Opinion
Cause No. IP99-1192-C-H/G
December 11, 2001
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Anna Sue Barney worked for the United States Army for more than 20 years at Fort Benjamin Harrison in Indianapolis. She retired on December 31, 1995, in the course of the Army's closure of Fort Harrison. Dr. Barney has sued her former employer, the Secretary of the Army, for sex and age discrimination in connection with her inability to find a new Army job after she declined an offer to move with her job to South Carolina. On August 6, 2001, the court granted summary judgment for the Army on all of Dr. Barney's claims except her age discrimination claim based on the Army's failure to offer her a permanent position in the Indianapolis area. The age discrimination claim was tried to the court on December 3-5, 2001.
As explained in detail below, the court finds that Dr. Barney has failed to prove by a preponderance of the evidence that the Army took any action against her on the basis of her age. The closure of Fort Harrison affected hundreds of Army employees of all ages. The evidence shows that the Army made a generally successful effort to mitigate the economic and other effects of the closure on those employees and their families. Still, as in Dr. Barney's case, the effort was not completely successful in avoiding all involuntary separations.
Temporary jobs were found for Dr. Barney lasting about 16 months beginning in August 1994. In February 1995, she completed 20 years of service, which made her eligible for retirement benefits. Eventually, however, when the last of her temporary jobs ended on December 31, 1995, there was no permanent job available for Dr. Barney. She then elected to retire with retirement benefits rather than be fired and lose those benefits.
Dr. Barney was qualified for several permanent jobs which became available while she was working in her temporary jobs, and which were given to younger displaced employees. She has not shown, however, that her age affected the decisions to assign those other displaced employees to those jobs. Pursuant to Fed.R.Civ.P. 52, the court now states its findings of fact and conclusions of law. The substance of a statement and not its label shall govern whether it is treated as a finding of fact or conclusion of law.
Findings of Fact I. Plaintiff Anna Sue Barney
Plaintiff Anna Sue Barney was born on April 14, 1934. She earned a B.A. in elementary education in the 1950s from the University of Oklahoma. In 1972, she earned a Ph.D. in higher education administration from the University of Oklahoma.
Dr. Barney's entire federal civilian service up to her retirement was at Fort Benjamin Harrison in Indianapolis. Dr. Barney began work for the Army in February 1975, initially as a GS-12 accreditation specialist. Her duties included teaching military officers how to translate skills obtained from their service to the education and work force sectors in the private sector.
From 1991 through August 1994, Dr. Barney held the position of instructional systems specialist, GS-1750-13, step 10 level. Her duties included researching innovative teaching technologies for potential use in Army training, and accrediting Fort Harrison's schools with the North Central Association.
Throughout her employment with the Army, Dr. Barney performed well and received the top level of performance evaluations.
II. The Closure of Fort Harrison
During the final years of Dr. Barney's employment, there were essentially two major components located at Fort Harrison: (1) the Department of Army's United States Soldier Support Center, and (2) the Department of Defense's Defense Finance and Accounting Services ("DFAS").
The Soldier Support Center had two components, the "Mission" (also called "the Schoolhouse") and Base Operations. The Mission was responsible for providing educational and training services to military personnel. Base Operations was responsible for administering and providing ancillary support functions to military personnel and their families, such as recreation and child care. Dr. Barney was a "Mission" employee.
In 1993, pursuant to legislation requiring many military base closures, the Army issued an official statement announcing Fort Harrison's impending closure set for September 1996. The education and training functions carried out by the Mission employees at Fort Harrison were not being eliminated, but were being transferred to other locations, including Fort Jackson in South Carolina. The Base Operations were scheduled for elimination, so that Base Operations employees' jobs were being eliminated rather than transferred.
III. Dr. Barney's Initial Choice Not to Move
On March 31, 1994, Dr. Barney received a letter notifying her that her position was going to be transferred to Fort Jackson and giving her the right to transfer to Fort Jackson if she wished to do so. If Dr. Barney had accepted this transfer to Fort Jackson, she would have kept her permanent position with the same grade, pay, and duties.
Dr. Barney was informed and knew that if she declined the transfer to Fort Jackson, she could be separated from employment with the Army effective September 30, 1994, unless she was offered and accepted another position before then.
