whether a given employment decision, even if wrong-headed, was
anything more than a garden-variety mistake in corporate judgment"
(internal quotation marks omitted)). To the contrary, a reasonable
jury could find, on this record, that ample evidence corroborates
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Ahmed's assertion that his ICE experience was more relevant to the
Deportation Officer position than that of the selected candidates
and that he had proven himself to be a significantly more valuable
employee than Shepherd. With respect to his performance, as noted
above, the record contains sparkling appraisals of Ahmed's work and
attitude, contrasting with negative reports of Shepherd's work
ethic. Melinda Lull, a supervisory Deportation Officer, stated in
an affidavit that Ahmed "always performed at an outstanding level
while under my supervision," and noted in a 2008 award nomination
that "[h]e has an excellent knowledge of the laws and policy and
it[s] application to his daily work product." In a 2007
performance review, Lull stated that "Ahmed is one of the top
producers within the Criminal Alien [Program]." A co-worker, Kevin
Williams, praised him for doing his job "beyond what was expected,"
and reported that Ahmed had established contacts within "many other
law enforcement departments that ha[ve] enabled him to be more
effective in his job."
Meanwhile, Keith Foster, an African-American who worked
as a supervisory Immigration Enforcement Agent in the Criminal
Alien Program -- and supervised Ahmed for about five months --
described Shepherd as having "one of the worst reputations as far
as just being a lazy worker." Foster noted that he and Shepherd
were friends, but Foster nonetheless considered the unflattering
assessment to be true and had even discussed it with Shepherd
-19-
himself. Foster also reported that Shepherd was passed over for a
transfer to the CAP because of his work habits and the view that
"other people . . . had more value," and he recalled that Shepherd
"was pulled from being a jail liaison because he was unreliable and
. . . complaining and not doing his duties."10
To be sure, Foster would not be the perfect witness to
establish Shepherd's deficiencies. Although he worked with
Shepherd, Foster never directly supervised him and, like Ahmed,
Foster applied for the 2009 Deportation Officer position and filed
a discrimination claim when he was not selected. Moreover, Foster
acknowledged that his experience with Shepherd predated Shepherd's
work in the Travel Unit. Nonetheless, Foster's role as a
supervisor and his more than fifteen years working at ICE and its
predecessor agency (the Immigration and Naturalization Service,
"INS") would allow a jury to credit his assessments. His testimony
thus creates a factual dispute concerning the relative qualities of
Ahmed and Shepherd as employees.
Ahmed's evidence also countered the selecting officials'
assertion that work in the Travel Unit -- the touted experience of
all three selected applicants -- was objectively preferable to
work in the CAP. Foster described the CAP as "a much more
10
We obviously make no judgment about the accuracy of these
characterizations of Shepherd. We merely note this negative
assessment because it is evidence that must be viewed in Ahmed's
favor on summary judgment.
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demanding job" than the Travel Unit, observing that "[a]nyone who
knows the Travel Unit knows it's not difficult duties at all."
Foster noted that most of the people who previously had been
promoted to Deportation Officer came from the Criminal Alien
Program. Though conceding possible bias because he had worked in
the CAP and not in the Travel Unit, Foster described the CAP as
particularly good training for being a Deportation Officer:
[I]f you work in a CAP Unit, that's the best
experience you can get to understand the whole
operation of how every job in there works.
. . . [Y]ou initiate cases. You interview.
You determine their immigration status. You
have to apply the law. You have to obtain
their criminal records. You have to
communicate with courts and . . . other law
enforcement agencies. You create the case.
The case, before it even goes to the . . .
Deportation Officer, is . . . created by the
CAP Agent.
In addition, Ahmed undisputedly was a better candidate in one
respect. Chadbourne stated that fluency in another language was
one of the considerations for the Deportation Officer position.
Ahmed has advanced language skills, while the three selectees do
not.11 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
11
Ahmed's resume described his Arabic skills as advanced.
Ciulla described his Spanish proficiency as "[a]cceptable" and his
Italian as "[c]ompetent." Lenihan and Shepherd both reported
"[n]ovice" Spanish skills.
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additional applications were submitted.12 This evidence, taken
together, goes far beyond a self-interested assertion by Ahmed that
he was "more qualified than the successful . . . aspirants." Id.Ahmed's contention that the decisionmakers' reliance on
qualifications is pretextual is further supported by the selection
process itself. None 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. Although Ciulla, Lenihan, and Shepherd were
all under Lawler in the chain of command, he was not their
immediate superior and presumably could have learned more about
their capabilities and performance from direct supervisors.
We do not mean to suggest that it was improper for the
hiring officials to make the promotion decisions without including
12
Based on his rating on the assessment questionnaire,
Shepherd was ranked thirteenth out of seventeen applicants on the
first list of certified candidates sent by the Office of Human
Capital for the Grade 9 position and fourteenth out of seventeen
for the Grade 11 position. Lenihan was ranked ninth on the Grade
9 list and tenth on the Grade 11 list. Ciulla was ranked second
and third. On the later lists, Ahmed was ranked third for the
Grade 9 position out of twenty listed applicants and fifth for the
Grade 11 position. Ciulla was ranked eighth and ninth. Although
the cutoff score for the second Grade 11 list was reported as 92,
and the evidence is that Lenihan had a score of 92, [Dkt. 38-2] he
was not included on that list.
