                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2008

Jackson v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2987




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                                                        NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         ____________

                              No. 07-2987
                             ____________

                       WENDELL L. JACKSON,

                                   Appellant,


                                   v.

            JOHN ASHCROFT, ATTORNEY GENERAL,
       UNITED STATES DEPARTMENT OF JUSTICE AGENCY,

                                   Appellee.
                             ____________

             On Appeal from the United States District Court
                for the Eastern District of Pennsylvania
                         (D.C. No. 02-cv-08298)
              District Judge: Honorable Petrese B. Tucker
                             ____________

               Submitted Under Third Circuit LAR 34.1(a)
                          November 18, 2008

Before: SCIRICA, Chief Judge, FUENTES, and HARDIMAN, Circuit Judges.

                      (Filed: November 26, 2008 )

                             ____________

                      OPINION OF THE COURT
                           ____________
HARDIMAN, Circuit Judge.

       Wendell L. Jackson appeals an order of the District Court granting summary

judgment to the federal government on his claims of racial discrimination and retaliation

arising under Title VII. We will affirm.

                                              I.

       Because we write exclusively for the parties, we will recount only those facts

essential to our decision.

       This case arises from Jackson’s unsuccessful attempts to become a Special Agent

of the Drug Enforcement Agency (DEA). Although the Philadelphia Field Division of

the DEA recommended Jackson for hire, his first application was rejected after a

background investigation revealed that he had made contradictory statements regarding

marijuana use.1 On three applications, Jackson stated variously that he had used

marijuana: 3-4 times (DEA internship application), 4-6 times (DEA Special Agent

application), and never (application for top secret security clearance).

       In light of the foregoing, Jackson submitted a written apology to the Office of

Security Programs, admitting that he failed to mention his youthful indiscretions to

improve his chances at becoming a military counter-intelligence agent. App. 551-52.

Following Jackson’s apology, his application was reactivated, but the Chief of the




       1
         That investigation also indicated that Jackson had two arrests for domestic abuse
that were dismissed.

                                              2
Recruitment and Placement Section of the DEA’s Office of Personnel, Kenneth

Dickinson, did not recommend Jackson. Pursuant to DEA policy, Chief Dickinson

referred the matter to an “1811 Hiring Panel” for review of his decision. All three

members of the 1811 Hiring Panel voted to disapprove Jackson’s application. Jackson

then filed an EEO complaint alleging racial discrimination, which was denied by the

Department of Justice (DOJ).

       Instead of seeking review of the DOJ’s final agency action, Jackson reapplied –

pursuant to a later vacancy announcement – for the same Special Agent position for

which he had been rejected. Because Jackson failed to submit any new information

concerning the basis of the DEA’s prior denial of his application, the DEA treated

Jackson’s second application as a reconsideration request and referred it to Richard

Ludowig, who was Chairman of the DEA’s Reconsideration Panel. After reviewing

Jackson’s file and finding it devoid of any new information in mitigation of Jackson’s

prior misrepresentations, Ludowig denied Jackson’s re-application without referring the

matter to a Reconsideration Panel. Ludowig testified that he did not recall being aware of

Jackson’s prior EEO complaint at the time he denied his re-application.

       Following Ludowig’s denial, Jackson added a retaliation claim, alleging that the

DEA treated his second application differently because he previously filed an EEO

complaint regarding the handling of his application. The DOJ issued a final agency

decision finding no discrimination based on race or retaliation on account of Jackson’s



                                            3
EEO activity. Jackson filed a timely appeal to the District Court and, following its entry

of summary judgment, filed a timely appeal here.

                                             II.

       We discern Jackson’s principal claim to be that the DEA should not have treated

his second application as a re-application and that the rejection thereof evidences a

systemic pattern and practice of racial discrimination in hiring by the DEA. The District

Court granted the DEA summary judgment on the racial discrimination claim, finding that

Jackson did not proffer any evidence of pretext under Fuentes v. Perskie, 32 F.3d 759 (3d

Cir. 1994). See Jackson v. Ashcroft, No. 02-8298, at *9 (E.D. Pa. Mar. 16, 2006).

       On appeal, Jackson does not cite any evidence of record to establish a triable issue

of fact regarding pretext. Instead, he argues that the DEA treated similarly situated white

applicants more favorably than him. Jackson’s support of this claim is plainly

insufficient. First, as the Government correctly notes, the so-called “affidavit” of Arthur

Reed is neither a sworn affidavit nor an unsworn declaration under penalty of perjury as

required by 28 U.S.C. § 1746. Thus, it is invalid as evidence. Second, the first three

white comparators cited by Jackson were hired initially, not on reconsideration. Finally,

Jackson cites the case of “Applicant G,” who was reconsidered after an initial rejection

for making false statements on his application. In that case, however, the Hiring Panel

had not made a formal decision and the applicant submitted additional information to

rebut the file report that he had lied in his application. App. 643-45, 571-73.



                                             4
       In sum, Jackson has not cited any record evidence that undermines the

Government’s position that applicants who re-apply for a Special Agent position – but

who proffer no new facts in mitigation of their prior misrepresentations – are neither

entitled to a reconsideration hearing nor entitled to be considered as new applicants.

Instead of identifying any applicants who received a reconsideration hearing in the

absence of mitigating evidence, Jackson speculates that the DEA could or should have

advised candidates that additional mitigating facts are a pre-condition for reconsideration.

There is nothing in the record to suggest that this, in fact, is a typical DEA practice or

policy. As such, Jackson’s evidence is insufficient to raise a genuine issue of pretextual

discrimination. Lexington Ins. Co. v. W. Penn. Hosp., 423 F.3d 318, 333 (3d Cir. 2005).

                                             III.

       Jackson next claims that the District Court erred in entering summary judgment

against him on his retaliation claim. We reject this argument out of hand because the

record is devoid of a triable issue of material fact regarding Agent Ludowig’s knowledge

about Jackson’s prior EEO complaint. Even if Reed’s testimony constituted competent

evidence (which it does not), his speculation that Jackson’s EEO activity “would have

been” known by Ludowig is plainly insufficient to withstand the Government’s motion

for summary judgment.

       For all the foregoing reasons, we will affirm the judgment of the District Court.




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