On April 13, 1994 (the day before her 60th birthday), Dr. Barney formally declined her transfer to Fort Jackson. Dr. Barney's elderly mother lived with Dr. Barney and was in very poor health, requiring daily nursing care. Her mother's doctor had advised Dr. Barney that her mother probably would not survive a move to South Carolina.
IV. Placement Efforts
The scheduled closing of Fort Harrison meant that at least 500 civilian Army employees could not continue to work there. The Base Operations employees were losing their jobs, and the many Mission employees who chose not to move with their jobs were also losing their jobs.
After the closing was announced, the commanding officer of Fort Harrison and other senior management launched a series of programs and less formal efforts to take care of the post's employees as well as possible. Post managers were not free simply to create new jobs, but they could try to place employees in other jobs, at least temporarily. Where possible, managers also tried to find ways to let employees reach retirement eligibility without losing their benefits. They tried to avoid or minimize involuntary separations from Army employment.
These efforts included efforts to place employees with DFAS, which was scheduled to remain at the site, as well as with other Army operations and other federal agencies, both in the Indianapolis area and throughout the nation. (The overall efforts by Fort Harrison management has since been recognized as a model for managing base closures so as to mitigate harm for civilian employees.) The efforts also included assistance in finding work outside the federal government.
Throughout the time relevant to this matter, DFAS's Human Resource Directorate ("HRD") also known as the Civilian Personnel Office ("CPO") was assigned to provide personnel services to both the Mission and the Base Operations on the base. The CPO was also responsible for administering job placement services programs that were available to civilian employees who were losing their jobs.
Larry Schmalfeldt was the director of the HRD. Carole Evans was a Personnel Staffing Specialist serving all Army activities, which included the Soldier Support Center. Gary Stella was also a Personnel Staffing Specialist. All three played key roles in the efforts to find Dr. Barney another position, and Dr. Barney believes all three discriminated against her based on her age.
The Priority Placement Program ("PPP") was a national job placement program administered by the Department of Defense. The PPP functioned primarily through an automated computer system that identified available positions and "matched" individuals with those positions by the occupational series and geographic area for which they had registered. Once a "match" was detected by the system, the official selecting a person for a position was required, with limited exceptions, to select the "matched" employee.
PPP participants could register for five occupational series, or skill levels, and for three pay grades before their GS Level. Also, applicants registered for the geographic areas in which they were willing to work. Employees were matched to available positions that fit the criteria they had selected. To be placed through PPP, a candidate had to be "sufficiently well qualified" for a position.
Under the PPP, registrants were assigned different priorities. Registrants whose jobs were simply being eliminated were assigned Priority 1. Registrants whose jobs were being moved and who had declined a transfer to Fort Jackson were assigned Priority 2. If a Priority 1 and Priority 2 candidate both matched for the same vacancy, the position would be offered first to the Priority 1 candidate.
The CPO was also responsible for administering another job placement program known as the Placement Assistance List ("PAL"). Individuals did not have to register separately for the PAL. They were automatically added to that program when they registered for the PPP. Like the PPP, the PAL program matched candidates with available positions by job occupational codes.
Unlike the PPP which searched and matched candidates for jobs throughout the country, PAL was a local placement initiative which was used to place only Indianapolis area candidates in local jobs. Under PAL, candidates did not have to be "sufficiently well qualified" to be considered for a position. They could be considered for positions for which they were "minimally qualified." Also unlike the PPP, PAL was not mandatory for the selecting supervisor. If a local candidate matched for an available position, the selecting official could exercise discretion as to whether to hire that person.
As part of the transition efforts, the Army also offered eligible employees early retirement benefits and voluntary separation incentive payments ("VSIP") of up to $25,000. Employees who accepted early retirement or VSIPs were not eligible for participation in the various placement efforts, which were intended to provide continued employment.
V. Dr. Barney's Placement Efforts
Dr. Barney registered for the PPP on April 28, 1994. Because her function was scheduled to be transferred on September 30, 1994, she was eligible to participate in PPP until September 30, 1995. Dr. Barney was a Priority 2 candidate in the program because she had declined the offered transfer to Fort Jackson.
Dr. Barney limited her PPP registration to vacant positions to the Indianapolis area. Dr. Barney imposed this limit because of her mother's poor health and continuing need for care. As a result of this geographic limit, Dr. Barney substantially increased the risk that she would not find another job with the Army.
