Opinion
CAUSE NO. IP 99-1192-C H/G
August 6, 2001
ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Dr. Anna Sue Barney was formerly employed by the Department of the Army at Fort Benjamin Harrison in Indianapolis, Indiana. In 1993, the Army announced the impending closing of Fort Harrison. Barney's permanent position in Indianapolis was a casualty of the closing. Barney turned down an opportunity to transfer to Fort Jackson in South Carolina and instead sought to be extended or reassigned in Indianapolis. She remained employed at Fort Harrison in temporary positions until December 1995 when, faced with imminent termination, she retired. During the period of her temporary assignments, the Army never offered Barney a new permanent position in Indianapolis. At the time she retired, plaintiff was 61 years old.
Plaintiff has now sued the Department of the Army claiming that the personnel responsible for employment decisions related to the closing of Fort Harrison engaged in sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(a), and age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a(a). The Army has moved for summary judgment on all claims for relief pursuant to Fed.R.Civ.P. 56. As explained below, the court denies the Army's motion with respect to Barney's claim that she would have been offered a permanent position in the Indianapolis area but for her age. As to all other claims for relief, including all claims under Title VII, the Army's motion for summary judgment is granted.
Summary Judgment Standard
The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is not a substitute for a jury's determination about credibility or about whether a reasonable inference should be drawn from the evidence. Under Rule 56(c) of the Federal Rules of Civil Procedure, the court should grant summary judgment if and only if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Bekker v. Humana Health Plan, Inc., 229 F.3d 662, 669 (7th Cir. 2000).
In determining whether a genuine issue of material fact exists, the court must construe all evidence in the light reasonably most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Rummery v. Illinois Bell Tel Co., 250 F.3d 553, 556 (7th Cir. 2001). The proper inquiry is whether a rational trier of fact could reasonably find for the party opposing the motion with respect to the particular issue. See Bekker v. Humana Health Plan, Inc., 229 F.3d at 669.
Although intent and credibility are critical issues in employment discrimination cases, there is no special rule of civil procedure that applies only to them. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997). In an employment discrimination case, as in any case, the court must carefully view the evidence in the record in the light reasonably most favorable to the non-moving party and determine whether there is a genuine issue of material fact.
Facts recited in the discussion below are stated in the light reasonably most favorable to plaintiff Barney. However, there is a threshold issue concerning the effect in this court of certain statements of fact that were deemed admissions of the defendants during plaintiff's May 1998 Equal Employment Opportunity Commission hearing.
During discovery in the administrative proceedings, Barney served a number of requests for admission on the Army. The Army failed to respond to the requests in a timely manner. Barney successfully argued before the administrative law judge that the statements should be deemed admissions for purposes of the administrative hearing. See H. Tr. at 19-28. Barney now argues that the ALJ's sanction carries over to proceedings in this court. In other words, Barney contends that the statements are conclusive admissions of the Army for purposes of the pending summary judgment motion. The Army contends that the discovery sanction from the administrative proceedings has no continuing effect in this court.
Although neither side cites any clearly controlling authority for its position, the court agrees that the Army is not bound in this civil action by a discovery sanction that was imposed during the administrative proceedings. Discovery in federal sector equal employment administrative hearings is governed by 29 C.F.R. § 1614.109(d) (2001), which provides that the "administrative judge shall notify the parties of the right to seek discovery prior to the hearing and may issue such discovery orders as are appropriate." The Federal Rules of Civil Procedure do not, as Barney seems to assume, automatically apply to administrative discovery. The ALJ's ruling on Barney's motion for sanctions was a discretionary matter.
29 C.F.R. § 1614.109 was recently amended and, as a result, the subsection governing discovery was renumbered. However, the amendments did not change the wording of that subsection. See, e.g., 29 C.F.R. § 1614.109(b) (1998) (text of regulation in effect at time of plaintiff's administrative hearing).
The Army risked sanctions (and potential liability) at the administrative phase by failing to provide a timely response to plaintiffs discovery request. The sanctions, however, were a matter for the administrative law judge to decide according to the discovery guidelines that had been adopted for those proceedings. When a plaintiff who has pursued administrative remedies for alleged employment discrimination decides to file a complaint in a United States District Court, however, the proceedings in federal court are de novo. See 42 U.S.C. § 2000e-16(c); Chandler v. Roudebush, 425 U.S. 840, 861-62 (1976).
Because the court proceedings are de novo, the court will not treat the statements that were deemed admissions in the administrative proceedings as conclusive admissions of the Army. That is, the discovery sanction levied by the ALJ does not carry over to these proceedings. The statements would not be admissible evidence at trial, and thus Barney may not rely on the statements as evidence to avoid summary judgment. Fed.R.Civ.P. 56(e).
