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Upshaw v. Tenenbaum

United States District Court, Fourth Circuit

July 31, 2013

WAYNE B. UPSHAW, Plaintiff,


PAUL W. GRIMM, District Judge.

This Memorandum Opinion addresses the Motion to Dismiss, or in the alternative, for Summary Judgment, ECF No. 5, filed by Defendant Inez M. Tenenbaum, Chairman of the United States Consumer Product Safety Commission ("CPSC"). I have reviewed the Motion and accompanying Memorandum in Support, ECF No. 5-1; Plaintiff Wayne B. Upshaw's Opposition, ECF No. 8; and Defendant's Reply, ECF No. 11. A hearing is not necessary. See Loc. R. 105.6. For the reasons stated herein, Defendant's Motion to Dismiss shall be converted to one for summary judgment, and is DENIED.


Plaintiff is an African-American male, citizen of the United States, and resident of Sterling, Virginia. See Compl. ¶ 2, ECF No. 1. His suit stems from the rescission of a tentative offer of employment that was offered to and accepted by Plaintiff in 2008. Id. ¶ 4. Specifically, "Plaintiff sought employment with the [CPSC] by applying for the position of [C]hief [F]inancial [O]fficer, ES-0505-05 in 2008." Id. Plaintiff alleges, and Defendant does not dispute that "Plaintiff was found to be the best qualified for the position and received a tentative offer of employment." Id. Plaintiff asserts that he "accepted the tentative offer and supplied [D]efendant with all necessary information to be hired." Id. Notwithstanding, Plaintiff claims, Defendant withdrew his offer of employment "without good cause and because of [P]laintiff's race" on July 9, 2008. Id. The story, however, is not quite so simple.

A. Factual Background

In February 2008, CPSC announced a vacancy for the position of Chief Financial Officer ("CFO"), a "newly designated position in the Senior Executive Service." Def.'s Mem. 2. Specifically, the "announcement sought applications from individuals with senior level financial management experience to fill a position with oversight for CPSC program planning and evaluation, budget planning and implementation, and agency contracting." Id. Sixteen people applied and four, including Plaintiff, were selected for interviews. Id. The CPSC's Executive Director, Patricia Semple, interviewed Plaintiff on two occasions, id., determined that Plaintiff was the best qualified individual for the position, id.; Compl. ¶ 4, and forwarded her "selection to the CPSC Office of Human Resources ("EXRM") to extend a tentative offer to Plaintiff, " Def.'s Mem. 2. On May 6, 2008, EXRM confirmed Plaintiff's tentative offer and acceptance thereof in a written letter. Id. At that point, as part of CPSC's "standard operating procedure, " it attempted to obtain Plaintiff's Official Personnel File ("OPF") from his previous employer, the Library of Congress ("CRS" or "Library of Congress"). Id. Thus, on May 15, 2008, EXRM requested Plaintiff's OPF from the "Human Resources Office at the Library of Congress." Id. at 2-3. Plaintiff's records that CPSC "received from the Library of Congress indicated that Plaintiff had been terminated from his position [there] during his probationary period" for "conduct or delinquency after entrance on duty."[1] Id. at 3; EEO Report of Investigation 000175 & 000179, Def.'s Mot. Ex. 1, ECF No. 5-2. Upon receipt of Plaintiff's OPF, CPSC Deputy Human Resources Director, Beth Schwab, contacted an unnamed official at the Library of Congress, who confirmed the information in Plaintiff's OPF regarding his termination, but declined to comment on Plaintiff's employment history. Def.'s Mem. 3.

At this point, from Defendant's perspective, three issues surfaced:

(1) the SF-50 that Plaintiff submitted pursuant to the requirement in the vacancy announcement was not his most recent SF-50, as instructed in the vacancy announcement; (2) [Patricia] Semple noted that when she asked Plaintiff during his interview about the reason for his departure from the Library of Congress, Plaintiff informed her that when a promotion he sought did not materialize, he decided not to stay on' there; and (3) the new information the CPSC had about Plaintiff's termination from the Library of Congress required a full background investigation, which would take approximately 120 days and thus delay filling the position.

Id. Defendant determined that the position "could not remain vacant for four more months with the possibility that Plaintiff still might not be qualified after completion of the [120 day] investigation." Id. Thus, on May 21, 2008, Deputy Human Resources Director Beth Schwab "called Plaintiff and told him that the CPSC was withdrawing the tentative offer of employment and no longer considering him for the CFO position." Id. According to Defendant, Ms. Schwab explained to Plaintiff that the information contained in his OPF required that he receive a "favorably completed background investigation before he could be eligible for appointment, " that the investigation could take up to 120 days, and that because CPSC needed to fill the CFO position immediately, it no longer was interested in hiring Plaintiff for the position. Id. During that conversation, Plaintiff informed Ms. Schwab that he had not been terminated from his previous position at CRS. Id. at 4. The next day, on May 22, 2008, "after Plaintiff had contacted a CPSC Human Resources staff member, Schwab called Plaintiff [a second time] and explained that the CPSC's decision to withdraw the tentative offer of employment had not changed, reiterating that the CPSC was no longer considering him for the CFO position." Id. (internal quotation marks omitted).

