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Upshaw v. Consumer Product Safety Commission

United States District Court, District of Maryland, Southern Division

May 12, 2014

WAYNE B. UPSHAW, Plaintiff,


Paul W. Grimm United States District Judge

After multiple interviews, Plaintiff Wayne B. Upshaw received a tentative offer for the position of chief financial officer of the Consumer Product Safety Commission (the “Commission”). After allegedly receiving negative information about Upshaw’s previous employment with the Library of Congress, the Commission revoked his employment offer. Upshaw contends this was on account of his race. I must decide whether Upshaw failed to exhaust his administrative remedies and whether he has failed to show as a matter of law that the withdrawal was discriminatory, such that summary judgment in the Commission’s favor is appropriate. Because I conclude that the time-limit for exhaustion was tolled and that genuine disputes of material fact exist as to the discriminatory motive, I will deny summary judgment, and the case will proceed to trial.[1]


Upshaw is an African-American male who filed this suit after the rescission of a tentative offer of employment that he accepted in 2008. See Compl. ¶¶ 2, 4, ECF No. 1. Specifically, “Plaintiff sought employment with the [Commission] by applying for the position of chief financial officer, ES-0505-05.” Id. ¶ 4. He alleges, and the Commission does not dispute, that he “was found to be the best qualified for the position and received a tentative offer of employment.” Id.; Def.’s Mem. 2, ECF No. 31-1. Upshaw asserts that he “accepted the tentative offer and supplied [D]efendant with all necessary information to be hired.” Compl. ¶ 4; see Pl.’s Opp’n 1–2, ECF No. 32. Notwithstanding, he claims that the Commission withdrew his offer of employment “without good cause and because of [his] race” on July 9, 2008. Compl. ¶ 4. The story, however, is not quite so simple.

A. Factual Background

In February 2008, the Commission announced a vacancy for the position of Chief Financial Officer (“CFO”), a “newly designated position in the Senior Executive Service.” Def.’s Mem. 2 (citing EEO Report of Investigation (“ROI”) 000175–79, Def.’s Mot. to Dismiss Ex. 1, ECF Nos. 5-2 & 35).[3] Sixteen people applied and four, including Upshaw, were selected for interviews. ROI 000193. The Commission’s Executive Director, Patricia Semple, interviewed Upshaw on two occasions, determined that he was the best qualified individual for the position, and forwarded her “selection to the [Commission’s] Office of Human Resources (“EXRM”) to extend a tentative offer.” Id.; Compl. ¶ 4. On May 6, 2008, EXRM confirmed Upshaw’s tentative offer and acceptance thereof in a written letter. ROI 000193. At that point, the Commission “issued a standard request” to obtain Upshaw’s Official Personnel File (“OPF”) from his previous employer, the Library of Congress. Id. Upshaw’s records “received from the Library of Congress indicated that [he] had been terminated from his position [there] during his probationary period” for “conduct or delinquency after entrance on duty.”[4] Id. at 000193–94, 000175–79. Upon receipt of Upshaw’s OPF, the Commission’s Deputy Human Resources Director, Beth Schwab, contacted “Ms. Lee” at the Library of Congress, who supposedly confirmed the correctness of Upshaw’s OPF, but declined to comment on his employment history. ROI 000072.

The Commission determined, in light of this new information about Upshaw’s termination, that his hiring would require “a full background investigation, which would take approximately 120 days and thus delay filling the position.” Def.’s Mem. 3. The Commission 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 investigation.” Id. Thus, on May 21, 2008, Schwab “called Plaintiff and told him that the [Commission] was withdrawing the tentative offer of employment and no longer considering him for the CFO position, ” and explained its reasoning. Id. (citing ROI 000070, 000080, 000190–91). During that conversation, Upshaw informed Schwab that he had not been terminated from his previous position at the Library of Congress. Id. at 4. He called a member of the Commission’s Human Resources staff the next day, after which Schwab returned his call to reiterate that he was no longer being considered. Id.