Undisputed Facts
Plaintiff Anna Sue Barney was born on April 14, 1934. She holds a doctoral degree and worked for the Army from 1975 until 1995. Her entire service up to her retirement was at Fort Benjamin Harrison in Indianapolis, Indiana. In 1993, the Army announced its plans to close Fort Harrison effective September 1996. At the time of the announcement, Barney was employed with the Mission Division as an Instructional Systems Specialist at the GS-1750-13 level.
Barney was one of approximately 200 Mission Division employees whose positions at Fort Harrison were transferred to Fort Jackson in South Carolina as a result of the closing. On March 31, 1994, Barney received a letter notifying her of the transfer. See Def. S.J. Ex. 7. The letter presented her with the option either to accept or to decline the offer of transfer. It also outlined the consequences of declining a transfer:
If you decline to transfer with your function to Fort Jackson, you will be separated from Federal service no earlier than the date your function moves to Fort Jackson. A decision to decline this offer is binding on you:
a. Upon receipt of your declination, you will be registered in the DoD Priority Placement Program (PPP) for your current series and grade and for other series and grades for which you qualify. If you decline to transfer with your function you will be registered in PPP as a Priority 2 employee. Priority 2 employees are below Priority 1 registrants in the PPP. This means that if a Priority 2 registrant and a Priority 1 registrant match the same position through PPP, the position must first be offered to the Priority 1 registrant. If you are offered employment through PPP at a lower grade, you may be eligible for grade and pay retention.
b. You will be eligible for severance pay if you have not received a valid PPP offer and are not eligible to receive either civilian or military retirement annuity at the time of your separation.
c. You may be offered a temporary appointment after separation if funds and workload are available. If offered a temporary appointment after separation, you will remain registered in PPP for permanent positions.Id. at 1-2. "Priority 1" employees in the Department of Defense Priority Placement Program ("PPP") included those Fort Harrison employees who were not given the option to transfer to Fort Jackson.
Barney did not want to transfer to South Carolina. She was caring for her sick mother in Indianapolis and did not want to try to move her. However, declining the transfer was also problematic because Barney faced a potential separation date of September 30, 1994, which was about six months before she would be eligible for retirement. As a result, if Barney had declined the transfer and failed to secure a new position with the Army in Indianapolis before September 30, 1994, she would have lost both her job and her retirement benefits.
Barney's concerns led her to seek an extension of her reporting date to Fort Jackson from early October 1994 until at least March 1995. The extension would have allowed her to see if she could find another job in the Indianapolis area or if other circumstances would change, and would have allowed her to obtain twenty years of service and to become eligible for retirement.
Mr. Doug Barney (no relation to plaintiff Dr. Anna Barney) was one of the personnel officers responsible for handling issues related to the Fort Jackson transfer. Initially, Doug Barney told plaintiff that he would grant her request for an extension of her reporting date, but only if she agreed to sign her retirement papers that day in April 1994, effective March 1995. Plaintiff was unwilling to accept that condition. As a result, Doug Barney denied plaintiffs request for an extension.
Despite her inability to secure an extension of her reporting date, Barney chose to turn down the transfer to Fort Jackson. See Def. S.J. Ex. 8 (plaintiffs signed notice rejecting offer to transfer, dated April 13, 1994). By declining the transfer, she became eligible for the national Priority Placement Program ("PPP") described in the Army's offer letter. In addition, a second formal placement mechanism, called the Placement Assistance List ("PAL"), was also in place. The PAL program was negotiated between Fort Harrison and the local union to mitigate the effects of the base closing.
The goal of the PPP was to place Department of Defense employees faced with separation in new positions. Mr. Larry Schmalfeldt and Ms. Carole Evans, both of whom worked for the Defense Finance and Accounting Services ("DFAS") Civilian Personnel Office, were responsible for administering the PPP at Fort Harrison.
Even though the Army base at Fort Harrison was closing, some permanent Department of Defense positions apparently were still available in Indianapolis. Plaintiffs Supplemental Statement of Facts ("Pl. SMF") suggests that one source of permanent Department of Defense jobs in Indianapolis would have been through the Defense Finance and Accounting Services unit, which was located on Fort Harrison's campus and continued to perform its function even after the base closing. Pl. SMF ¶ 107. The Civilian Personnel Office ( i.e., the same unit that was charged with administering the PPP at Fort Harrison) played a role in making personnel decisions for the Defense Finance and Accounting Services. Id. ¶ 122.
Under the PPP, employees could register for five different occupational series ( i.e., jobs grouped by relevant skills) and for no more than three pay grade levels below the positions they had previously held. PPP participants also registered for the geographical areas in which they were willing to work. If a job that matched a participant's registration criteria became available, he or she would be considered for the position. However, employees participating in PPP were grouped by priority. If a job matched two participants' registration criteria but the two had different priority levels, the job would be offered to the participant with a higher priority level. PPP participants from Fort Harrison who had declined a transfer to Fort Jackson, as plaintiff had, were classified as "Priority 2" participants.