Neither the court nor the Army has any quarrel with or criticism of Dr. Barney because of her decision to decline the transfer in light of her mother's condition. Nevertheless, the Army was not responsible for that situation. For purposes of the Age Discrimination in Employment Act, after Dr. Barney declined the offered transfer, the Army was legally obligated not to treat Dr. Barney less in placement efforts, because of her age, than it treated similarly situated younger employees. The Army was not legally obligated to offer her another permanent job.
For the PPP, Dr. Barney initially set her parameters at her current GS grade of 13 and three grades lower, 12, 11, and 10. Dr. Barney initially registered in 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). On August 26, 1994, Dr. Barney added the 1701 occupational series to her PPP registration. On October 21, 1994, she amended her PPP registration to add the 343 occupational series (management and program analysis) and the 301 occupational series (administration and program) while deleting the 1750 and 1710 series. On March 20, 1995, Dr. Barney added the 1740 occupational series to PPP registration and dropped the 180 occupational series. On April 26, 1995, Dr. Barney changed her PPP registration to indicate that lowest GS level she would consider was GS-10.
Apart from these formal programs, Dr. Barney also participated in job fairs and made efforts on her own to find a suitable position.
VI. Dr. Barney's Temporary Position at the Child Care Center
On or about August 20, 1994, about six weeks before her permanent job would have come to an end, Dr. Barney accepted a temporary position as Child Development Services Coordinator. This position was with the Child Care Center, which was part of Base Operations, and an occupational code 1701. The position saved Dr. Barney's grade, pay, and all benefits from her GS-13 position. The Child Care Center job was scheduled to last no later than August 20, 1995, but that date was later extended to September 30, 1995.
The selecting official for the Child Care Center position was Bill Horvath. He had planned to select an internal candidate for the director's position. As part of the efforts to place affected employees, however, Horvath was convinced by Carole Evans, among others, to offer the position to Dr. Barney. Dr. Barney was qualified for the position by reason of prior experience, though her relevant experience had been obtained many years earlier (more years than the Army ordinarily deems relevant for current decisions).
In other words, the Army made some significant and unusual efforts, and stretched some standard practices, for Dr. Barney's benefit in this instance. As a result, Dr. Barney was able to work past February 1995, which completed 20 years of service and made her eligible for a retirement annuity. This is not the stuff of age-based animus, or any other kind of animus, against Dr. Barney.
VII. Stella's Efforts for Dr. Barney
Sometime before late March 1995, CPO's Gary Stella learned of a job in the 1740 series at the GS-11 level in the Indianapolis area. An employee named Dan Reed had "matched" for the position but had turned it down. Stella went out of his way to call Dr. Barney about the position. At that time, Dr. Barney was not registered through the PPP and PAL for the 1740 series of jobs. Stella thought Dr. Barney might be qualified and interested, however, so he called her to let her know about the opening and to suggest that she change her registration to add the 1740 series. As Stella wrote in early 1996 (Ex. 30), he "walked a very fine line by mentioning the job at all," but he rationalized the call as "informational" on the ground that Reed had been working under Dr. Barney's supervision.
The court expresses no view as to whether, as a matter of Army personnel policy, Stella was right, wrong, or somewhere in between in talking with Dr. Barney about the opportunity. But right or wrong, his effort on her behalf is a strong indication that Stella in particular and, to a lesser degree, the CPO staff in general had no animus against Dr. Barney based on her age.
In response to this information from Stella, Dr. Barney did not amend her registration to add the 1740 series. She believed that the job would require her to be away from home overnight too often to allow her to provide the care she needed to give her mother. It is not clear that Dr. Barney was correct about this, but that does not matter for present purposes.
VIII. Dr. Barney's Final Temporary Position
Dr. Barney's initial temporary position as director of the Child Care Center was scheduled to end on September 30, 1995. By mid-September, she did not yet have a new position lined up, so she was facing imminent separation at the end of the month. The evidence shows that Bill Horvath, the director of the transition center called the "HEART Center," had somehow found funding for an additional temporary position for a Transition Services Specialist from October 1, 1995, to December 31, 1995.
