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CHOATES v. POWELL

June 5, 2003

LARRY CARL CHOATES, PLAINTIFF
v.
DONALD E. POWELL, CHAIRMAN, FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Alan Kay, Magistrate Judge

MEMORANDUM OPINION

Pending before the Court is Defendant's Motion for Summary Judgment ("Motion") [35, 37], Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Opposition") [46], Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Reply") [49], and Plaintiff's Sur-Reply to Defendant's Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Sur-Reply") [52]. A hearing was held on this Motion on April 16, 2003. Upon consideration of the Motion, Opposition, Reply, and Sur-Reply and the parties' oral arguments, and for the reasons set forth below, the Court has determined that Defendant's Motion for Summary Judgment [35] shall be GRANTED. An appropriate Order accompanies this Memorandum Opinion.

I. BACKGROUND

A. The Plaintiff's Employment History at the Federal Deposit Insurance Corporation.
The Plaintiff, Larry Carl Choates, is an African American man who has been employed by the Federal Deposit Insurance Corporation ("FDIC") since 1996. (Motion at 2.) The Plaintiff was previously employed by the Resolution Trust Corporation ("RTC") which was created in response to the savings and loan crisis in the late 1980s and which was dissolved on December 31, 1995 at which time the FDIC absorbed and integrated the RTC into the FDIC. (Id.) The Plaintiff began working at the RTC in 1991 as Chief, Accounting & Operational Control Unit in the Division of the Chief Financial Officer (Grade 14). (Id. at 2-3 and Ex. 1 Appointment Affidavit.) The Plaintiff still held this position immediately before the RTC was dissolved at the end of 1995. (Id. at 2-3 and Ex. 2 Notification of Personnel Action.) At the FDIC, the Plaintiff became a Senior Accountant in the Internal Review Branch ("IRB")*fn1 in the Division of Finance ("DOF"), maintaining the same Grade 14 pay and benefits. (Id. at 3 and Ex. 2 Notification of Personnel Action.) The Plaintiff currently holds this same title at the FDIC. (Id. at 3.)
B. The Creation and Staffing of the Federal Deposit Insurance Corporation's Office of Internal Control Management.
The FDIC division in which the Plaintiff worked, the IRB, had three sections that were responsible for (1) audit coordination; (2) corporate compliance with the Chief Financial Officer's Act; and (3) review and process engineering. (Id.) Although there were permanent staff assigned to these sections, most IRB staff, including the Plaintiff, were assigned to the IRB's Professional Staff Group which supported these sections as needed. (Id. at 3-4.) At the time, J. Russell Cherry was the Associate Director and head of the IRB. (Id. at 3.)

In early 1996, the Office of Internal Control Management ("OICM") was created, outside the Division of Finance, which took over some of the functions formerly performed by IRB. (Id. at 4.) Vijay Deshpande was selected to be the Director of OICM and he reported directly to the FDIC's Chief Financial Officer. (Id.) The Plaintiff and other IRB employees were temporarily assigned to work on OICM matters until permanent staff was hired. (Id.)

(1) The Vacancy Postings for the Office of Internal Control Management Supervisory Management Positions.
The OICM was staffed using a "top-down" approach beginning with the supervisory management positions. (Id.) In June 1996, the FDIC posted vacancy announcements for four supervisory Grade 15 management positions which were open to permanent FDIC employees nationwide. (Id. at 4-5.) Consistent with the FDIC's procedures, the FDIC's Personnel Services Branch ("PSB") reviewed all submitted applications and determined which applicants satisfied the basic qualifications for the positions. (Id. at 5 and Ex. 40 Aff. of Laverne G. Coleman ("Coleman Aff.") at 2.) The PSB then created two rosters: (1) the reassignment-eligible roster and (2) the promotion-eligible roster. (Id. at 5 and Ex. 40 Coleman Aff. at 2.) The reassignment-eligible roster identified all the qualified applicants who currently or previously held a permanent federal job at or above Grade 15 which was the level of the vacancies announced; however, the roster did not list the permanent grade levels of the candidates. (Id. at 5 and Ex. 40 Coleman Aff. at 2; id. at 7 n. 10.) The rest of the qualified candidates were working at either the Grade 14 level or had obtained temporary promotions to the Grade 15 level. (Id. at 6.) Because there was a large number of these candidates, the PSB had these applications evaluated by a rating panel that identified a limited number of the best-qualified applicants from this category. (Id. at 6 and Ex. 40 Coleman Aff. at 2.) These best-qualified candidates were listed in alphabetical order on the promotion-eligible roster and the roster did not include the rating panel's ranking of the candidates. (Id. at 6, 7 n. 10.) The selecting official then received a copy of both the reassignment-eligible roster and the promotion-eligible roster at the same time. (Id. at 6.)

(a) Vacancy Announcement Number 96-C-624

The position of Supervisory Management Analyst, Audit Follow-up and Resolutions Section was posted in Vacancy Announcement Number 96-C-624. (Id. at 6 and Ex. 7 Position Vacancy Announcement.) Forty-nine FDIC employees, including the Plaintiff, applied for this position. (Id. at 6 and Ex. 14 List of Applicants.) The PSB concluded that twenty-eight of the applicants met the basic qualifications for the position. (Id.) Five of the qualified applicants were listed on the reassignment-eligible roster. (Id. at 6 and Ex. 15 Memorandum to Selecting Official from Personnel Staffing Specialist.) The remaining applicants were assessed by a rating panel that identified the six best-qualified candidates from this category and these applicants were listed on the promotion-eligible roster in alphabetical order. (Id. at 6-7 and Ex. 16 Roster of Eligibles.)