Plaintiff tells a different story. Upon receipt of the tentative offer of employment, Plaintiff states that he worked with CPSC Human Resources employee Harriet Taylor in order to process his pre-employment paperwork. EEO Report of Investigation 4-5. He states that Ms. Taylor "informed him that his entrance on duty was not conditioned on completion of the security clearance" and provided him with an "open-ended extension to get in the forms needed to initiate the clearance." Id. at 5. Indeed, Plaintiff asserts, when he was first offered the position, CPSC's Human Resources department informed him that "they would set his start date as soon as Office of Personnel Management received the results of his fingerprint check." Id. at 4. On May 19, 2008, Plaintiff states that Ms. Schwab "called him to determine the status of his submission of the materials needed for his background investigation" and stated that CPSC "was anxious for his arrival and wanted to know what was delaying [Plaintiff's] entry on duty." Id. Plaintiff told Ms. Schwab that he expected to submit his completed pre-employment paperwork in a few days, indicated that Ms. Taylor had provided him with an open-ended extension, and notified Ms. Schwab that the delay had been the result of issues related to fingerprinting. See id. After this conversation, Plaintiff called Ms. Semple, the Executive Director, and spoke with her for approximately an hour on topics related to the CFO position.[2] Id.

Plaintiff concedes that two days later, on May 21, 2008, he received a call from Ms. Schwab, during which she informed him "that the CPSC decided to rescind the tentative offer of employment as the agency's Chief Financial Officer." EEO Report of Investigation 000037. Plaintiff asked Ms. Schwab why the offer was being rescinded and, after some pressing, Ms. Schwab informed him that the language on his last employment form from the Library of Congress indicated that he had been fired from his position there. Id. Upon hearing that the basis for the withdrawal was CPSC's belief that he had been fired from his position at the Library of Congress, Plaintiff set out to correct what he believed to be a misconception. See id. at 4. Plaintiff alleges that he informed Ms. Schwab that he had not been fired and that she, albeit reluctantly, agreed to accept correspondence indicating that Plaintiff was not terminated by his former employer. See id. at 5. To that end, Plaintiff faxed to Ms. Schwab a notice demonstrating that he left his previous position because his position was not converted to permanent at the conclusion of a probationary period. Id. After his call with Ms. Schwab, Plaintiff contacted Ms. Taylor and requested clarification concerning the status of his candidacy. Id. at 5. Plaintiff asserts that Ms. Taylor "informed him that no one had told her about any changes." Id. Upon speaking with Ms. Taylor a second time, however, Ms. Taylor stated that a "Team Leader had informed her that the offer given to him had been withdrawn." Id. Moreover, Plaintiff asserts that Ms. Schwab called again the following day to reiterate that CPSC was "no longer interested in hiring him, and that the employment offer [had been] rescinded." Id.

B. Procedural Background

Plaintiff's EEO Report of Investigation reveals that Plaintiff "subsequently filed an appeal with the Merit Systems Protection Board ("MSPB") to protest the lack of due process given to him in CPSC's suitability determination process." Id. On July 8, 2008, CPSC filed its response to Plaintiff's appeal. Id. at 000038, XXXXXX-XX. The response stated that Plaintiff's tentative offer "was withdrawn prior to the initiation of a background investigation, based upon information included in [his] Official Personnel File indicating that he had been terminated for cause unrelated to performance by his most recent prior federal employer." Id. at 000181. Additionally, the response noted that Plaintiff "had failed timely to provide the Agency with documents and release forms required to initiate a background investigation." Id. Plaintiff alleges that it was only after he reviewed CPSC's response to his appeal that he "became aware that the [CPSC]'s actions were discriminatory." Id. at 5. For example, Plaintiff states that "CPSC took extraordinary measures to justify withdrawing the offer when responding to his MSPB appeal... include[ing] making false and inaccurate statements and also misrepresenting information in an effort to cast doubt on his personal integrity." Id. at 6.

On August 20, 2008, Plaintiff first contacted an EEO Counselor regarding his complaints against CPSC and its rescission of his tentative offer of employment. Pl.'s Opp'n 9. Plaintiff participated in informal EEO counseling and received a Notice of Right to File on October 28, 2008. Def.'s Mem. 4. Thereafter, on November 14, 2008, Plaintiff filed a complaint with the EEOC alleging that CPSC discriminated against him on the bases of race and reprisal when it withdrew his tentative offer of employment. Id. Plaintiff initially requested a "hearing before an [EEOC] Administrative Judge on his complaint, " but later withdrew his request for a hearing and consented to a final agency decision. Compl. ¶ 5. On May 26, 2010, after an investigation, CPSC rendered a final decision on Plaintiff's complaint and determined that Plaintiff "proffered no evidence to show that the agency's action was motivated by discrimination or that management's legitimate nondiscriminatory reasons [for the rescission of the tentative offer] were a pretext to prohibited discrimination." CPSC Final Decision, Def.'s Mot. Ex. B, ECF No. 5-3. Plaintiff appealed. Def.'s Mem. 4. On July 26, 2012, the Office of Federal Operations ("OFO") affirmed the Agency's final decision. EEOC Office of Federal Operations Opinion, Def.'s Mot. Ex. C, ECF No. 5-4. Plaintiff filed the present suit on October 24, 2012, alleging race discrimination and seeking de novo review on all issues of the adverse final agency decision. See Compl. ...

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