McIntosh v. Geithner, CASE NO. CV F 11-0054 LJO SKO

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill
Decision Date31 May 2011
PartiesPERCY McINTOSH, Plaintiff, v. TIMOTHY GEITHNER, Secretary of the Treasury, Defendants.
Docket NumberCASE NO. CV F 11-0054 LJO SKO

PERCY McINTOSH, Plaintiff,
TIMOTHY GEITHNER, Secretary of the Treasury, Defendants.



Dated: May 31, 2011

(Doc. 139.)


Defendant Treasury Secretary Timothy Geithner ("Secretary") seeks summary judgment in the absence of evidence to support plaintiff Percy Mcintosh's ("Mr. Mcintosh's") discrimination and retaliation claims arising from his delayed grade level increase for an Internal Revenue Service ("IRS") position. Mr. Mcintosh responds that discrepancies as to qualifications for a higher grade level and promotions of similarly situated employees raise factual issues to defeat summary judgment. This Court considered the Secretary's summary judgment motion on the record1 without a hearing, pursuant to Local Rule 230(g). For the reasons discussed above, this Court GRANTS the Secretary summary judgment.

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Mr. McIntosh is a black IRS territorial manager. In this action, Mr. McIntosh pursues discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., because in 2000, he was qualified at a GS 9 entry level for a position in the Equal Employment Opportunity ("EEO") office in the Fresno IRS Service Center ("Fresno center"). Mr. McIntosh claims that he was denied a GS 12 level for the EEO position due to racial discrimination and for retaliation for making EEO complaints.

Mr. McIntosh's EEO Specialist Position

On August 13, 2000, Mr. McIntosh applied for an EEO specialist position in the Fresno center's EEO office. Mr. McIntosh's application identified neither his race nor prior EEO activity. At the time of the application, Mr. McIntosh worked the previous 20 months as an IRS customer service manager at a GS11 level. The EEO specialist is a "ladder" position by which an applicant entering at GS 9 level is automatically promoted to GS 11 level after one year of satisfactory service and to a GS 12 level after another year of satisfactory service. If an applicant has sufficient "specialized experience" for a ladder position, the applicant my qualify for a higher entry GS level. In such case, a personnel staffing specialist considers prior relative knowledge, experience and training.

At the time of his EEO specialist application, Mr. McIntosh had worked eight years as an EEO counselor as "collateral duty." Mr. McIntosh explains that although he "had another primary job with the IRS, as a secondary responsibility he counseled IRS employees with complaints of workplace discrimination at the early stages of the EEO Administrative complaint process." Mr. McIntosh had also worked with the Diversity Advisory Committee and with EEO Special Emphasis Programs to advise the Fresno center director regarding discriminatory processes and to identify barriers preventing "protected groups" from "getting hired or advancing in the federal service."

In September 2000, Mr. McIntosh was selected for the EEO specialist position at a GS level 9 with a $43,793 salary, effective August 13, 2000. The decision to qualify Mr. McIntosh at a GS level 9 was made by Lisa Harris ("Ms. Harris"), a personnel staffing specialist in the IRS' Washington, D.C. national office ("national office"). Mr. McIntosh has never met Ms. Harris. In his deposition, Mr.

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McIntosh testified that he recalls no conversations with Ms. Harris regarding his race or prior EEO activity. Although unsure, Mr. McIntosh does not "think" he had communications with anyone in the national office about his entry GS level for as an EEO specialist. Mr. McIntosh lacks personal knowledge of contacts between the Fresno center and the national office prior to determination of his entry GS 9 level. Furthermore, Mr. McIntosh lacks knowledge that Fresno center director Ronda Hon ("Ms. Hon") was involved in his entry GS 9 level for the EEO specialist position. In fact, Mr. McIntosh lacks knowledge of the Fresno center's communications or involvement in the entry GS 9 level.

The Secretary attributes Ms. Harris' entry GS 9 level determination and denial of a GS 12 level to Mr. McIntosh's lack of EEO experience in a GS 11 level position, the importance of "specialized experience," and Mr. McIntosh's original application materials. In his declaration, Mr. McIntosh states:

When I inquired as to why I was only given a GS-09, I was told by an individual at the Atlanta Personnel Office, whose name I do not recall, that I was only qualified for the [GS 9] grade level because I lacked "specialized experience" as an EEO specialist.

