0120091224
05-14-2009
Levance Levingston, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Levance Levingston,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091224
Hearing No. 450-2008-00166X
Agency No. BEP-07-0694-F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's December 19, 2008 final order concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq.
ISSUE PRESENTED
Whether the instant EEO complaint was appropriately adjudicated by
summary judgment in favor of the agency?
BACKGROUND
Complainant was employed by the agency as an Exchanger/Examiner,
KG-6941-05, at the agency's Bureau of Engraving and Printing, Western
Currency Facility in Fort Worth, Texas. At the time of the events at
issue, he and five other employees were serving as acting assistant
supervisors, positions they had been competitively selected into in
the past. Complainant had been selected for his acting assistant
supervisor position in 1993. Each of the six acting assistant
supervisors was eligible for noncompetitive promotion to a permanent
assistant supervisor position. On July 14, 2007, complainant filed an
EEO complaint alleging that the agency discriminated against him on
the basis of race (African-American) when, on June 6, 2007, another
one of the acting assistant supervisors (Caucasian) was selected for
the position of Currency Exchanger/Examining Assistant Supervisor,
KS-6941-06. Although technically considered a non-competitive promotion,
the record indicates that agency management did use a selection process
to decide which of the six acting assistant supervisors to promote to
the permanent position that included evaluations and rankings of the
six by a panel of the permanent supervisors in the relevant section.
Following the investigation into his formal complaint, complainant
requested a hearing before an EEOC Administrative Judge (AJ). On June
2, 2008, the agency filed a Motion for a Decision Without A Hearing. On
June 21, 2008, complainant filed a Response to the Agency's motion.
On December 1, 2008, the AJ issued a decision granting the Agency's
Motion for Summary Judgment, pursuant to 29 C.F.R. � 1614.109(g).
On December 19, 2008, the agency issued its final order implementing
the AJ's decision. The instant appeal followed.
The AJ found that complainant established a prima facie case of race
discrimination because the selectee for the position of Currency
Exchanger/Examining Assistant Supervisor was outside of complainant's
protected class. Nonetheless, the AJ concluded that agency management
articulated legitimate, nondiscriminatory reasons for its actions, and
complainant did not demonstrate that the agency's reasons were pretext
for discrimination. Specifically, the AJ found that according to the
selecting official (Caucasian; hereinafter referred to as "SO" ) and
ranking panel, the selectee was chosen for the permanent position based
on her highest ranking score, "Star Note" experience, and outstanding
performance while in the acting position of Currency Exchanger/Examining
Assistant Supervisor for almost one year. The AJ noted that complainant
was not promoted because he ranked second among the six acting assistant
supervisors,1 and lacked the crucial "Star Note" experience.
On appeal, complainant argues that the AJ applied the wrong analysis
on summary judgment. Complainant states that in regard to the SO's
mathematical errors, "the cluster of mistakes throws doubt on the
validity of the proffered reason for the selection - - the higher
ranking. The inference of innocent intent cannot be the basis for
summary disposition of the case."
ANALYSIS AND FINDINGS
As this is an appeal from an agency's decision issued without a
hearing, pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is
subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a).
The Commission's regulations allow an AJ to issue a decision without
a hearing when he or she finds that there is no genuine issue of
material fact. This regulation is patterned after the summary judgment
procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
In ruling on a motion for summary judgment, a court does not sit as a
fact finder. Id. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be
drawn in the non-moving party's favor. Id. A disputed issue of fact is
"genuine" if the evidence is such that a reasonable fact finder could
find in favor of the non-moving party. Celotex v. Catreet, 477 U.S. 317,
322-323 (1986); Oliver v. Digital Equipment Corporation, 846 F.2d 103,
105 (1st Cir. 1988). A fact is "material" if it has the potential
to affect the outcome of a case. If a case can only be resolved by
weighing conflicting evidence, a hearing is required. In the context
of an administrative proceeding, an AJ may properly consider summary
judgment only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
The courts have been clear that summary judgment is not to be used as
a "trial by affidavit." Redmond v. Warrener, 516 F.2d 766, 768 (1st
Cir. 1975). The Commission has noted that when a party submits an
affidavit and credibility is at issue, "there is a need for strident
cross-examination and summary judgment on such evidence is improper."