Horvath contacted CPO, told them of the position, and told them that he wanted Dr. Barney to fill that position. On Monday, September 25, 1995, CPO's Carole Evans contacted Dr. Barney and offered her that temporary position. Dr. Barney would have preferred a permanent position, but Evans told her there were no other permanent positions available. When Evans made that statement, it was true, although later in the week two GS-3 positions became available at DFAS, as discussed below. When Dr. Barney decided to accept the temporary position at the HEART Center, it appeared to her and to the CPO staff that if she did not accept the position, her last day of work would be Friday, September 30th. Dr. Barney accepted the position at the HEART Center effective October 1st. She worked until the end of the year in that job, which required her to assist other employees in the transition to other jobs, including jobs in the private sector.
IX. Dr. Barney's Decision to Retire
On Friday, December 22, 1995, Dr. Barney met with Colonel Querfeld, Bill Horvath, and Joe Carter, who was her direct supervisor at the HEART Center. During that meeting, Colonel Querfeld and the others told Dr. Barney that there were no other positions available for her when her temporary position would end a week later. They also made sure that Dr. Barney understood that if she did not submit retirement papers by Friday, December 29, 1995, her employment would be terminated, and she would lose the retirement benefits for which she was eligible. On Friday, December 29, 1995, Barney signed her retirement papers from the Army. She would have preferred to stay employed with the Army, but that choice was not available to her at the time.
X. Other Positions
In her effort to demonstrate age discrimination, Dr. Barney presented evidence concerning six other jobs which became available from June 1994 through September 1995, and which were filled by younger employees from Fort Harrison.
A. Robert Ripperger
Robert Ripperger was a GS-13 who also worked in the "Schoolhouse" at Fort Harrison. Ripperger was born on December 27, 1947, and thus is about 13 years younger than Dr. Barney. He also declined his job transfer to Fort Jackson, and he began looking for other work.
On June 14, 1994, Ripperger was selected for the position of Employee Development Specialist at DFAS, occupational code 235, GS-11 Level. Pam Frederick was the Chief of Training for the CPO at DFAS, and she was the selecting official. Frederick did not consider any other employees for the position, nor was she required to do so. She was looking for a person to handle computer-based training and non-resident training, and to manage contracts with outside service providers. She had worked with Ripperger several times before. She had been impressed with his skills. Perhaps most important, she had been impressed by his willingness to go out of his way to help Frederick and her colleagues. After the closure announcement, Ripperger had visited Frederick and had told her he was very interested in joining Frederick's training operation for DFAS. Frederick was impressed by his initiative and interest.
Dr. Barney has pointed out that Ripperger had not worked in a 235 position before and that the description of a 235 position in the federal Handbook of Occupational Groups and Series says nothing about managing contracts. The fact that Ripperger's record did not fit neatly into the Army's bureaucratic categories for the job does not mean that he was not well qualified for the position. The evidence shows that Frederick had a need for a person, and she knew Ripperger and his skills and his commitment to good work. She believed he would do a good job. In this highly informal selection, Frederick did not consider anyone else for the job. When Frederick selected Ripperger for the GS-11 position, she knew Dr. Barney but had never worked with her or for her. There is no persuasive evidence that Frederick even considered Dr. Barney or that Dr. Barney's age had any influence on Frederick's decision.
Unfortunately for Frederick, Ripperger received a promotion to another position in another area of DFAS after only a few months. Frederick did not fill the position after Ripperger left, although Dr. Barney asked her about the possibility of filling it.
In an attempt to show age discrimination, Dr. Barney offered evidence from Bea Overton, who worked as the transition services manager at Fort Harrison. Overton testified that sometime near Halloween in 1995, she talked with Frederick about Dr. Barney. Overton testified at trial that Frederick told her that nobody at DFAS wanted a 60 year old female Ph.D. Overton's testimony on this alleged statement is not credible. In the EEO administrative hearing in this matter in 1998, Overton testified that Frederick had told her that Dr. Barney would never be placed at DFAS. In that hearing, however, Overton never mentioned in that testimony the key feature of her trial testimony, Frederick's supposed reference to Dr. Barney's age (or her sex). See Hearing Tr. 191-92. When confronted at trial with this omission, Overton said she had not been asked the same specific question. Yet Overton and Dr. Barney's lawyer, who was questioning her at the hearing, were both fully aware at that time of the potential significance of such a statement, and the hearing testimony is silent on the point.
