645 F.2d 1063 (D.C. Cir. 1981), 79-2347, Toney v. Bergland

Docket Nº:79-2347.
Citation:645 F.2d 1063
Party Name:Robert J. TONEY, Appellant, v. Robert BERGLAND, Secretary of Agriculture, U. S. Department of Agriculture.
Case Date:March 04, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1063

645 F.2d 1063 (D.C. Cir. 1981)

Robert J. TONEY, Appellant,


Robert BERGLAND, Secretary of Agriculture, U. S. Department

of Agriculture.

No. 79-2347.

United States Court of Appeals, District of Columbia Circuit

March 4, 1981

Argued Feb. 2, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 78-1007).

James P. Springer, Falls Church, Va., for appellant.

Robert C. Seldon, Asst. U. S. Atty., Washington, D.C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, John R. Fisher and Diane M. Sullivan, Asst. U. S. Attys., Washington, D.C., were on brief, for appellees.

Page 1064

Before PECK [*], United States Senior Circuit Judge for the Sixth Circuit and MacKINNON and GINSBURG, Circuit Judges.



Appellant Robert J. Toney filed a complaint in the district court for damages, back pay, retroactive grade increase, and equitable relief against the Department of Agriculture. The complaint alleged that the Department's rejection of Toney for an open position in its Office of Personnel was a result of racial discrimination proscribed by Title VII of the Civil Rights Act of 1964, as extended by the Equal Opportunity Act of 1972, 42 U.S.C. § 2000e et seq. After the Department's answer and the parties' cross-motions for summary judgment based on the administrative record, the district court granted the Department's motion for summary judgment and denied Toney's. Toney now appeals.

We conclude that the administrative record on which the district court relied fails to show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We therefore reverse and remand for supplemental proceedings, including the taking of testimony as appropriate, on the issues raised by Toney's action.


  1. The Selection Process

    In March 1976, Toney, a black GS-230-13 Employee Relations Specialist in the Security and Operations Division of the Department's Office of Personnel, applied for the position of Supervisory Employee Relations Specialist, GS-230-14. The eligibility requirements stated in the job vacancy announcement were:

    a minimum of three (3) years general experience of a progressively responsible nature ... and at least three (3) years of specialized experience in various areas of employee relations. One year of this specialized experience must have been performed at the GS-13 level.

    The announcement attracted 17 applicants, all of whom were evaluated by a panel of three high-ranking employees of the Office of Personnel. One of the members, William Riley, was Toney's immediate supervisor.

    Of the 17 applicants, 13 were rated qualified under Qualification Standard X-118, which specifies education and experience requirements. Among those so rated were Toney and the person ultimately selected, Donald Kyle, who was a GS-201-13 Personnel Management Specialist. Two of the qualified 13 applicants were black.

    The three member panel made its next cut by applying four criteria supplied to the panel by John Sullivan, the Chief of Personnel Operations Division, and one of the two selecting officials. The selection criteria were: (1) recent operational experience in employee relations; (2) familiarity with job classification and its relationship with employee relations; (3) recent experience in dealing with supervisors and managers at all levels; and (4) experience in labor management relations. The panel applied these criteria to the applicants' Standard Form (SF) 171's and the applicants' most recent performance evaluation. Each panel member rated each candidate and the panel arrived at a consensus that narrowed the list to four "best qualified" applicants. Toney was not on this list, and all of its members were white.

    The list was sent to Sullivan and Sylvester Pranger, Director of Personnel. After interview, these officials selected one of the four, Donald Kyle, pending a full security clearance requested on May 3, 1976.

    Soon thereafter, Toney discovered the fate of his application and convinced both Pranger and Sullivan he should have made the "best qualified" list. Sullivan and Pranger then directed that the three member panel reconvene June 1, and gave them a new set of criteria to apply to the applications of the 13 qualified applicants. Selection criterion # 1, for instance, was broadened

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    to include staff experience as well as operational experience, and selection criterion # 2 was broadened to include knowledge of other personnel areas not primarily classification.