Initially, Barney registered in the PPP for the 1710 occupational series (educational and vocational training specialist), the 1750 occupational series (instructional systems), the 235 occupational series (employee development), and the 180 occupational series (research psychologist). She set her pay grade parameters at her current grade, GS-13, and three grades lower, GS-12, GS-11, and GS-10. Finally, Barney limited her geographic availability to the area surrounding Indianapolis.
At a later point, Barney amended her PPP registration to add the 343 occupational series and the 301 occupational series, while deleting the 1750 series and 1710 series. In addition, Barney's PPP registration covered occupational code 1740 for at least a portion of the time that she was eligible for placement.
Barney experienced two problems with her PPP registration. First, her paperwork showed incorrect dates for her registration eligibility. The incorrect dates were entered by Carole Evans of the Civilian Personnel Office. Second, there were no GS-10 positions for her relevant skill groups at Fort Harrison. Rather than being permitted to register for GS-9 positions (to ensure that she was able to register for three pay grades below her current level), Barney was required to limit her PPP registration to only GS-11 and above.
The court has found no evidence indicating that Barney was denied an opportunity to be considered for any job as a result of the problems she experienced with her PPP registration.
As of August 1994, Barney had not yet been offered a permanent position through either the PPP or any informal placement channel. She was facing separation from the Army the following month. In order to extend her employment, Barney accepted a temporary position as a child development coordinator. The temporary appointment was initially set for one year ( i.e., it was set to expire in August 1995), but Barney was later able to extend the expiration date until September 30, 1995, by adding some additional duties to the appointment. Her temporary appointment was at the GS-11 level, but her salary was not reduced because she was continuing her federal employment.
By September 1995, Barney was again facing imminent separation. On September 25, 1995, Carole Evans called Barney with the offer of another temporary GS-11 job as a transition services specialist, which was a three month position not to extend beyond December 31, 1995. Before accepting the temporary appointment, Barney asked whether a permanent job might become available prior to September 30. Carole Evans and Gary Stella both told Barney that there would be no other jobs, so Barney accepted the temporary position.
By accepting the temporary appointments, Barney was able to reach 20 years of service and became eligible for retirement. Nonetheless, she was still interested in a permanent job. On December 22, 1995, just before the expiration of her final temporary appointment, Barney attended a meeting with Colonel Querfeld and others to determine whether a permanent position could be found. Colonel Querfeld told Barney that there was a DFAS hiring freeze and that the Army was cutting off funding to her current position. He further advised Barney that because there were no other jobs available on the base, she needed to file her retirement papers so that she would not lose any benefits. On December 29, 1995, Barney signed her Army retirement papers.
Barney claims that the Army discriminated against her on the basis of sex and age by denying her request for an extension of her transfer date to Fort Jackson and by failing to offer her a permanent job while other similarly situated male employees and younger employees were offered and employed in permanent jobs. Additional facts are noted below, keeping in mind the standard that applies on a motion for summary judgment.
Barney contends that the Army's decision to deny her a severance stipend under a program called Voluntary Early Retirement Authority/Voluntary Separation Incentive Pay ("VERA/VSIP") was also a product of discrimination. As further explained below, the court treats her claim to VERA/VSIP benefits as an element of her potential damages rather than as a separate adverse employment action.
Discussion
I. Direct and Indirect Methods of Proof at the Summary Judgment Stage
Title VII of the Civil Rights Act provides that personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a). The ADEA makes it unlawful to discriminate against federal employees who are at least 40 years old based on their age. 29 U.S.C. § 633a(a). These statutes offer federal employees protection from discrimination similar in scope to the protections for employees of private businesses and state and local governments.
A person alleging employment discrimination under Title VII and/or the ADEA can avoid summary judgment in one of two ways. First, she can present direct evidence that the employment decision at issue was motivated by an impermissible purpose. See, e.g., Robin v. Espo Engineering Corp., 200 F.3d 1081, 1088-89 (7th Cir. 2000). Second, she can offer indirect proof of discrimination by introducing evidence adequate to create an inference that the adverse employment decision was based on an illegal criterion. Id.
The general paradigm of indirect proof in cases involving a reduction in force first requires the plaintiff to establish a prima facie case by showing that: (1) she belongs to a class protected by the statute; (2) her qualifications or performance were sufficient to meet the defendant's legitimate expectations; (3) she suffered an adverse employment decision; and (4) other similarly situated employees who were not members of the protected class (or who were at least substantially younger in the case of the ADEA claim) were treated more favorably. See Michas v. Health Cost Controls of Illinois, Inc., 209 F.3d 687, 693 (7th Cir. 2000) (ADEA); Pitasi v. Gartner Group, Inc., 184 F.3d 709, 716 (7th Cir. 1999) (ADEA); Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1113-14 (7th Cir. 1992) (Tide VII).
