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THE COURT: Why are we going into this, Mr. Hartmann? I know that he lied. You can't say it much more clearly than that. MR. HARTMANN: That was the point. This was the official who was on the ground with regard to all of these things. THE COURT: The depart-ment itself has admitted it. MR. HARTMANN: They aren't the witness though, your Honor, so I just wanted to proffer that. THE COURT: I am certainly going to accept the depart-ment's representations that this gentleman lied under oath.
--Trial Tr. v. 2, p. 209, l. 13
"THE COURT: The government's position is what? And do you admit, by the way, or have you admitted that there is no basis for those statements of Mr. Sewell's? MS. WELLS: Yes, I believe in interrogatory answers we did and I don't have it in front of me. I don't know if it was interrogatory answers themselves but we indicated in fact that the statements that Mr. Sewell made at that time were not correct. THE COURT: Were not true; is that right? MS. WELLS: Were not true. THE COURT: I always like to use real English."
--Trial Tr. v. 1, p. 126, l. 22
"The incident involving security for President Bush was of an entirely different nature. It was offensive and deeply insulting to a loyal American who had spent her life in service to her government. It was unfathomable to the Court. Moreover, the government offered very little convincing evidence in explanation, other than to put Plaintiff to her proof and question whether it even happened. n33 - - - -Footnote- - - - 33. Charles P. Clapper, Jr. succeeded Plaintiff as Acting Regional Director, after she submitted her resignation. He testified that he was not aware that Plaintiff had been told that she could not attend the Independence Park ceremonies with the President and that he was satisfied that there had never been any direct orders to keep her out of the secure areas. However, he could not recall whether her picture had been circulated by law enforcement people, and indicated it could have been. He indicated that he talked with the law enforcement people and was satisfied that she would not pose a threat to the President. The Court found his testimony very vague and unspecific on crucial points. - - -End Footnote- - -"
"the Court concludes that Plaintiff has easily carried her burden of proof and established a prima facie case that she was denied her bonus in retaliation for filing a discrimination claim against the agency. The government offers no legitimate nondiscriminatory reason to explain the agency's actions other than a formalistic denial that, neither the PRB, nor the ERB considered gender, age, nor the fact that Plaintiff had filed a discrimination complaint. n29 Consequently, the Court concludes that, having considered all the evidence presented by the Plaintiff as well as having rejected the [*60] pro forma denials of the agency, the Plaintiff has proven, by a preponderance of the evidence, that the failure to award a bonus to Plaintiff for the 1990-1991 rating year was retaliatory. n30"
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LEAD TRIAL AND APPELLATE COUNSEL
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
L. LORRAINE MINTZMYER, Plaintiff, v. BRUCE BABBITT, Secretary of the United States Department of Interior, Defendant.
Civil Action No. 93-0773 (GK)
1995 U.S. Dist. LEXIS 1182; 66 Fair Empl. Prac. Cas. (BNA) 1804
January 12, 1995, FILED COUNSEL: For L. LORRAINE MINTZMYER, plaintiff: Carl J. Hartmann, New York, NY; Paul J. Ruskin, Douglaston, NY; Mary C. McDonnell, MCDONNELL & MCDONNELL, Washington, DC. For JAMES H. RIDENOUR, in his capacity as the Director, National Park Service, and BRUCE BABBITT, in his capacity as the Secretary of the U.S. Department of Interior, defendants: Carlotta P. Wells, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC.
