Levance Levingston, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 14, 2009
0120091224 (E.E.O.C. May. 14, 2009)

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

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0120091224