If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment decision. Russell v. Board of Trustees of the Univ. of Ill., 243 F.3d 336, 341 (7th Cir. 2001). Once the defendant meets that burden, the plaintiff must then offer evidence from which a rational trier of fact could conclude that the employer's proffered reason was a false pretext See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 nn. 13-14 (1973); Russell v. Board of Trustees, 243 F.3d at 341.
A plaintiff can establish pretext by showing that her employer did not honestly believe the reasons it gave for the adverse employment decision. Rummery v. Illinois Bell Tel. Co., 250 F.3d at 557. For example, evidence might indicate that the employer's proffered reasons were not the real reasons or that the reasons had no basis in fact. See Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d 644, —, 2001 WL 682923, at 5 (7th Cir. June 19, 2001).
If a reasonable jury could find that the defendant's explanation for the adverse employment action was a mere pretext for unlawful discriminatory actions, summary judgment is not appropriate. The ultimate burden remains with the plaintiff to persuade the trier of fact that the defendant intentionally discriminated against her based upon her sex or her age. Pitasi v. Gartner Group, Inc., 184 F.3d at 716.
II. Sex Discrimination Claims under Title VII
A. Denial of Plaintiff's Request for an Extension of Her Reporting Date
Barney claims that the Army engaged in sex discrimination when it denied her request for an unconditional extension of her reporting date to Fort Jackson. Such an extension would have allowed her to become eligible for retirement and also would have allowed her to participate in the VERA/VSIP program. Barney has not offered any direct evidence of sex discrimination; she relies entirely on the indirect method of proof.
Plaintiff Barney contends that other people requested and the Army granted delays in their reporting dates for Fort Jackson. See Pl. SMF ¶ 121, citing H. Tr. at 246. However, the only other person identified in plaintiffs briefs or in the cited evidence as someone whose permanent position at Fort Harrison was extended beyond his initial transfer date was Mr. Dan Daly. See H. Tr. at 246 (testimony of plaintiff. As a result, Barney's allegation of sex discrimination in regard to the granting and denial of a transfer date extension is limited to the evidence concerning the Army's treatment of Daly.
Daly originally accepted his transfer to Fort Jackson, but he later changed his mind and participated in a "job swap" procedure. Under this procedure, a Fort Harrison employee with a permanent job who was scheduled to transfer to Fort Jackson could trade places with a Fort Harrison employee who was scheduled for permanent separation ( i.e., not transferring to Fort Jackson). The employee originally assigned to transfer would remain in Indianapolis and would be eligible to retire or to leave his employment taking advantage of the VERA/VSIP program. The employee facing separation would transfer to the permanent job at Fort Jackson. The net effect of a job swap was one permanent employee at Fort Jackson and one employee separated from Fort Harrison — the same result that would have been achieved if the job swap had not occurred. See, e.g., H. Tr. at 174-75 (testimony of Beatrice Overton); Def. S.J. Er. 19 ¶ 15.
Daly traded places with Ms. Amy Troegdon. See H. Tr. at 174-75; Def. S.J. Ex. 19 ¶ 15. By securing the job swap, Daly was able in effect to extend his permanent Fort Harrison job to a point at which he was eligible for retirement. Daly voluntarily retired with VERA/VSIP benefits effective September 30, 1995. See Pl. S.J. Ex. H (personnel information of Dan Daly).
Barney's allegation of sex discrimination regarding the refusal to extend her reporting date fails at two levels. First, looking solely at the prima facie case, the undisputed evidence shows that Barney was offered substantially the same option that was offered to Daly. The Army initially agreed to grant Barney's request for a transfer date extension subject to the condition that she retire at the close of that extension. Pl. SMF ¶ 113. If Barney had accepted the transfer date extension subject to that condition, she and Daly would have been in substantially the same position. That is, she would have been a permanent employee up until she reached retirement eligibility, with the expectation that she would retire at the end of the extension. By giving Barney this option, the Army treated Barney and Daly in substantially the same manner. The differences between the options presented to Barney and Daly are minor enough that Barney cannot make out a prima facie case of sex discrimination based solely on the fact that Daly was later able to achieve an extension of his permanent position through the job swap.
Second, even if Barney had come forward with evidence of a prima facie case of sex discrimination, the Army has provided a non-discriminatory explanation as to how Daly's situation was different from Barney's. The Army's explanation is that Daly — by virtue of initially accepting the transfer of his function to Fort Jackson — was in a position to secure a job swap. Barney was not because she did not accept the transfer. In addition, Daly and Barney were to perform different roles in the transition from Fort Harrison to Fort Jackson. See Def. Br. at 14-15, citing relevant evidence; Def. St. of Add'l Evidence on Reply ¶¶ 345-53.