Pedersen v. Department of Justice, EEOC Request No. 05940339 (February
24, 1995). "Truncation of this process, while material facts are still
in dispute and the credibility of witnesses is still ripe for challenge,
improperly deprives complainant of a full and fair investigation
of her claims." Mi S. Bang v. United States Postal Service, EEOC
Appeal No. 01961575 (March 26, 1998); see also Peavley v. United
States Postal Service, EEOC Request No. 05950628 (October 31, 1996);
Chronister v. United States Postal Service, EEOC Request No. 05940578
(April 23, 1995). The hearing process is intended to be an extension of
the investigative process, designed to "ensure that the parties have a
fair and reasonable opportunity to explain and supplement the record and
to examine and cross-examine witnesses." See EEOC Management Directive
(MD) 110, November 9, 1999, Chapter 6, page 6-1; see also 29 C.F.R. �
1614.109(d) and (e).
The Commission finds that summary judgment was not appropriate in
this case as genuine issues of material fact exist that can only be
resolved through a hearing. The validity of the numerical scores,
that were critical to the selection process, remain in dispute.
On appeal, complainant contends that the AJ improperly determined that
after SO's mathematical errors were corrected, complainant's score at
the time of the appointment was still second to the selectee's score.
In this regard, we note that the AJ has not elaborated on precisely how
complainant's score remained lower than that of the selectee following
this correction. Moreover, complainant argues that in its reply to
his opposition for a summary judgment, the agency stated that the SO may
not be "the world's greatest mathematician, but that certainly does not
mean that he discriminated against the complainant based on his race."
Complainant properly argues that the agency assertion is based upon an
inference favorable to the agency, namely, that the selecting official's
incorrect ratings were merely an innocent mistake. However, in the
summary judgment determination, it was complainant, not the agency,
as the non-moving party who was entitled to all favorable inferences.
In addition, complainant argues that after a review of the ranking
sheets, he discovered further errors and in his calculation he was
the highest-ranked of the acting supervisors, including selectee.
Complainant further states that the agency replied with further
recalculations "revealing even more mistakes, but claiming that the end
result restored the ranking so that the selectee was highest."
Finally, complainant argues that other matters proffered to prove
pretext were not addressed by the AJ. For example, complainant argues
that the agency refused to disclose the rating calculations and tally
sheets when he asked for them, and refused to provide them when they were
requested by the agency's EEO office during EEO counselor's inquiry into
his complaint. Complainant asserts that in June 2007, he asked SO why
he promoted selectee, and the only answer given was "the supervisors."
Complainant asserts that SO refused to let him see the "surveys [from
the supervisors ranking the six acting assistant supervisors]," and
would not give him any information about the questions on the survey or
about the supervisors' feedback. Complainant states that evidence in the
record indicates that the EEO Counselor requested to view the documents
used in SO's selection of selectee as part of the information gathering
during the informal stage of the process. Complainant further states
"however, surprisingly, the agency attorney refused to let the EEO office
see them."
Based on a thorough review of the record, the Commission determines
that the AJ's finding of no discrimination could not be reached except
by resolving conflicting evidence on issues of material fact, an action
that is not appropriate in a grant of summary judgment. In light of
the disputed issues of material facts on the instant record, issuance
of a decision without a hearing was not warranted under 29 C.F.R. �
1614.109(g).
Accordingly, the Commission VACATES the agency's final order and REMANDS
the matter to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Dallas
District Office the request for a hearing, as well as the complaint file,
within thirty (30) calendar days of the date this decision becomes final.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit of the Dallas District Office. Thereafter, the
Administrative Judge shall issue a decision on the complaint in accordance
with 29 C.F.R. � 1614.109, and the agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 14, 2009
__________________
Date
1 Regarding complainant's argument that his score was incorrectly
calculated, the AJ determined that the mathematical errors made by SO
actually inaccurately raised complainant's score. The AJ noted that after
erroneous mathematical computations were corrected, complainant's score
was still second to the selectee's score.
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0120091224
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0120091224