Mr. McIntosh claims that he qualified for an entry GS 12 level because he had been a GS 11 level for 20 months in his customer service manager position and had, as he testified, "'mucho' EEO experience as collateral duty EEO" and had been "involved in EEO-related activities." Mr. McIntosh accepted the entry GS 9 level "under protest" and testified: "I knew I was going to, first of all, go up the chain to see about getting a 12. If that wouldn't work, then I would file an EEO complaint."

Mr. McIntosh spoke with his supervisor and EEO Officer Joe Leal ("Mr. Leal"), and according to his declaration, Mr. McIntosh told Mr. Leal that "I considered the fact I was only given the job at the GS-9 level to be racially discriminatory" and "I informed Leal that I was going to file an EEO complaint." Mr. McIntosh agreed to allow Mr. Leal to address the entry GS level, and Mr. Leal corresponded with Ms. Harris and her supervisor Gwen Banks ("Ms. Banks") at the national office to increase Mr. McIntosh's GS level. With Mr. Leal's assistance to provide information to better explain his EEO activities, Mr. McIntosh was elevated to a GS 11 level with a $47,412 salary, effective December 31, 2000. His salary increased to $49,102, effective January 14, 2001. The Secretary attributes Ms. Banks to have reviewed and concurred with Ms. Harris' decision to qualify Mr. McIntosh at the GS 11 level, not a GS 12 level. The Secretary further attributes Ms. Banks to have obtained review by a senior staffing specialist and another manager who concurred with the decision to qualify

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Mr. McIntosh at a GS 11 level.

According to Ms. Harris that "the qualification process had nothing to do with Mr. McIntosh's race" and that "the majority of personnel staffing specialist[s] in the [national] office are African-American." The Secretary notes that Mr. Leal's communications leading to Mr. McIntosh's GS 11 level increase addressed neither Mr. McIntosh's race nor prior EEO activity.

Mr. McIntosh was increased to a GS 12 level with a $53,657 salary, effective July 15, 2001. Mr. McIntosh claims that he "performed GS-12 level work" from the first day as an EEO specialist.

Mr. McIntosh's Administrative Claim

On January 2, 2001, Mr. McIntosh engaged in informal counseling to address his GS 11 level increase rather than a retroactive GS 12 level increase. The counseling report, signed by Mr. McIntosh, identifies the December 21, 2000 alleged discriminatory decision not to provide a retroactive GS 12 level increase.

On February 20, 2001, Mr. McIntosh submitted his formal administrative complaint to allege that he was denied a retroactive GS 12 level increase based on race discrimination and retaliation for his past EEO activity. The administrative complaint identifies the December 21, 2000 denial of the retroactive GS 12 level increase as the date when he first learned of alleged discrimination.

Mr. McIntosh's Claims And Damages

Mr. McIntosh proceeds on his Second Amended Complaint for Damages ("SAC"). This Court dismissed several of his SAC discrimination and retaliation claims. After appeal to the Ninth Circuit Court of Appeals and its affirming and reversing in part dismissal of claims, Mr. McIntosh is limited to the SAC's following Title VII discrimination and retaliation claims:

In or about August 2000, McIntosh applied for and was denied a GS-260-09/11/12 EEO Specialist Position. The position was instead given to a lesser qualified non-African-American employee.
In or about December 2000, McIntosh was promoted from GS-9 grade to a GS-11 grade position after being informed that the previous determination of his grade level had been inaccurate.

The Secretary attributes Mr. McIntosh to claim that he was retaliated against for:

1. Filing on January 16, 1998 an EEO complaint to allege that the Fresno center's personnel office used a "screen-out" procedure to eliminate Mr. McIntosh "from the ranking

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2. 1998 communications with the Fresno center personnel office regarding selection criteria for positions; and
3. February 2000 complaints to Fresno center director Ms. Hon about "selection and promotion procedures."2

Mr. McIntosh seeks $39,378 in lost wages from denial of a GS 12 level effective August 13, 2000. Mr. McIntosh claims $300,000 compensatory damages for emotional distress.

Alleged Similarly

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