In her responses to the Army's list of additional material facts, Barney attempted to dispute all facts relevant to Daly's job swap. See Pl. Response to Def. Statement of Additional Evidence on Reply ¶¶ 345-53. However, she did not set forth the grounds for denying those facts pursuant to Local Rule 56.1(f), nor has she come forward with any evidence even suggesting that the Army's job swap explanation was factually baseless. See Wolf v. Buss (America) Inc., 77 F.3d 914, 919 (7th Cir. 1996). As a result, for purposes of summary judgment, the court must accept the Army's explanation that Daly participated in a job swap. The Army's explanation is sufficient to rebut any inference of discrimination that would have been raised if plaintiff had a prima facie case of sex discrimination.
Because Barney has pointed to no other evidence to support her claim that the Army engaged in sex discrimination by denying her request for a transfer date extension, the defendants' motion for summary judgment on that aspect of plaintiffs Tide VII claim is granted. See, e.g., Hoffman-Dombrowski v. Arlington Int'l Racecourse, Inc., 254 F.3d at — 2001 WL 682923, at 5 (affirming summary judgment in favor of employer where plaintiff failed to identify a similarly situated male employee and, in any event, failed to show that the employer's articulated reasons for the alleged adverse actions were pretextual).
B. The Army's Failure to Offer Barney a Permanent Position
Plaintiff properly concedes that she has no direct evidence that she was denied a permanent position prior to her retirement because of her sex. See Pl. Br. at 14. Instead, she proceeds under the indirect method of proof and attempts to establish a prima facie case of sex discrimination by showing that similarly situated male employees were placed in permanent jobs.
Barney has identified three men who allegedly were treated more favorably than Barney because they were placed in permanent jobs between April 1994 and December 1995: Robert Ripperger, Larry North, and Edward Tarantino.
Barney cannot establish a prima facie case of sex discrimination by comparing herself to Edward Tarantino. Tarantino received an offer through the PPP for a permanent job in Virginia — a location outside the Indianapolis commuting area. Unlike Tarantino, Barney never extended her job search parameters in the PPP to include geographic areas outside her local commuting area. As a result, Barney cannot complain that she was not considered for the job that was offered to Tarantino. Under the objective placement procedures established by the PPP, Barney would not have been eligible for that position.
In Plaintiff's Response to Defendants' Statement of Additional Evidence on Reply, Barney has simply denied all of the facts relevant to Tarantino's alleged match for a job in Virginia through the PPP. See, e.g., Pl. Response to Def. Statement of Additional Evidence on Reply ¶¶ 297-301. These bare denials do not comply with Local Rule 56.1(f). They do not set forth the grounds for the objection and/or fail to cite to the evidence or authority that would contradict the Army's asserted facts. Also, Barney's Surreply Brief does not dispute the Army's assertion that Tarantino's job offer was in Virginia.
Robert Ripperger and Larry North received permanent jobs in the Indianapolis area. Ripperger, like Barney, declined a transfer to Fort Jackson. Ripperger and Barney were both GS-13s in June 1994 and they both "had basically the same background." Pl. Surreply Br. at 13. Barney, however, had more time in service. See id.
In June 1994, Ripperger was selected for the permanent position of Employee Development Specialist in the Training and Development Division of DFAS. Ripperger's new position was at the GS-11 level, occupational code 235. At the time that Ripperger received the offer, Barney was registered in the PPP database for the 235 occupational series.
Larry North was a Supervising Sports Specialist (a GS-11 position) until September of 1995. North did not have a college degree. He had matched through the PPP for a job at Fort Lee but had declined the offer. On August 24, 1995, the Civilian Personnel Office found a permanent job for North at DFAS with an effective date of September 24, 1995. The new job was as a Freedom of Information Act Technician (a GS-7, occupational code 303 position).
For purposes of summary judgment, the court must assume that Barney was meeting her employer's expectations, that she was at least as qualified as Ripperger and North for the permanent jobs that the two men received, and that Ripperger and North were otherwise "similarly situated" to Barney. Accordingly, Barney has made out a prima facie case of sex discrimination on the failure to find a permanent position for her.
As for the "similarly situated" requirement, it is clear that Barney, Ripperger, and North were all facing separation from the permanent positions they held prior to the base closing. Because the record shows that personnel faced with separation were sometimes matched with jobs relatively far afield from their prior jobs, the fact that at least North and Barney did not hold the same or equivalent positions at the time of the base closing does not matter here. Cf. Radue it Kimberly-Clark Corp., 219 F.3d 612, 618 (explaining that an employee must show substantial similarity to meet the similarly situated requirement).
The Army has argued that no matter how one slices the burden shifting in this case, Barney's claim under Title VII is also defeated by the nearly even ratio of "similarly situated" men and women Barney herself has identified as receiving permanent jobs. See Def. Br. at 12 (arguing that plaintiff cannot establish even a prima facie case of sex discrimination in light of this evidence). For purposes of her sex discrimination claim, Barney relies on Tarantino, Ripperger, and North as comparable male employees. Then, for purposes of her age discrimination claim, Barney relies on these same three (substantially younger) men, and at least four substantially younger women who were placed in permanent jobs (Lori Hayden, Gail Myers, Diana Lane, and Eileen Van Kavelaar).