FINDINGS OF FACT AND CONCLUSIONS OF LAW INTRODUCTION Plaintiff Lauretta Lorraine Mintzmyer brings this action for sex and age discrimination, constructive discharge, and retaliation against Defendant Bruce Babbit in his official capacity as Secretary of the Department of Interior. Plaintiff alleges that the Defendant discriminated against her on the basis of her sex and age when she was reassigned from the position of Regional Director of the Park Service's Rocky Mountain Region in Denver, Colorado to the position of Regional Director of the Park Service's Mid-Atlantic Region in Philadelphia, Pennsylvania and was refused accommodations given to similarly situated, high-ranking males at the Department; that the Defendant retaliated against her by making an "improper" and false settlement offer in response to Plaintiff's equal employment opportunity claim, and by denying her a Senior Executive Service bonus and step increase; and that she was constructively discharged because her ability to manage her staff in the Mid-Atlantic Region was undermined by Defendant. Defendant contends that Plaintiff was not treated differently [*2] from similarly situated male employees; that there were legitimate management reasons for reassigning Plaintiff; that there was no retaliation against Plaintiff because of her equal employment opportunity claims; and that it took no actions to cause Plaintiff's alleged constructive discharge. The case was tried before the Court on November 1-7, 1994. The parties submitted, in addition to their pretrial briefs and memoranda, proposed findings of fact and conclusions of law. Upon consideration of the testimony of witnesses, the exhibits, and the entire record, the Court, pursuant to Fed.R.Civ.P. 52, enters the following findings of fact and conclusions of law. FINDINGS OF FACT I. Parties Plaintiff Lauretta Lorraine Mintzmyer was an employee of the National Park Service ("Park Service"), United States Department of Interior ("Department"), from July 7, 1959 until April 4, 1992. During her career with the National Park Service, Plaintiff achieved extraordinary professional success. She rose from an entry level GS 4 Clerk/Typist to the position of Regional Director. She received the highest award - the Distinguished Service Award - offered in the Department during the course [*3] of her career. She was the first woman to be named superintendent of a major Park Service area. She was the first woman deputy director of a region. She was the first and only woman to serve as a Park Service Regional Director and headed more Regions (3) than any other person in the Park Service's history. She was also the most decorated female employee in the Park Service history. She was considered a highly competent, extremely effective, and valuable senior manager in the Park Service who was dedicated to the goals and mission of the Park Service to protect the treasures of our national park system. As Regional Director of the Rocky Mountain Region in Denver, Colorado, Plaintiff was the top management official for the Park Service within the Region and reported directly to the Director of the Park Service. Her responsibilities were broad and included oversight of the Region's park units and implementation of Park Service policies and procedures. She consulted frequently and regularly with the Director and other Park Service officials as well as others throughout the Department about major and controversial issues within the Region. She met, briefed and consulted with Congressional [*4] representatives as well as state and local governmental officials and citizens on a frequent basis. One of Plaintiff's duties as Regional Director for the Mid-Atlantic Region was to serve as co-chair of the Greater Yellowstone Coordinating Committee ("GYCC"). The GYCC was established in the 1960's and was comprised of both Department of Interior Park Service employees and Department of Agriculture Forest Service employees. The mission of the GYCC was to develop a plan for the integrated management of National Parks in the area. The GYCC coordinated and drafted a document setting forth recommendations and goals relating to the greater Yellowstone area in 1990 which became known as the Vision Document. Congress mandated the preparation of this document. The purpose of the document was to develop coordination guidelines between the National Park Service and the Forest Service in order to facilitate protection of the Greater Yellowstone Area's ecosystem. Because early drafts of the Vision Document contained controversial recommendations, S. Scott Sewell, the Principal Deputy Assistant Secretary for Fish, Wildlife and Parks at the Department, took control of the drafting process in October [*5] of 1990. n1 It is fair to say that Plaintiff and Sewell had very different, and incompatible, views about the Vision Document. On March 21, 1991, Sewell, a political appointee, demanded that Plaintiff, a career Civil Service employee, be reprimanded for allegedly lobbying members of Congress in February of 1991, while attending briefings on the Hill with legislative aides and committee staff members to discuss activities in their area of interest. Upon investigating the serious charges made by Sewell, the Director of the Park Service concluded that Plaintiff had not been lobbying, had instead been engaged in appropriate informational activities, and that there was no basis for such a reprimand. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n1 All of Plaintiff's complaints about the manner in which efforts were made to redraft the Vision Document are being heard before the Merit Systems Protection Board under the Whistle-Blower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (1989) (codified at 5 U.S.C. Sec. 7701), and the Court makes no attempt to address those allegations. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*6] II. Organization of the Department of Interior The Park Service is a bureau within the Department of Interior, and is comprised of ten regions, each of which is managed by a Senior Executive Service ("SES") Regional Director. The Director of the Park Service is responsible for its overall operation and reports to the Assistant Secretary for Fish, Wildlife and Parks. The Regional Directors communicate with the Director on an average of once a week on various issues of importance to each individual Region and Regional Director. The Performance Review Board ("PRB") reviews recommendations for bonuses submitted by the Director of the Park Service as well as those submitted by the Director of the Fish and Wildlife Service. The PRB is comprised of at least four and not more than seven SES members designated by the Assistant Secretary for Fish, Wildlife and Parks. Those members must also be approved by the Executive Resources Board ("ERB"). The majority of the PRB members are career SES employees. The Chairman of the PRB in 1991 was Joseph Doddridge, Staff Assistant to the Assistant Secretary for Fish, Wildlife and Parks. The other members of the PRB during the 1990-1991 rating year [*7] were Edward L. Davis, Associate Director for Budget and Administration; Jay Gerst, Assistant Secretary for Policy, Budget & Administration; and Sam Marler, Assistant Director for External Affairs. The ERB acts on behalf of the Secretary of the Department of Interior to develop and administer the Department's program for managing its executive resources and ensuring the selection of individuals capable of administering and managing the Department's many programs. The ERB is responsible for overseeing all personnel policies and procedures within the Department that affect SES employees. The ERB also influences the movement of SES employees and the distribution of SES positions within the Department. The ERB's functions include approving recommendations of individuals to fill SES positions; developing training opportunities for SES individuals; providing guidelines and standards for the SES Candidate Development Program; approving performance ratings, bonuses and level increases for SES employees; and authorizing reassignments of SES employees from one SES position to another or from an SES position to a non-SES position when the employee retains the same SES pay level in the non-SES [*8] position. All three of the members of the ERB, during the 1990-1991 rating year, were political appointees: R. Thomas Weimer, Chief of Staff to the Secretary; John Schrote, Assistant Secretary for the Office of Policy, Budget, and Administration; and Charles E. Kay, Principal Deputy Assistant Secretary for the Office of Policy, Budget and Administration. The Senior Executive Service is an elite management classification within the federal government. The SES, established under the Civil Service Reform Act of 1978, Pub. L. No. 96-330, 94 Stat. 1036-37 (1980) (codified at 5 U.S.C. Sec. 3131), rewards high-ranking government employees with a high pay scale and generous benefits. The SES also provides greater authority to agencies in managing their organizations including the ability to assign executives where they would be most effective in accomplishing the agency's mission. It is well understood and accepted throughout the Park Service that mobility is a key component of being part of the SES. Park Service employees often have to move long distances in order to ascend the career ladder. Career SES members may be reassigned to other SES positions for [*9] which they qualify in order to meet the needs of the Department and to promote the efficiency of the Park Service. Career SES members may also be detailed to another SES position. Details for more than 30 days must be submitted to the ERB for approval. Only in situations where the SES member is "acting" for another SES member is ERB approval not required for details beyond 30 days. III. SES Reassignments in the National Park Service When Manuel Lujan became Secretary of the Department of Interior in 1989, he expressed his concern that the Department's employees did not reflect the cultural and ethnic diversity of the nation as a whole. He directed the ERB to develop a diversified workforce that would be available to fill SES positions in the future and to devise ways in which to best utilize the existing SES resources of the Department. Acting upon the Secretary's direction, the ERB decided to implement a mobility policy in which individuals who had been in the same SES position for long periods of time would be moved from that position to another. The ERB determined that the goals and objectives of the Department would be better served if individuals with proven records of [*10] reliability, industry, and management ability could bring their experience and expertise to bear on new situations and problems. In late 1990, the ERB met with the Directors of the bureaus of the Department to discuss the proposed SES mobility policy. The ERB decided to implement the mobility policy on a bureau-by-bureau basis. The first units to reassign employees pursuant