Jordan v. Summers

Decision Date29 February 2000
Docket NumberNo. 99-2277,99-2277
Parties(7th Cir. 2000) Pamela J. Jordan, Plaintiff-Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Defendant-Appellee
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 97-1524-C-T/G--John D. Tinder, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Bauer, Cudahy and Flaum, Circuit Judges.

Cudahy, Circuit Judge.

Pamela Jordan, an African-American accounting technician with the United States Customs Service (Customs), applied for but did not get a promotion in 1994. She filed this lawsuit in the district court1 alleging racial discrimination and retaliation in violation of Title VII. She also alleged that Customs improperly failed to process her complaint of discrimination. Customs filed a motion for summary judgment that the district court granted. We affirm.

I. Facts and Disposition Below

Pamela Jordan began working for Customs (a part of the United States Department of the Treasury) in 1988. She had received an undergraduate degree in accounting in 1983,2 graduating with a 2.5 grade point average on a 4.0 scale. She started with Customs as a GS-5 level accounting technician and was promoted to GS-6 after a year. In May of 1990, Customs promoted her to GS-7, where she remained at the time of the district court action. During her years at Customs prior to this lawsuit, Jordan worked in accounts payable where she performed auditing functions, made disbursements for petty cash expenses and made recurring payments for utilities for Customs's offices around the country.

In November of 1994, Customs announced three vacancies for operating accountant positions with promotion potential to the GS-12 level. Customs filled these vacancies using the provisions of its Merit Promotion Plan (merit plan). Under the merit plan, each interested employee submitted a "knowledge, skills and abilities form" (KSA) and an application. The KSA instructed applicants to provide information regarding experience, education, accomplishments and training to aid in the evaluation of their applications. Based on these materials, a three-member panel rated every applicant on four selection criteria.3 If a majority of the panel rated a candidate at the "Good" or "Excellent" level4 on every primary criterion, that candidate was placed in the "best qualified" group. Being placed in the "best qualified" group served as a threshold requirement under the merit plan because only members of that group were referred for further consideration. Making the "best qualified" group did not guarantee promotion, but any candidate who did not make it could not be considered for the operating accountant vacancies. The merit plan also required each candidate to have completed 24 hours of accounting courses before being promoted to operating accountant.

After learning of the vacancies in 1994, Jordan applied and submitted her KSA. Her bid for promotion failed: she was not placed in the "best qualified" group because two of the three panel members rated Jordan below "Good" on her ability to analyze accounting records to ensure accurate computer reports (Criterion 2). One of these found Jordan's terminology "nonsensical," thought that Jordan "should have been able to express her achievements and abilities in more detail" and found other critical information lacking from Jordan's KSA. Ex. 1, tab 6 at 2-3.5 The other panel member who rated her below "Good" found her KSA unclear and believed that "Ms. Jordan's response to Criterion 2 lacked detail and explanation." Ex.1, tab 7 at 2. Each of these board members rated Jordan at 3.0 on Criterion 2 (which was below "Good"). Having been rated below "Good" by a majority of the panel on a primary selection criterion, Jordan was not placed in the "best qualified" group and, therefore, could not have been selected to fill one of the three operating accountant vacancies under the merit plan.

After being rejected for this promotion, Jordan approached the Equal Employment Opportunity Division (EEO)--a part of the Department of the Treasury, in function much like the EEOC-- regarding what she believed to be discriminatory reasons for not having been promoted. Jordan filed a formal EEO charge in June of 1995.6 On March 27, 1996, an administrative law judge remanded the charge to the agency for it to explore the applicability of a continuing violation theory to Jordan's claims. In May, the Regional Complaints Center of the Department of the Treasury dismissed a portion of the complaint in substance because it had already been decided in one of Jordan's prior EEO filings. After this partial dismissal, the administrative law judge stayed further proceedings to allow an appeal to the EEOC. Jordan lost her appeal: the EEOC affirmed the partial dismissal on June 10, 1997. On September 10, 1997, Jordan filed the instant action in federal district court, alleging that Customs "groomed, detailed, reassigned, and promoted White accounting technicians who did not have degrees in accounting" while refusing to do the same for her. Complaint para. 9.