The evidence shows that various Army functions at Fort Harrison were being transferred or terminated. Literally hundreds of jobs were affected. Many jobs were transferred, many people were reassigned to new jobs, and some left federal employment. Under these circumstances, the Army's argument raises the following question: What inference of sex discrimination can reasonably be drawn from evidence indicating that some men and some women — in an apparently random distribution — received an offer of permanent employment? The short answer, provided by the Seventh Circuit in § Bush v. Commonwealth Edison Co., is that the right to be free from discrimination is "an individual rather than a group entitlement." 990 F.2d 928, 931 (7th Cir. 1993).
Thus, it is possible for an employer to discriminate against one person on the basis of sex while treating other members of that individual's protected class in a fair manner, although such a case would require some additional evidence of discrimination. See Bush, 990 F.2d at 931. The Army's suggestion that Barney has no prima facie case under Tide VII simply because both men and women received permanent jobs is an oversimplification. Nevertheless, the evidence of treatment of other women would provide relevant evidence at trial.
Plaintiffs prima facie case of sex discrimination shifts the burden to the Army to articulate a legitimate reason why Ripperger and North, but not Barney, received the permanent job offers. In general, the Army's explanation is that it was using both formal and informal channels to find new jobs for the Fort Harrison personnel who faced separation from their employment. See Def. S.J. Er. 20, Schmalfeldt Decl. ¶¶ 4-5.
The Army contends that both Ripperger and North were placed through a formal mechanism — the Placement Assistance List ("PAL"). See Id. ¶¶ 11-12. The PAL was a reduction-in-force avoidance mechanism involving procedures for placing employees declared excess to their organization. Id. ¶ 5. Placement under the PAU system took precedence over the PPP. Id. According to the Army, Pamela Frederick selected Ripperger from the PAL for the Employee Development Specialist position. Id. ¶ 12. North was selected from the PAL for the Freedom of Information Act Technician Position. Id. ¶ 11. The explanation is supported by an admissible sworn declaration and satisfies the Army's burden of articulation. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (employer's burden is one of production, not persuasion; it can involve no credibility assessment).
Without sufficient explanation to create a triable issue of material fact, Barney has simply denied the Army's assertion that Ripperger and North were placed through the PAL. See Pl. Response to Def. St. of Add'l Evidence on Reply ¶ 393 (denying that North was placed through the PAL because there was "no time frame identified"); id. ¶(denying that Pamela Frederick selected Ripperger from the PAL because there was "no time frame identified" and because the Army had spelled Ripperger's name incorrectly). The court therefore must accept the Army's statement as its articulated explanation for what happened to Ripperger and North.
That explanation shifts the burden back to Barney to show that a reasonable trier of fact could conclude that the Army's stated reasons for supplying Ripperger and North with permanent jobs during the reduction-inforce were mere pretexts for unlawful discrimination. This requires Barney to present evidence that would allow a reasonable jury to find that the Army did not honestly believe the reasons it gave for offering the permanent jobs to Ripperger and North — that its explanation is "a lie rather than an oddity or an error." Kulumani v. Blue Cross Blue Shield Ass'n, 224 F.3d 681, 685 (7th Cir. 2000).
Barney has not presented evidence showing that Ripperger and North were not placed through PAL, or that the jobs they were offered should have been filled through some other placement mechanism. Her main argument concerning Ripperger and North is that she was more qualified than they were for the positions they obtained. See, e.g., Pl. SMF ¶¶ 174-76, 240; Pl. Response Br. at 16-17; Pl. Surreply Br. at 12-13. However, evidence showing that she was more qualified for the jobs goes mostly to the prima facie case. Rummery v. Illinois Bell Telephone Co, 250 F.3d at 557, citing Ransom v. CSC Consulting, Inc., 217 F.3d 467, 470 n. 1. (7th Cir. 2000). Barney has not come forward with evidence showing how the PAL procedures worked, how they should have been applied to her, or whether she was even directly "competing" with Ripperger and North under the PAL system.
Barney admits that the PAL program was in place but contends that "its directives were not always followed, and decisions involving PAL were based upon animus toward both the elderly and women." See Pl. Response to Def. St. of Add'l Evidence on Reply ¶ 374. This response begs the question. What were the PAL directives that supposedly were not followed? How did defendants fail to follow the PAL directives when it came to placing Ripperger and North? Barney has not identified evidence in her summary judgment submissions that addresses these critical questions. The fact that she might have been well-qualified for the positions obtained by Ripperger and North is not sufficient to allow a finding that the Army's explanation is pretextual.