to this policy were the Bureau of Land Management and the Bureau of Reclamation. The ERB met with the Director of the Park Service, James M. Ridenour, on two to three occasions to discuss operation of the SES mobility policy within the Park Service. The ERB review of Park Service departmental records relating to SES employees revealed that Plaintiff who was Regional Director of the Rocky Mountain Region, Robert Baker who was Regional Director of the Southeast Region, and James Coleman who was Regional Director of the Mid-Atlantic Region, had each been in their respective positions for more than ten years. Director Ridenour concluded that the three SES employees who had been in their positions for more than ten years (Plaintiff, Baker, and Coleman) should be rotated and that Plaintiff would move to the Mid-Atlantic [*11] Region, Coleman would move to the Southeast Region, and Baker would move to the Rocky Mountain Region. The ERB approved Director Ridenour's plan to effectuate this three-way rotation. In May 1991, a Regional Directors' meeting was held in St. Louis, Missouri in which Director Ridenour and the Deputy Director of the Park Service, Herbert S. Cables, informed Plaintiff, Baker and Coleman about the proposed three-way reassignment. Upon meeting with Ridenour, Plaintiff, Baker and Coleman individually and separately strongly objected to the reassignments and gave personal reasons for remaining in their respective positions and Regions. Plaintiff was unwilling to be reassigned because she was providing financial and personal support to her husband (from whom she had lived apart for 8 years) who lived in Nebraska and was in extremely poor health; in addition, she did not wish to move because a close male friend resided in Denver. Baker was unwilling to be reassigned because his children and grandchildren resided in the Atlanta area, he had property there and he had begun several projects in the Southeast Region that he wanted to complete. Coleman was unwilling to be reassigned because his [*12] wife recently had obtained a job for the first time in 20 years and his children resided in the Philadelphia area. All three expressed great professional and personal satisfaction with their existing assignments. On May 15, 1991, Plaintiff, in response to her private conversation with the Director concerning the proposed reassignment, sent a memorandum informing him that she would possibly be retiring in 1993, but no later than January 1994. n2 On May 16, 1991, Director Ridenour, concerned that a relatively large number of senior managers would soon be retiring, issued a memorandum directing all SES employees to inform the Director of their views regarding reassignment and any retirement plans that would affect their careers as Park Service employees. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n2 Plaintiff also indicated, in an attempt to avoid imposing her moving costs on the Department, that she would commit to retire on January 1, 1993, when she was still in Denver, or be agreeable to a transfer at that time. n3 In May of 1991, 17 out of 21 SES personnel in the Park Service were eligible for retirement. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*13] After considering personal concerns given by the Regional Directors facing the three-way reassignment, Director Ridenour decided that the benefits to the Park Service of the three-way reassignment outweighed such personal concerns and that he would proceed with his original plan. On June 25, 1991, he sent a memorandum containing identical language to the three Regional Directors informing them that he was directing the three-way reassignment, that they would retain their SES status and level, that they would be removed from federal service if the reassignment was not accepted, and that the reassignment would be effective 60 days from receipt of the memorandum. Thereafter, Plaintiff was reassigned to the position of Regional Director for the Mid-Atlantic Region of the National Park Service in Philadelphia, Pennsylvania; Robert Baker was reassigned to the position of Regional Director for the Rocky Mountain Region in Denver, Colorado; and James Coleman was reassigned to the position of Regional Director for the Southeast Region in Atlanta, Georgia. At the time of the reassignment at issue in this case, Plaintiff was 56 years old and had been Regional Director of the Rocky Mountain [*14] Region for 11 years; James W. Coleman was 55 years old and had been Regional Director of the Mid-Atlantic Region for 11 years; and Robert M. Baker was 53 years old and had been Regional Director of the Southeast Region for 10 years. After the three-way reassignment was officially announced in the June 25, 1991 memorandum, Plaintiff and the Director, during a meeting at Mount Rushmore in early July 1991, discussed the possibility of her taking the position of Associate Director for Strategic Planning which would require her resignation from the Senior Executive Service. In July 1991, there was only one SES position in Denver, and that was Regional Director. On July 15, 1991, in response to the discussions between Plaintiff and Director Ridenour at Mount Rushmore, Ridenour, in an effort to accommodate Plaintiff's desire to remain in Denver, Colorado, sent a memorandum to Plaintiff asking that she consider the position of Associate Director for Strategic Planning, to be located in Denver. Director Ridenour felt that Plaintiff was an outstanding employee and that her talents in management