Upshaw tells a different story. Upon receipt of the tentative offer of employment, he states that he worked with the Commission’s Human Resources employee Harriet Taylor to process his pre-employment paperwork. ROI 4–5. He states that Taylor “informed him that his entrance on duty was not conditioned on completion of the security clearance” and that she provided him with an “open-ended extension to get in the forms needed to initiate the clearance.” Id. at 5; Upshaw Decl. ¶ 4, Pl.’s Opp’n Ex. 1, ECF No. 32-1. Additionally, as the holder of a recently expired top secret security clearance, Upshaw contends that the background investigation would have taken only a few weeks, rather than the four months argued by the Commission. See Upshaw Decl. ¶ 9. Indeed, Upshaw asserts that when he first was offered the position, the Commission’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.” ROI 4. Upshaw states that Schwab called him on May 19, 2008 “to determine the status of his submission of the materials needed for his background investigation” and that the Commission “was anxious for his arrival and wanted to know what was delaying his entry on duty.” Id. Upshaw told Schwab that he expected to submit his completed pre-employment paperwork in a few days, indicated that Taylor had provided him with an open-ended extension, and notified Schwab that the delay had been the result of issues related to fingerprinting. See Id . After this conversation, Upshaw called Semple and spoke with her for approximately an hour on topics related to the CFO position. Id.

Upshaw concedes that—two days later, on May 21, 2008—he received a call from Schwab, during which she informed him that his offer was rescinded. ROI 000037. He asked Schwab why the offer was being rescinded and, after some pressing, Schwab informed him that the OPF received from the Library of Congress indicated he had been fired from that position. Id. Upon hearing of this, Upshaw set out to correct what he believed to be a misconception. See Id . at 4–5. He alleges that he informed Schwab he had not been fired and that she, albeit reluctantly, agreed to accept correspondence indicating that he was not terminated by his former employer. See Id . at 5. To that end, Upshaw faxed to Schwab a notice demonstrating that he left his previous position because it was not converted to permanent at the conclusion of a probationary period. Id.After his call with Schwab, he contacted Taylor and requested clarification concerning the status of his candidacy. Id. at 5. Taylor “informed him that no one had told her about any changes.” Id. After speaking with Taylor a second time, however, she stated that a “Team Leader had informed her that the offer . . . had been withdrawn.” Id. Moreover, Schwab allegedly called again the following day to reiterate that the Commission was “no longer interested in hiring him, and that the employment offer [had been] rescinded.” Id.

B. Procedural Background

The ROI reveals that Upshaw appealed the Commission’s suitability determination to the Merit Systems Protection Board (“MSPB”) on Due Process grounds. Id. On July 8, 2008, the Commission filed its response to that appeal, id. at 000038, 000181–88, which stated that Upshaw’s tentative offer “was withdrawn prior to the initiation of a background investigation, based upon information included in [his OPF] indicating that he had been terminated for cause unrelated to performance by his most recent prior federal employer.” Id. At 000181. Additionally, the Commission’s response added a second justification: that Upshaw “had failed timely to provide the Agency with documents and release forms required to initiate a background investigation.” Id. Upshaw alleges that it was only after he reviewed this response that he “became aware that the [Commission]’s actions were discriminatory.” Id. at 5; Upshaw Decl. ¶¶ 6–7. Upshaw states that the Commission “took extraordinary measures to justify withdrawing the offer when responding to his MSPB appeal . . . includ[ing] making false and inaccurate statements and also misrepresenting information in an effort to cast doubt on his personal integrity.” ROI 6.

On August 20, 2008, Upshaw first contacted an EEO Counselor regarding his complaints against the Commission and its rescission of his tentative offer of employment. Pl.’s Opp’n 3. He 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, Upshaw filed an EEO complaint alleging that the Commission discriminated against him on the bases of race and reprisal when it withdrew his tentative offer of employment. Id. On May 26, 2010, after an investigation, the Commission found no discrimination or retaliation. Id. (citing CPSC Final Decision, Def.’s Mot. to Dismiss Ex. B, ECF No. 5-3). On appeal, the Office of Federal Operations (“OFO”) affirmed the Commission’s final decision on July 26, 2012. Id. at 4 (citing EEOC OFO Op., Def.’s Mot. to Dismiss Ex. C, ECF No. 5-4).

Upshaw filed the present suit on October 24, 2012, alleging race discrimination and seeking de novo review of all issues of the adverse final agency decision. See Compl. Specifically, Upshaw’s Complaint alleges that the Commission’s “purported reasons for withdrawing the tentative offer of employment—including receipt of information from [P]laintiff’s former federal employer that he had been terminated for reasons relating to conduct or delinquency and the need to fill the position in question quickly” were mere pretexts for racial discrimination. Id. ¶ 7. On February 12, 2013, the Commission moved to dismiss Upshaw’s Complaint or, in the alternative, for summary judgment. See Def.’s Mot. to Dismiss, ECF No. 5. At that time, it was premature to dismiss the Complaint and I allowed Upshaw “the opportunity to take discovery, ” including the “depositions of the persons ...

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