Barney's submissions on summary judgment might be read to suggest that the various formal and informal placement mechanisms used at Fort Harrison were applied in an arbitrary manner that defies rational analysis. Under this view, the PAL would sometimes trump the PPP, the PPP would sometimes trump the PAL, and there would always be exceptions that would allow for an informal placement at the Army's convenience. Some evidence in the record does suggest that the Army would have a difficult time explaining every placement decision made during the closing of Fort Harrison according to a single coherent placement system or set of procedures. However, the employment discrimination laws did not require the Army to provide such an explanation or to follow such a practice. The court does not stand in the position of super-personnel department to ensure that an employer's personnel policies are prudent and wise. See O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 984 (7th Cir. 2001); see also Malacara v. City of Madison, 224 F.3d 727, 731 (7th Cir. 2000) ("An employer may hire or refuse to hire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for discriminatory reason." (internal quotations and citations omitted)).
The narrow issue here is whether Barney has identified evidence from which a rational trier of fact could conclude that the Army's explanation regarding Ripperger's and North's placements was a pretext for unlawful discrimination based on sex. She has not done so.
Barney has no direct evidence of sex discrimination. Under the indirect method of proof, Barney has failed to present a triable issue of material fact on the question of pretext. As a result, the Army is entitled to summary judgment on Barney's claim that she was denied a permanent position in violation of Title VII.
III. Age Discrimination
Barney also claims that the Army engaged in age discrimination by failing to place her in a permanent position while routinely finding permanent jobs for other younger employees. The court finds that the facts surrounding the decisions made to place younger individuals in permanent jobs are sufficiently in dispute that the Army's motion for summary judgment on this aspect of plaintiffs ADEA claim must be denied. Below is a summary of the evidence, viewed in the light reasonably most favorable to Barney, that is sufficient to establish the need for a trial to determine whether Barney would have been offered a permanent job but for her employer's motive to discriminate against her on the basis of age.
First, there is the testimony of Mr. Robert Franklin from Barney's administrative hearing. Franklin was the drug and alcohol control officer at Fort Harrison until early 1995. Franklin, along with several other persons including Carole Evans, participated in a task force that dealt with employee transition issues associated with the base closing. He testified that at one of the task force meetings Carole Evans made the following statement:
[A]ll of those individuals that were of retirement age should in fact retire. We had too many people to worry about that did not have any kind of safety net. People of retirement age should just take their retirement and go.
H. Tr. at 107. See also id. at 109, 113. Ms. Beatrice Overton testified that Carole Evans told her that "she'd [Evans] never find Dr. Barney a job." Id. at 187; see also id. at 188-93. As discussed above, Carole Evans played a key role as an administrator under both the formal and informal channels through which individuals facing separation received new appointments.
Evans' own testimony at the administrative hearing suggests that Franklin took her comments out of context and that the comments referred only to those individuals who elected to take early retirement or voluntary separation. See H. Tr. at 622-24. However, a jury could reasonably infer front Franklin's testimony that age played a role in the placement decisions — especially placement decisions made through the less formal channels.
Second, Barney has identified two similarly situated younger employees — Gail Myers and Diana Lane — who were offered permanent positions within days after Barney was told in late September 1995 that she should accept a three month extension of her temporary appointments because there was no prospect of any permanent jobs opening in that time frame. Like Barney, Myers and Lane both had declined their transfer of function and prior to April 1994 had held jobs at or above the GS-11 level. Myers and Lane were both at least ten years younger than Barney. See Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999) (stating that similarly situated younger employees "should be substantially — i.e., at least ten years — younger than the terminated employee"). Barney has satisfied all elements of her prima facie case under the ADEA with respect to the circumstances surrounding the jobs offered to Myers and Lane.
The Army contends that Myers and Lane were in positions different from Barney's at the time they received their permanent job offers because they were faced with imminent separation, while Barney had been offered the three month temporary appointment. While this fact does point out a difference between Barney and Myers and Lane, a reasonable jury could find that the explanation was pretextual.
Viewing the evidence in the light reasonably most favorable to Barney, going into the final week of September 1995, Barney, Myers, and Lane were all facing "imminent" separation from a temporary appointment at the end of the month. On September 25, 1995, Evans called Barney and offered her a new temporary 05-11 job with a not-to-exceed date of December 31, 1995. Barney accepted the temporary job, which was her last position before she retired, only after she specifically inquired about the possibility of a permanent job opening. Evans and her co-worker Gary Stella told Barney that the temporary job was the only opportunity that would be available. Then, within two or three days, Evans participated in discussions that resulted in her offering low-level (GS-3 or GS-4) permanent jobs to Myers and Lane so that they could avoid separation. Barney did not receive a similar offer for low-level permanent employment either in September 1995 or in December 1995 when her brief temporary appointment ended.