(b) Vacancy Announcement Number 96-C-625

The position of Supervisory Management Analyst, Internal Control Operations Section was posted in Vacancy Announcement Number 96-C-625. (Id. at 6 and Ex. 8 Position Vacancy Announcement.) Fifty-three FDIC employees, including the Plaintiff, applied for this position. (Id. at 7 and Ex. 17 List of Applicants.) The PSB concluded that forty-one of the applicants met the basic qualifications for the position. (Id.) Eight of the qualified applicants were listed on the reassignment-eligible roster. (Id. at 7 and Ex. 11 Memorandum to Selecting Official from Personnel Staffing Specialist.) The remaining applicants were assessed by a rating panel that identified the eight best-qualified candidates from this category and these applicants were listed on the promotion-eligible roster in alphabetical order. (Id. at 7 and Ex. 12 Roster of Eligibles.)

(c) Vacancy Announcement Number 96-C-626

The position of Supervisory Management Analyst, Internal Control Policies Section was posted in Vacancy Announcement Number 96-C-626. (Id. at 7 and Ex. 9 Position Vacancy Announcement.) Forty-nine FDIC employees, including the Plaintiff, applied for this position. (Id. at 7 and Ex. 18 List of Applicants.) The PSB concluded that thirty of the applicants met the basic qualifications for the position. (Id. at 7-8 and Ex. 18 List of Applicants.) Seven of the qualified applicants were listed on the reassignment-eligible roster. (Id. at 8 and Ex. 19 Memorandum to Selecting Official from Personnel Staffing Specialist.) The remaining applicants were assessed by a rating panel that identified the six best-qualified candidates from this category and these applicants were listed on the promotion-eligible roster in alphabetical order. (Id. at 8 and Ex. 20 Roster of Eligibles.)

(d) Vacancy Announcement Number 96-C-627

The position of Supervisory Management Analyst, Audit Committee Liaison and Support was posted in Vacancy Announcement Number 96-C-627. (Id. at 8 and Ex. 10 Position Vacancy Announcement.) Forty-nine FDIC employees, including the Plaintiff, applied for this position. (Id. at 8 and Ex. 21 List of Applicants.) The PSB concluded that forty of the applicants met the basic qualifications for the position. (Id.) Seven of the qualified applicants were listed on the reassignment-eligible roster. (Id. at 8 and Ex. 22 Memorandum to Selecting Official from Personnel Staffing Specialist.) The remaining applicants were assessed by a rating panel that identified the eight best-qualified candidates from this category and these applicants were listed on the promotion-eligible roster in alphabetical order. (Id. at 8 and Ex. 23 Roster of Eligibles.)

(2) The Hiring Process for the Office of Internal Control Management Supervisory Management Positions.
The Director of OICM, Vijay Deshpande, was the selecting official for the four Supervisory Management Analyst positions. (Id. at 8.) Because the FDIC was being downsized, senior management wanted to ensure that the FDIC retained experienced employees who were highly qualified. (Id. at 8-9 and Ex. 5 Aff. of Vijay G. Deshpande ("Deshpande Aff.") at 3.) In keeping with this goal, Mr. Deshpande decided to first consider all the candidates on the reassignment-eligible rosters. (Id. at 8-9 and Ex. 5 Deshpande Aff. at 3.) The reassignment- and promotion-eligible rosters were forwarded to Mr. Deshpande on August 9, 1996. (Id. at 7-8.) Mr. Deshpande reviewed the paper applications for each reassignment eligible candidate and then proceeded to interview each reassignment eligible candidate. (Id. at 8-9 and Ex. 5 Deshpande Aff. at 3.) For three of the four Supervisory Management Analyst positions, Mr. Deshpande found exceptionally qualified candidates on the reassignment-eligible roster and made his selection from this roster. (Id.) Mr. Deshpande did not consider or interview any of the candidates listed on the promotion-eligible rosters for these three positions. (Id. at 9 and Ex. 5 Deshpande Aff. at 3-4.)

(a) Vacancy Announcement Number 96-C-624

Mr. Deshpande selected Howard Furner to fill the position of Supervisory Management Analyst, Audit Follow-up and Resolutions Section that was posted in Vacancy Announcement Number 96-C-624. (Id. at 9, 17 and Ex. 15 Memorandum Indicating Selection.) According to Mr. Deshpande, he selected Mr. Furner for this position because Mr. Furner had recent, significant experience in auditing and coordinating audits. (Id. at 17 and Ex. 6 Deposition of Vijah Deshpande ("Deshpande Depo.") at 28-29.) Mr. Furner was coordinating audits and the audit process for the FDIC in Chicago which was work similar to that required for the position of Supervisory Management Analyst, Audit Follow-up and Resolutions Section. (Id. at 17 and Ex. 6 Deshpande Depo. at 28-29.) Although Mr. Furner was not a Certified Public Accountant ("CPA"), he was a Certified Fraud Examiner; this training enables individuals to identify fraud, abuse, and waste and Mr. Deshpande believed that this type of investigative background was helpful for this position. (Id. at 17 and Ex. 6 Deshpande Depo. at 29-30.) Mr. Deshpande also considered it favorable that Mr. Furner had strong experience in working with regional managers in coordinating audits and the audit process. (Id. at 17 and Ex. 6 Deshpande Depo. at 28-29.)

(b) Vacancy Announcement Number 96-C-626

Mr. Deshpande selected Kenneth Jones to fill the position of Supervisory Management Analyst, Internal Control Policies Section that was posted in Vacancy Announcement Number 96-C-626. (Id. at 9, 17-18 and Ex. 19 Memorandum Indicating Selection.) Beyond issuing new internal control policies, procedures, and manuals, this position entailed training other FDIC managers. (Id. at 17-18 and Ex. 6 Deshpande Depo. at 38.) Mr. Jones had been a senior manager in an FDIC office and had been responsible for preparing internal control policy and procedure ...


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