In the district court, Jordan first claimed that Customs discriminated against her on the basis of her race and failed to investigate her 1995 charge. She later amended her complaint to include three counts under Title VII: (1) Customs improperly failed to process her administrative complaint, (2) Customs discriminated against her on the basis of race, and (3) Customs retaliated against her for her EEO activity. Customs moved for summary judgment. The district court found that Jordan failed to adduce sufficient evidence to create a triable issue of fact and granted summary judgment in favor of Customs on all counts. Jordan appeals.7

II. Discussion

We review the district court's decision to grant summary judgment de novo, considering all facts in the light most favorable to Jordan and resolving all inferences in her favor. See Simpson v. Borg-Warner Automotive, Inc., 196 F.3d 873, 876 (7th Cir. 1999); Ghosh v. Indiana Dep't of Envtl. Management, 192 F.3d 1087, 1090 (7th Cir. 1999). Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Jordan must present "specific facts showing that there is a genuine issue for trial," Fed. R. Civ. P. 56(e), and "only if a reasonable jury could render a verdict" for Jordan does she defeat summary judgment. Vanasco v. National-Louis Univ., 137 F.3d 962, 965 (7th Cir. 1998). See also Griffin v. City of Milwaukee, 74 F.3d 824, 827 (7th Cir. 1996).

A. Jordan's Failure-to-Process Claim

Jordan claims that Customs improperly failed to process her 1995 EEO complaint, and she asks us to order Customs to process it for an EEOC hearing. Customs argues, as it did below, that this request must be denied because Jordan fails to state a valid claim under Title VII or, in any event, the uncontradicted evidence shows that Customs did properly process Jordan's claim. The district court assumed, without deciding, that Jordan stated a valid failure-to-process claim but then found that Customs, in fact, had processed the claim. While we agree with the district court's disposition, we believe that the evidence need not have been considered because Jordan does not state a valid claim for relief under Title VII, and we can decide this issue on that basis. See Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 490 (7th Cir. 1996) ("[W]e may affirm the judgment of the district court on any sufficient basis supported by the record.").

Neither party points to a case that either directly supports or undermines Jordan's failure- to-process cause of action against the EEO, but an analogy to EEOC practice is instructive here. Just as the EEOC processes complaints of discrimination from employees in the private sector, each federal agency must have an EEO Division to process complaints from agency employees. See 29 C.F.R. pt. 1614. It is well established that a private-sector employee has no cause of action against the EEOC for its failure to process a charge of discrimination. See McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir. 1984) ("It is settled law, in this and other circuits, that Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge."). See also Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997); Baba v. Japan Travel Bureau Int'l, Inc., 111 F.3d 2, 5-6 (2d Cir. 1997); Scheerer v. Rose State College, 950 F.2d 661, 663 (10th Cir. 1991); Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983); Francis-Sobel v. University of Maine, 597 F.2d 15, 18 (1st Cir. 1979); Gibson v. Missouri Pac. R.R., 579 F.2d 890, 891 (5th Cir. 1978). The proper course for a private plaintiff whose claim the EEOC mishandled is to bring a lawsuit against the plaintiff's employer on the merits, not one against the EEOC. See McCottrell, 726 F.2d at 352. A similar rule is warranted here. Jordan presents no persuasive reason why she, as a federal employee, should be given an implied failure-to-process cause of action under Title VII that has been consistently denied to private plaintiffs. And even if the EEO Division botched the processing of her complaint, Jordan is now already in a federal court on the merits, and any earlier mishandling is essentially moot. Jordan's failure-to-process claim does not state a claim upon which relief can be granted, and Customs is entitled to judgment as a matter of law. We, therefore, affirm the district court's decision to grant summary judgment on Count 1 of Jordan's complaint.

B. Discrimination and Retaliation Claims

Jordan presents no direct evidence of...

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