    The result of this second panel evaluation was that Toney and another candidate, who was white, were added to the "best qualified" list. After interviews, Pranger and Sullivan again chose Kyle. On June 21 Toney filed a formal EEO complaint. He alleged that the Department did not want to put a black employee in the position at issue and that Kyle failed to meet the basic qualifications for the position.

  2. Administrative Proceedings

    Toney's charge resulted in a supplemental investigation and in a hearing before the EEO Complaints Examiner. The Examiner found that the ranking criteria used by the first panel were unreasonable but not evidence of racial discrimination, inasmuch as they slighted not only Toney but also a white applicant. Other evidence, however, was thought by the Examiner to trigger a "presumption of institutional or systemic discrimination within (the Office of Personnel)" that the evidence of record did not overcome. App. 7. That evidence included the fact that Toney's supervisor Riley rated him "Don't Know" in 13 of the 28 categories listed on Toney's supervisory appraisal. Many of the categories marked "Don't Know" were "important to the position being filled," the Examiner found, and involved work done under Riley's supervision, although Riley testified he had never personally observed Toney doing them. Kyle, by contrast, received a "very good appraisal" from another supervisor. Id. The Examiner recommended a decision finding discrimination but no reprisal. She further recommended, inter alia, that Toney receive priority consideration for the next GS-14 level vacancy within the agency for which he was qualified.

    Seeking additional relief, primarily in the form of back pay and retroactive promotion, Toney appealed within the Department. A final agency decision, in May 1978, adopted with approval the Examiner's finding that the panel's selection procedures were not racially discriminatory. App. 11. The agency questioned, however, the Examiner's finding of institutional discrimination, including her reliance on the fact that "the supervisor who rated Mr. Toney gave him a different rating than the one a different supervisor gave the person selected." App. 11. "Support or rationale for the Complaint Examiner's findings are somewhat confusing and questionable since they are based on examples not under the control of any one individual ...." App. 12. Nevertheless, the Examiner's recommendation finding discrimination became the final Department decision because the "decision was not made within the 30 day period required by Section 713.220(d) of Part 713 of the Civil Service Commission's regulations." Id.

    Still seeking back pay and other additional relief, Toney filed this action in district court.

  3. Proceedings in the District Court

    Toney filed his complaint in district court in June 1978, alleging he had been denied promotion "because his race is black." App. 20. The Department's answer denied the allegations of racial discrimination. App. 26. Both parties then moved for summary judgment on the basis of the administrative record. For purposes of summary judgment, the Department "(did) not dispute that it (was) bound by the department's finding of discrimination," the district court noted. App. 153. That left only the issue whether Toney should be denied retroactive relief and money damages on the basis that even absent the discrimination he would not have been selected for the position in question. The district court found that proposition supported in the undisputed factual record by "clear and convincing evidence." App. 155.

    The court read the administrative record to leave no genuine issue as to whether the Department would have hired Kyle (or someone else other than Toney) in the absence of discrimination. The court held

    Page 1066

    that Kyle met the minimum qualifications of the position and noted the testimony of one of the selecting officials, Pranger, that Kyle's "greater experience" made him the most qualified candidate. Moreover, in addition to Kyle, another "individual on the list was also well qualified for the position, but was not selected because of a policy of hiring from within the agency." App. 154-55. The court concluded "a careful review of the record demonstrates that the credentials and evaluations of Mr. Kyle and several other candidates were sufficiently superior to plaintiff's to warrant the conclusion that the selection was based on merit." Id. The court then cited to several exhibits developed through the administrative investigation. One of these exhibits, I.R. Supp. Ex. 4, reprinted in App. at 186-95, is the report of the first evaluation panel. Other exhibits cited include statements taken from the two selecting officials, Pranger and Sullivan.


    Our standard of review depends on whether we treat the district court's action as a grant of a summary judgment motion or as a trial on a stipulated record. Trial findings, of course, must be affirmed unless clearly erroneous, with the inferences generally drawn in the judgment's favor. On review of a summary judgment, on the other hand, the party against whom summary judgment was granted has the benefit of all reasonable evidentiary inferences that can be drawn in his favor. See generally Vetter v. Frosch,...

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