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these steps in the evaluation process. We have repeatedly
recognized that it is not our place to second-guess an employer's
legitimate business decisions, see, e.g., Goncalves, 659 F.3d at
107; Rathbun, 361 F.3d at 74, and we would overstep our bounds if
we imposed our view of an appropriate selection process on these
decisionmakers. Indeed, Chadbourne offered a plausible explanation
for the curtailed process when he testified that the agency "[m]any
times" did not do interviews if there were a number of in-house
applicants. He elaborated: "There wasn't a need to, because we
knew the people. We knew their work product." In addition, Lawler
noted that he may have spoken about the applicants to their
supervisors in the past since "[w]e all worked in the same office,"
and he also said he "constantly would communicate with [his]
supervisors about their staff." Moreover, it is undisputed that
Chadbourne was authorized to hire any of the applicants certified
by the Office of Human Capital.
The extent of the decisionmakers' efforts to gather
information about the candidates is relevant here, however, on the
issue of pretext. Ahmed contends that the three officials did not
genuinely believe that Ciulla, Lenihan, and Shepherd were the best
qualified applicants, and that those officials selected three less
capable applicants over him because of his race, religion, or
-23-
national origin.13 Evidence that the hiring officials did not seek
out all pertinent information about the candidates' abilities and
job performance would support that theory; the jurors could infer
from a limited inquiry that the officials falsely claimed to have
sought the best candidates for promotion.
The record thus permits two substantially different
portrayals of Ahmed's candidacy as compared to those of Ciulla,
Lenihan, and Shepherd. In one view, Ahmed's language skills and
long-term tenure in the Criminal Alien Program provided him with
the most pertinent resume for the Deportation Officer position, and
his exemplary record stands in stark contrast to Shepherd's
reputation as an under-performer. In addition, the selection
process reflected a perfunctory or non-existent inquiry from
readily available sources into the applicants' relative
qualifications. In the other view, Ciulla, Lenihan and Shepherd
were the candidates better suited for the position because of their
ability and willingness to perform the demanding work of the Travel
Unit, and Lawler was well positioned to make this assessment
because he had first-hand knowledge of their work.
Determining which view more accurately reflects reality
requires factfinding and credibility judgments that are properly
13
Of course, for Ahmed to prevail, a jury would need to find
only that the decisionmakers chose one applicant who was less
qualified than him based on discriminatory animus. This would be
enough even if the other two selected for promotion were equally or
more qualified than Ahmed.
-24-
the task of a jury. Ahmed's claim of pretext would be
significantly advanced if the jury found that the Criminal Alien
Program has traditionally been recognized as the best training
ground for Deportation Officers, and that the Travel Unit is widely
acknowledged as less demanding. Such findings would undermine the
Department's insistence that the selected candidates had more
opportunity to develop the skills needed by Deportation Officers.
Similarly, a jury could choose to credit the negative evidence
concerning Shepherd's work habits and thus discredit the hiring
officials' professed reliance on the quality of the successful
candidates' performance.
As explained above, however, the jury would need to
conclude not only that the Department's rationale is pretextual,
but also that its asserted qualifications-based preference for the
selected applicants conceals an impermissible discriminatory
motivation. We therefore now consider whether Ahmed has adduced
"minimally sufficient evidence" to permit a reasonable factfinder
to conclude that he was not promoted on account of his religion,
race, or national origin. See Pearson, 723 F.3d at 41 (internal
quotation marks omitted).
2. Discriminatory Animus
As an initial matter, we reject any suggestion that a
finding of discriminatory animus requires evidence that the
decisionmakers knew specifically that Ahmed is a Muslim and native
-25-
of Algeria. The record contains more than adequate evidence from
which a reasonable jury could determine that the decisionmakers
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.
Further, Foster testified that he had heard Ahmed's former
supervisor and "[a] lot of people" address Ahmed as "Habibi" -- an
Arabic greeting that is commonly understood to mean "friend" or
"darling" -- and he also reported speaking with other employees
about Ahmed being a Muslim. A jury reasonably could conclude that
Lawler, Martin, and Chadbourne were exposed to such exchanges,
particularly given Ahmed's testimony that he "interact[ed] with
upper management on a daily basis, and I know them all personally."
The question remains whether Ahmed has also adduced the
requisite evidence to permit a jury to find that his race,
religion, or heritage played a motivating role in the decision to
bypass him for promotion. Although the record contains no evidence
14
Indeed, Chadbourne acknowledged that the name would cause
him to suspect that Ahmed is of Arab ancestry.