For essentially the same reasons, the court also does not credit Overton's trial testimony to the effect that CPO's Gary Stella told her that Dr. Barney would not be placed, that she was old enough to retire, and that she needed to retire.
B. Lori Hayden
During late 1994, Lori Hayden held a GS-9 Level position at the Child Care Center, where Dr. Barney was her supervisor since taking the temporary position as director in August 1994.Hayden, who was born in 1961 and is much younger than Dr. Barney, was selected on or about January 8, 1995, for the position of Training Specialist at DFAS, occupational code 235, GS-9 Level. Hayden matched for this position on or about January 5, 1995. The selecting official was Pam Frederick. Frederick was not asked any questions at trial about the Hayden selection. There is no evidence that Frederick did or did not consider Dr. Barney for the position. There is no evidence that Dr. Barney's age played any role in Frederick's selection of Hayden for the DFAS position.
C. Dr. Eileen Van Kavelaar
In the spring of 1995, the Army's Indianapolis Recruiting Battalion had a vacancy for an Educational Services Specialist at the GS-11 level in the spring of 1995. The position was an opportunity for any of several educators who had worked at the "Schoolhouse" at Fort Harrison. The person who decided whom to hire was Major Lindsey Smith, the executive officer of the Recruiting Battalion. Major Smith was directed to contact the CPO to find suitable candidates.
Pursuant to the PAL program, Carole Evans selected files of candidates and set them aside for Major Smith to review. Major Smith reviewed the files during one fairly long workday. From among those files, he selected Dr. Eileen Van Kavelaar for the position. He made the final selection on or about April 30, 1995.
Major Smith did not recall the names of any other candidates whose files he reviewed, nor did he know Dr. Barney. It is most likely that Dr. Barney's file was among those he reviewed. Carole Evans testified that she included Dr. Barney's file, and Dr. Barney testified that Evans had told her at the time that her file was included.
Evans' selection of files was not a strictly mechanical exercise that followed rigidly the bureaucratic categories of positions and experience. The evidence indicates that she selected files for employees with knowledge, skills, and abilities suitable for the position.
Dr. Van Kavelaar is about 15 years younger than Dr. Barney, but there is no evidence that Major Smith took age into account in making his selection. Major Smith had experience as a personnel administrator and was thoroughly familiar with the fact that age discrimination is unlawful. Dr. Van Kavelaar was well qualified for the position, as was Dr. Barney. There is no evidence that Carole Evans or anyone else at CPO tried to influence Major Smith's selection from among the candidates whose files were provided.
D. Larry North
Before the closure of Fort Harrison, Larry North had worked as a GS-11 Level, Supervising Sports Specialist who ran the gym at the fort. He had a high school education but no college degree. His position was part of Base Operations, so it was being eliminated by the closure. Through the PPP, North had been offered a move to a post in Virginia. He had turned it down, which reduced him to Priority 3 in the PPP program. When friends questioned his decision, North said that he would be all right, and that Larry Schmalfeldt would "take care of him."
North is 20 years younger than Dr. Barney. He was selected on or about August 24, 1995, for the position of Freedom of Information Act ("FOIA") Technician at DFAS, occupational code 303, GS-7 Level, which was a four-level reduction for North. The job was in the public affairs office of DFAS. The selecting official was Virginia Johnson. Johnson did not testify at trial. There is no evidence that she considered Dr. Barney for the position or even that she knew Dr. Barney. There is certainly no evidence that age played any role in the selection of North or the non-selection of Dr. Barney for this clerical position.
Bea Overton testified that Larry North later told her he really did not have anything to do in the FOIA job. The evidence does not show, however, that post management created a new job for North. It is, alas, not shocking that someone in such a position had little to do. Efforts to control the federal budget would no doubt be easier if the budget had line items for "waste," or if federal personnel tables specifically identified existing jobs as unneeded or excessive.
As for North's comment about Schmalfeldt taking care of him, the court credits Schmalfeldt's testimony to the effect that a lot of the nervous people at the base said similar things about him. Schmalfeldt and North were friends after years of basketball at the Fort's gym, but there simply is no evidence that Schmalfeldt influenced Johnson's selection of North. There also is no evidence that Schmalfeldt had any animus against Dr. Barney, let alone age-based animus.