In addition, the evidence from the administrative hearing suggests that either Myers or Lane declined the low-level permanent job offer. See H. Tr. at 742. Presumably, that decision would have left an opening for someone like Barney, who had clearly voiced her interest in obtaining a permanent position.
The transfer and termination of various Army functions at Fort Harrison was obviously a complex undertaking. A great deal of the evidence in the record suggests that the employees affected by the base closing were treated fairly and without discrimination. However, viewing the circumstances surrounding the timing of the jobs offered to Myers and Lane in light of inferences that might reasonably be drawn from Evans' statement that people of retirement age should in fact retire, there are disputed issues of material fact that preclude summary judgment as to plaintiffs ADEA claim based on the failure to offer her a permanent job in the Indianapolis area. See, e.g., Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. at 148 ("[A] plaintiffs prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."); Gordon v. United Airlines, Inc., 246 F.3d 878, 889-93 (7th Cir. 2001) (reversing summary judgment where plaintiff had presented evidence from which a jury could infer that the employer's justifications were dishonest).
To the extent that plaintiff is claiming age discrimination based on the earlier denial of a transfer extension, the Army is entitled to summary judgment on that claim. Barney has not come forward with any direct evidence of age-based animus on the part of the relevant decision-maker. The indirect method of proof also fails. The only person Barney has identified as a similarly situated person who received a transfer extension was Dan Daly, who is about four years older than Barney. His treatment could not support a claim of age discrimination.
IV. Additional Matters
A. Voluntary Retirement Incentives
In connection with the base closing, the Army was seeking employees who would be willing to sign up for a program called Voluntary Early Retirement Authority/ Voluntary Separation Incentive Pay ("VERA/VSIP"). The program provided up to $25,000 separation pay in a lump sum to employees who voluntarily agreed to retire or to otherwise separate from federal employment. Barney had received a memorandum explaining the VERA/VSIP program in March 1994, see Def. S.J.Ex. 6; Def. Statement of Material Facts ("Def. SMF") ¶¶ 57, 62.
Barney applied for the VERA/VSIP in December 1995, but her application was rejected because she was serving in a temporary position. Although the March 1994 memorandum expressly stated that "employees serving under an appointment with time limitations . . . are ineligible," Barney contends that she was never told that permanent employees facing separation who accepted a temporary position to extend their appointment would be ineligible for VERA/VSIP.
Barney alleges that the denial of VERA/VSIP pay was a separate act of discrimination, but she has not identified any male temporary employees or younger temporary employees who were allowed to participate in the VERA/VSIP program. Nor has she come forward with any evidence suggesting that other similarly situated employees were given more detailed information about the VERA/VSIP consequences of electing to accept a temporary appointment. As a result, the Army's contention that temporary employees were simply ineligible for VERA/VSIP stands as an unrebutted, non-discriminatory reason that plaintiff was denied VERA/VSIP benefits in December 1995.
Under these circumstances, the proper characterization of Barney's claim regarding VERA/VSIP is that separation pay under the program is an element of her alleged damages on her surviving age discrimination claim. If Barney proves her remaining ADEA claim, she may contend that, absent the discrimination, she would have had a permanent position and would have been eligible to participate in the VERA/VSIP program. Her inability to participate in the VERA/VSIP program as a temporary employee, however, does not present a separate claim under either Title VII or the ADEA.
B. Barney's Retaliation Claim
The Army argued in its opening brief that plaintiffs retaliation claim must fail because she could not establish a causal link between her filing of an EEO complaint in the mid-1980s and her separation from employment at the end of 1995. Def. Br. at 17-19. Barney responded by clarifying that her "First Amended Complaint contains, now, only two (2) Counts: Age and Sex Discrimination. The allegations of reprisal are only set forth as evidence of pretext in support of her discrimination claims, and as a foundation for the animus which followed." Pl. Br. at 23. In light of plaintiffs representation, the court dismisses plaintiffs retaliation claim with prejudice. It remains to be seen whether evidence of any "reprisals" will be relevant to Barney's remaining claim for age discrimination.
C. Barney's "Petition for Judicial Review"
The Army also seek summary judgment on Count One of plaintiffs First Amended Complaint, which is styled as a "Petition for Judicial Review" of the decision by the Administrative Law Judge. See Def. Br. at 10-11; Def. Reply Br. at 17. Barney agrees that this court's review of her discrimination claims is de novo and does not seek to pursue the claim for judicial review. See Pl. Response Br. at 22. Count One of plaintiffs First Amended Complaint is dismissed with prejudice.
Conclusion
The Army's motion for summary judgment is denied with respect to plaintiffs claim that she was denied an offer of permanent employment due to age discrimination. In all other respects, defendants' motion for summary judgment is granted. The court will conduct a short scheduling conference on August 23, 2001, at 4:30 p.m. in Room 330, U.S. Courthouse, to set a date for the trial.