would further the Park Service's efforts to develop a strategic planning capability. Moreover, since [*15] Plaintiff had told him that she was planning to retire in two or three years, he felt that if she took the Strategic Planning position, she could stay in Denver as she wished, earn her same SES pay, retire at that level, and perform useful and creative work for the Park Service before retiring. At Ridenour's request, Plaintiff drafted a position description and budget for the Strategic Planning office, but indicated that she would only take the position if the Director was committed to the task of moving the Service forward and if the position was at the same SES level (ES-4) and pay that she was receiving. Director Ridenour approached the ERB about establishing the Associate Director for Strategic Planning position at the SES level. Ridenour was advised that, given the limited number of authorized SES slots, the Department had no SES slots available for the Strategic Planning position and that there could be no such SES allocation in the immediate future. Director Ridenour then offered Plaintiff the Associate Director for Strategic Planning position at the GM-15 level with retained pay at her existing SES level. Director Ridenour advised Plaintiff to contact the ERB directly to discuss [*16] the possibility of allocating an SES slot to the Strategic Planning position. In a July 24, 1991 memorandum to the Director, Plaintiff indicated that she had spoken with the Director of Personnel for the Department who informed her that it was unlikely that an SES slot would become available for the Strategic Planning position. Plaintiff was opposed to accepting a non-SES position because she feared that her resignation from the SES would make her vulnerable to personnel actions, including RIFs, based on her opposition to the redrafting of the Vision Document. Unwilling to accept a downgraded position which would result in the loss of potential SES bonuses and the ability to accrue an unlimited amount of annual leave, Plaintiff ultimately rejected the Associate Director for Strategic Planning position in mid-July 1991. On July 24, 1991, Plaintiff filed an informal administrative complaint of sex and age discrimination, naming Herbert Cables as the discriminating officer. In light of the fact that Baker and Coleman had already accepted their reassignments and Plaintiff had rejected the Associate Director for Strategic Planning position, Director Ridenour on July 25, 1991, requested [*17] formal authorization to reassign Plaintiff to the Mid-Atlantic Region. n4 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n4 While Plaintiff understandably makes much of the sequence of these two events, there is nothing in the record to show that Director Ridenour knew, on July 25, 1991, that Plaintiff had filed her informal administrative complaint the previous day. He specifically denied having any knowledge of when she filed her complaint. Moreover, as shown above, the reassignment had been announced in May, 1991. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In August 1991, Deputy Director Cables, knowing that he was named as the alleged discriminating officer in Plaintiff's EEO complaint, n5 had lunch with Heather A. Huyck, who served on the Majority staff of the House Subcommittee on Parks and Insular Affairs. Cables asked Huyck, as a personal friend of Plaintiff, to contact her and recommend that she talk to Director Ridenour about obtaining an SES position. Cables also made it clear that plaintiff's counsel should not be involved in the matter. Cables stated that if Plaintiff would accept the Strategic [*18] Planning position at the GM-15 level, an SES allocation could be obtained at a later time. Huyck spoke to Plaintiff who then contacted the Director. To her humiliation and embarrassment, however, Plaintiff discovered that the Director had no knowledge of what Cables had discussed and saw no possibility that the GM-15 Strategic Planning position could, with any certainty, be later allocated to an SES status. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n5 The Court does not credit Cables' denial of this fact. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On September 5, 1991, Plaintiff filed a formal complaint of sex and age discrimination, and retaliation with the Department of Interior. IV. Park Service Officials to Whom Accommodations Were Allegedly Made A. Denis P. Galvin From 1985 to 1989, Denis P. Galvin, a member of the SES, served as the Deputy Director of the Park Service. While serving as Deputy Director, Galvin had disagreements with and was being subjected to criticism of his job performance from a politically appointed Department Assistant Secretary, Becky Norton Dunlap. It is the long-standing [*19] practice at the Department that when a new administration assumes power, a new Director of the Park Service is appointed who in turn selects his own new Deputy Director. On April 7, 1989, Galvin was informed that he would be replaced by Cables, then Regional Director of the North-Atlantic Region of the Park Service, who would become the Deputy Director under the Bush Administration. However, Cables could not move into the position of Deputy Director until another position was found for Galvin within the Park Service. Although he continued to officially hold the position of Deputy Director, Galvin was moved out of the Washington, D.C. offices for more than 30 days. Although there was testimony and some