Robert Franklin testified that he had heard Schmalfeldt use the term "deadwood" in the context of telling another person not to place "deadwood" at DFAS. The use of the term does not carry any clear implication of age-based animus, although Franklin testified without objection that he interpreted the comment as referring to older employees. In light of the totality of the evidence, including the extensive efforts made on behalf of Dr. Barney, other older employees, and all employees of any age, the court credits Schmalfeldt's testimony to the effect that he probably used the term in trying to convince other managers that the affected employees would be able to contribute to DFAS: "We're not asking you to place deadwood at DFAS," or words to that effect.
E. Gail Myers Diana Lane GS-3 Positions
On Wednesday, September 27, 1995, the day after Dr. Barney accepted the new temporary position at the HEART Center, CPO director Larry Schmalfeldt obtained permission from DFAS director Gregory Bitz to fill two new GS-3 positions in DFAS. One was for a secretary and the other for a voucher clerk. Bitz and Schmalfeldt were expecting to transfer some additional work to the DFAS Indianapolis post from DFAS satellite facilities around the country. Schmalfeldt expected that the transfer of work might lead to hundreds of jobs in Indianapolis, or possibly even more. No final decision had yet been made on that transfer, however.After receiving permission from Bitz to fill the two GS-3 jobs, Schmalfeldt checked with his staff at the CPO about who was facing imminent separation from Army employment. Carole Evans told him that Gail Myers and Diana Lane were both scheduled to be separated at the end of the week. Schmalfeldt directed Evans to offer the jobs to Myers and Lane. Myers and Lane were both 13 years younger than Dr. Barney.
Evans asked about others in temporary jobs, and she specifically mentioned Dr. Barney. Evans also asked about others who had already been separated from their Army employment. Schmalfeldt said that Dr. Barney was already in a temporary position that would take care of her until the end of the year. He expected, and he told Evans, that they would be able to find something else for Dr. Barney later, and that they needed to offer these jobs to those still facing imminent separation. As for the recently-separated employees, Schmalfeldt believed that CPO's obligation toward them was not as pressing because they had already left.
Evans offered the jobs to Myers and Lane. Myers accepted. Myers is an "ABD" (all-but-dissertation) in English, and she had worked in a GS-12 job as a supervisory Instructional Systems Specialist. She had then obtained a temporary GS-11 position at the finance school slated to end September 30, 1995. She needed another job, so she accepted the secretarial GS-3 job the same day it was offered. Her pay and grade level as a GS-12 were to be saved for about two years. Even though she wanted to do better work, she never found an opportunity for repromotion in the next two years, at the end of which she left Army employment for a private job.
Lane declined the offered GS-3 job as a voucher clerk. Evans then filled the job by offering it in turn to three employees who had already been separated from employment. These were Karen Randall-Skaggs, Larry Muncie, and William Watts, who are all less than ten years younger than Dr. Barney. (Randall-Skaggs is three years younger, Muncie is four years younger, and Watts is nine years younger.)
In the absence of direct evidence of age-based animus, and there is no such evidence here, a plaintiff must show that "substantially younger" employees, at least ten years younger, received more favorable treatment. E.g., Miller v. Borden, Inc., 168 F.3d 308, 313 (7th Cir. 1999); Hartley v. Wisconsin Bell, Inc., 124 F.3d 887, 892-893 (7th Cir. 1997).
The court finds that, at the time Dr. Barney accepted the temporary position at the HEART Center on September 26, 1995, Evans and Schmalfeldt did not know that these two GS-3 positions would become available. The court also finds that Schmalfeldt honestly believed in those last few days of September 1995 that there was a good chance that another permanent position would become available for Dr. Barney before the end of the year. As things turned out, however, that did not happen, and Dr. Barney had no real alternative but to retire.
XI. Evidence on Retirement Eligibility
Dr. Barney attempted to prove she was the victim of age discrimination by showing that the CPO's placement efforts discriminated between those employees who were eligible for retirement and those who were not. The theory was that employees who were eligible for retirement had a "safety net" that was not available to other employees, and that the CPO staff made a conscious decision to make greater efforts on behalf of employees who were not eligible for retirement.
The court is not convinced that such discrimination occurred, even if it were illegal. The evidence shows that the Army talked to affected employees about retirement eligibility, which was obviously an important factor for many employees' individual decisions: Should I accept a transfer of my job to South Carolina? What are my prospects in other facilities? What benefits would be available to me if I left Army employment and looked for some other type of work?