-26-
of overt discriminatory conduct or remarks, the McDonnell-Douglas
framework is premised on the reality that "[o]utright admissions of
impermissible [discriminatory] motivation are infrequent." Hunt v.
Cromartie, 526 U.S. 541, 553 (1999); see also, e.g., Vélez, 585
F.3d at 446 (noting that employment discrimination plaintiffs
"rarely possess 'smoking gun' evidence to prove their employers'
discriminatory motivations"). Moreover, "unlawful discrimination
can stem from stereotypes and other types of cognitive biases, as
well as from conscious animus." Thomas, 183 F.3d at 59; see also
Bray v. Marriott Hotels, 110 F.3d 986, 993 (3d Cir. 1997) (noting
that Title VII should "not be applied in a manner that ignores the
sad reality that [discriminatory] animus can all too easily warp an
individual's perspective to the point that he or she never
considers the member of a protected class the 'best' candidate
regardless of that person's credentials"). Hence, a plaintiff's
showing of unlawful animus will not necessarily be deemed
inadequate for lack of explicitly discriminatory behaviors.
As explained above, sufficient evidence to support a
finding of pretext, in combination with the plaintiff's prima facie
showing, can suffice at times to raise an inference of
discrimination that will defeat summary judgment. See Domínguez-
Cruz, 202 F.3d at 430 n.5. Here, however, we have more than that
combination. An employer's "general policy and practice with
respect to minority employment" can be significant in assessing
-27-
discriminatory animus, and Ahmed has offered telling evidence of a
pattern of bypassing minorities for promotion in ICE's Boston
office. McDonnell Douglas Corp., 411 U.S. at 804-05; see also
Mesnick, 950 F.2d at 824,
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,15 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.
In addition, Ahmed produced evidence depicting an
atmosphere in the Boston office that was unwelcoming to minorities
and hindered their advancement. In his affidavit, Ahmed asserted
that "it is widely known locally, as well as nationally, that [the
Boston office] is not diversely populated," and similar
observations were made by an Hispanic Immigration Enforcement
Agent in the Boston office, Efrain Perez:
Since I've been here the office has never
shown a racial balance with respect to
15
Chadbourne was assistant director for the INS in Boston for
sixteen years before being appointed acting Field Office Director
for ICE in 2003. He formally assumed the director's position in
2004 and remained in that role until his retirement in 2011.
-28-
promotions. There are no minority promotions
in the office and the number of minority
employees are real, real low here. Most all
supervisors are White.
. . . They don't recruit or encourage
minorities to put in for jobs. I know not to
put in an application for a job because I
already know that I'm not going to get it.
There is no encouragement for minorities to
put in for jobs. Management grooms those
people they want to promote and they are
always Caucasians.
At the time of his affidavit in 2010,16 Perez had been working in
the immigration agency for eighteen years.
Given the historical evidence showing a complete absence
of black and Arab Deportation Officers in the Boston office
throughout Chadbourne's tenure,17 and an environment in which
Hispanics, according to Perez, also felt discouraged about applying
for promotion, this is not a case in which "allowing the failure-
to-promote claim[] to go forward would be an invitation to the jury
to engage in unbridled speculation." Rathbun, 361 F.3d at 77.
16
Perez's affidavit was prepared in connection with Foster's
complaint.
17
Martin and Lawler also were long-term employees in the
Boston office. Lawler stated in his 2010 affidavit that he had
been "a manager overseeing Deportation Officers in [the Boston]
Field Office for more than twelve years." He also testified that
he had served as interim Deputy Field Office Director for about
fifteen months, in 2003 and 2004, and became Assistant Field Office
Director in late 2005 or early 2006. Martin's employment with the
immigration agency began in 1991. So far as we can tell, the
record does not indicate how long he had been serving as Deputy
Field Office Director at the time of the hiring process at issue
here. He was based in the Boston office at least since 2005.
-29-
Rather, this backdrop,18 in combination with a finding of pretext
in the Department's articulated rationale for choosing three white
male applicants, would permit a reasonable jury to find that Ahmed
was a victim of discrimination based on one or more of his minority
characteristics.
III.
In sum, we conclude that Ahmed's proffered evidence
raises material disputes of fact that foreclose summary judgment.
At trial, the jury will have the opportunity to assess the
qualifications evidence, including the comparative value of
experience in the Criminal Alien Program and Travel Unit, and the
credibility of the three decisionmakers in determining whether
Ahmed has proven a violation of Title VII. See Santiago-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)
("[C]ourts should exercise particular caution before granting
summary judgment for employers on such issues as pretext, motive,
and intent.").
Accordingly, the judgment of the district court is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
18
Although the historical evidence has not yet been shown to
be statistically significant, see Freeman v. Package Machinery Co.,
865 F.2d 1331, 1334 (1st Cir. 1988) (noting expert's testimony that
statistical data revealed a pattern "totally consistent with a
practice of age discrimination"), it is circumstantial evidence
that may inform the jury's evaluation of the decisionmakers'
actions.
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So ordered. Costs to appellant.
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