exhibits to demonstrate that Galvin was sent to the Harpers Ferry Center in West Virginia to conduct a management survey, the record is far from clear as to his precise status or duties. Galvin admitted that all supporting documents concerning his move were prepared after the fact. Galvin expressed a strong desire to remain in the Washington, D.C. area and not be reassigned elsewhere because he did not wish to cause further disruption in the lives of his wife and children who were in [*20] Washington, D.C. Galvin informed Director Ridenour that he was willing to step down from the SES and accept a GM- or GS-15 position in order to remain in Washington, D.C. During the spring of 1991, there were a number of SES jobs open in Washington, D.C. which Galvin applied for and did not obtain. On June 13, 1989, Galvin finally received a directed reassignment to the position of Regional Director for the North-Atlantic Region in Boston, Massachusetts, with a detail to the Washington, D.C. office for a period not to exceed a year to complete a number of projects. On June 27, 1989, Galvin, acting in accord with his previously stated views, refused to accept the directed reassignment to the North-Atlantic Region and repeated his willingness to accept a non-SES position in order to remain in Washington, D.C. with his family. After receiving permission from Cables, Galvin approached Gerald Duane Patten, Associate Director for Planning and Development, on June 20, 1989, to ascertain Patten's willingness to be reassigned to the North-Atlantic Region. PAGE 31 1995 U.S. Dist. LEXIS 1182, *; 66 Fair Empl. Prac. Cas. (BNA) 1804 Patten expressed his willingness and in July 1989, a three-way reassignment was executed in which Galvin did manage to obtain all that he [*21] wanted: he remained in Washington, D.C., was reassigned to the position of Associate Director for Planning and Development, and retained his SES status. Patten was reassigned to the position of Regional Director for the North Atlantic Region, and Cables was officially reassigned to the position of Deputy Director which he had been holding, unofficially, since April, 1989. B. Gerald Duane Patten As noted above, Gerald Duane Patten, a member of the SES, was reassigned to the North Atlantic Region in July, 1989. Thereafter, his fiancee, who had initially taken a job outside of the National Park Service, was able to negotiate with the Director of the Harpers Ferry Center of the Park Service and obtain a GS-12 position in the Salem, Massachusetts office of the Harpers Ferry Center. After her job in Massachusetts ended, she obtained a position with the Denver Service Center of the Park Service, and moved to Denver in May, 1991. Subsequently, Patten informed Director Ridenour that he was interested in reassignment to the western part of the country. In October of 1991, Patten was offered the Associate Director for Strategic Planning position in Denver, Colorado. In January of 1992, Patten [*22] stepped down from his SES position as Regional Director in Boston and accepted the Associate Director for Strategic Planning position at a GM-15 level with retention of his SES salary. C. Quincy Boyd Evison From September, 1985 until June, 1991, Quincy Boyd Evison, a member of the SES, was the Regional Director of the Alaska Region of the Park Service. In early 1991, Evison spoke with Director Ridenour about a reassignment out of Alaska because of difficulties in dealing with the local congressional delegation and personal concerns relating to his mother-in-law's need for specialized medical care. Evison explored several options, including the position of Associate Director for Operations in Washington, D.C. He eventually decided to accept the non-SES position of Deputy Director for the Rocky Mountain Region, at a GM-15 level with retention of his SES salary. D. Herbert S. Cables Herbert S. Cables, a member of the SES, was notified that he would be replaced as Deputy Director, as a result of a Department of Interior investigation involving contracts approved by him when he was Regional Director of the North-Atlantic Region. Cables then expressed his desire to move to the New York [*23] City area because he had aging relatives and a house located there. In August, 1993, with no SES position available in the New York City area, Cables, upon his request, was reassigned, through an Intergovernmental Personnel Assignment, to the City University of New York and retained his SES status and pay. The Intergovernmental Personnel Assignment was created as a result of Cables' own efforts to find an SES position in the New York City area. VI. Plaintiff's Resignation Plaintiff's reassignment to the Mid-Atlantic Region was effective on October 6, 1991. Although initially distressed about the reassignment, Plaintiff made up her mind to go to Philadelphia and do as high quality a professional job as she always had. During her tenure as Regional Director of the Mid-Atlantic Region, from October 6, 1991, until April 4, 1992, Plaintiff undertook a strenuous schedule to visit all park units and the offices of each member of Congress for the Region by April, 1992. When Plaintiff arrived as Regional Director of the Mid-Atlantic Region three difficult personnel situations faced her, involving Fontaine Black, Sandra Rosencrans and Bill Wade, that had not been resolved by the former [*24] Regional Director, James Coleman. Fontaine Black was the Regional Equal Employment Opportunity Officer for the Mid-Atlantic Region. With the