Retirement eligibility did not always correlate with age. For example, Mark Vollmer took early retirement at age 45 or 46, when he was 14 or 15 years younger than Dr. Barney, who either was not yet eligible for retirement or had just attained eligibility. The ADEA prohibits only discrimination based on age, not on factors that may be positively correlated with age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-13 (1993) (firing worker because his pension benefits were about to vest would not violate ADEA; employer could base decision on factor other than age even if it was positively correlated with age).
It is not surprising that CPO staff and others would have believed that for at least some employees who were eligible to retire, retirement would end up being the best choice. That belief falls well short, however, of Dr. Barney's contention that CPO staff believed that all employees who were eligible to retire or that Dr. Barney herself should retire. The evidence does not show that CPO staff held such a belief.
Dr. Barney called Robert Franklin, who testified about a conversation with Carole Evans about Dr. Barney. Franklin claimed that he had a private conversation with Evans in which she said that Dr. Barney was eligible to retire, that she was old, and that she should retire. Franklin's testimony about this conversation is not credible. When he testified about it during the administrative hearing, he did not mention the reference to Dr. Barney being "old." Hearing Tr. 113. That comment would have been highly relevant both when it was made and during the hearing. Yet Franklin, who was fully familiar with employment discrimination law, first mentioned it in the trial in this case. In addition, in light of the hostile relationship between Franklin and Evans, it is highly unlikely that she would have had a private conversation with him in which she confessed to an unlawful discriminatory motive or bias. It should also be noted that Franklin, in pursuing his own EEO complaint, identified Dr. Barney as a witness to testify about comments that Evans had supposedly made about Franklin himself.
The evidence also shows that where employees were close to the threshold for qualifying for retirement benefits, the Army was prepared to make energetic efforts to give them work to do at least until they reached the threshold. Larry Schmalfeldt was clear and persuasive on this point. The evidence does not show, however, that the Army relaxed its efforts on behalf of employees who were eligible for retirement but who continued to work and to seek work.
Conclusions of Law
The court has jurisdiction over the action and the parties.
The Age Discrimination in Employment Act makes it illegal to discriminate on the basis of age against federal employees who are at least 40 years old. 29 U.S.C. § 633a(a). To prevail on her claim of age discrimination, Dr. Barney must prove by a preponderance of the evidence that her age had a decisive effect, that is, a "but for" effect, on the Army's decisions about whether she was offered a different permanent job before she retired on December 29, 1995. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (age must have had "determinative influence" on decision), quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993); accord, Miller v. Borden, Inc., 168 F.3d 308, 312 (7th Cir. 1999) (plaintiff must show adverse action would not have been taken but for employer's age bias), citing Adreani v. First Colonial Bankshares Corp., 154 F.3d 389, 393 (7th Cir. 1998).
As set forth in detail in the findings of fact, Dr. Barney has failed to prove this essential element of her claim, so the Army is entitled to judgment in its favor on her age discrimination claim.
In light of the evidence presented, a final word is in order regarding the entire placement effort as Fort Harrison closed. It was not a neat and internally consistent effort. It was a not atypical effort by people in a large and bureaucratic organization, both in personnel and throughout the relevant organizations, to do the best they could for themselves and the greatest number possible of their co-workers. The placement effort included some formal programs and lots of individual initiatives. Individual officials found a little extra temporary funding here, obtained a short delay in transfer there, used a little flexibility in job qualifications or experience requirements in some cases, or arranged job swaps using VSIPs in others.
With so many people making so many efforts, it is not surprising that the results were sometimes inconsistent. Virtually none of the decisions involved the elaborate procedures the Army ordinarily employs for so-called merit selections of civilian employees for promotions. Decisions were hurried and were not documented particularly well. There was plenty of room for friendships and personal loyalties to play a role in determining who got a new job and who did not through these highly informal processes.
The issue under the ADEA, however, is not whether Dr. Barney was treated as well as other employees. Nor is the issue whether she was treated fairly in some abstract sense. The issue is whether the Army intentionally discriminated against her based on her age by the actions of several personnel specialists (who were thoroughly familiar with the fact that age discrimination is illegal). The answer is no, so the Army is entitled to judgment, which shall be entered.