permission and approval of Coleman while he was Regional Director of the Mid-Atlantic Region and the knowledge and acquiescence of high-level management officials in Washington, D.C., Black worked on projects that had an impact beyond her own Region. For example, she recruited minority students into the Park Service for the Mid-Atlantic Region and other regions. She also worked on the Historically Black Colleges and Universities program and the interpretation of slavery initiative program. In November of 1980, Black filed an EEO complaint alleging that failure to reclassify her position as a GM-13 was a result of race discrimination. She ultimately prevailed on this charge. In the summer of 1991, Black requested that her Service-wide activities be recognized and that her position be upgraded from a GM-13 to a GM-14 level. In September 1991, Coleman as Regional Director requested approval to reclassify Black's position and upgrade her GM level. No such approval was given. Upon arriving as Regional Director in Philadelphia, Plaintiff immediately [*25] turned her attention to the issue of reclassification of Black's position. On October 4, 1991, Plaintiff received a memorandum from Associate Director for Budget and Administration Edward Davis notifying the Mid-Atlantic Region that classification of the GM-14 level was in the Region's delegation of authority, but cautioning against using as a basis for the upgrade any duties and responsibilities assigned to the Washington Office. In a memorandum of December 16, 1991, Cables advised Plaintiff that, contrary to Davis' advice, he thought that Regional Directors, carrying out the wishes of the Director, could assign duties of national scope to members of their staffs for development and implementation. Because of the conflicting interpretations of her authority to reclassify Black's position, Plaintiff requested specific authorization from Cables to upgrade Black's position. Once again, because of the Park Service's failure to reclassify her position properly (this time to a GM-14) Black filed an EEO complaint, on January 8, 1992, naming Plaintiff as the alleged discriminating officer. n6 In a January 15, 1992 memorandum Cables responded that it was the Region's responsibility, not his, [*26] to revise the position description for a Regional employee. He also cautioned that authority to conduct any program on a Servicewide basis, as opposed to activities that encompassed more than one Region, but were not Servicewide, must be delegated by the Washington, D.C. office. The reclassification of Black's position was not settled before Plaintiff resigned as Regional Director of the Mid-Atlantic Region, although Ms. Black did ultimately successfully settle her EEO claims and received a GM-14. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n6 Ms. Black also filed discrimination complaints on February 20, 1992, and April 17, 1992. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Sandra Rosencrans was the Associate Regional Director for Administration. As a result of the death of her husband and subsequent health problems, Rosencrans was unable to perform her job functions adequately. Because Rosencrans was no longer effective in her job, Plaintiff proposed directing her reassignment with the understanding that Rosencrans would refuse the reassignment, and, thereafter be eligible for a discontinued service [*27] retirement. Rosencrans did finally retire while Plaintiff was still Regional Director of the Mid-Atlantic Region. Bill Wade was the Superintendent of Shenandoah National Park. Wade was reprimanded by Mr. Coleman prior to Plaintiff becoming Regional Director for the Mid-Atlantic Region. Plaintiff thought that it was Director Ridenour's desire that she reprimand Wade in connection with statements he had made to the press regarding air quality issues in Shenandoah National Park. However, she agreed with Wade's position, and never reprimanded him. There were no repercussions. On April 3, 1992, President George Bush was scheduled to visit Independence Park in Philadelphia, Pennsylvania. At this time Plaintiff was returning from congressional appropriations hearings in Washington, D.C. Plaintiff was informed by Park Service employees that she was not to be allowed within a set perimeter of the President, and that to ensure that this security measure was carried out, her picture was circulated at the briefing for law enforcement officials. Plaintiff was shocked and profoundly offended to learn that she was viewed as a security risk to the President of the United States and would be barred [*28] from attending an important public ceremony on Park Service property within her jurisdiction. Concluding that her position with the Park Service had become untenable, on March 27, 1992, Plaintiff faxed a memorandum to Director Ridenour retiring from her position as Regional Director of the Mid-Atlantic Region. VII. Park Service Bonus and Step Increase The Department's evaluation and bonus system is designed "to provide recognition and reward for senior executives who demonstrate high levels of achievement." Department of Interior Departmental Manual at Chapter 920, Sec. 6.1 The rating period runs from July 1 through June 30 of each year. Recommendations regarding an SES employee's performance rating and bonus are made by the Director. Recommendations are then reviewed by the PRB. The PRB's recommendations are forwarded to the Assistant Secretary for Fish, Wildlife and Parks who determines the final rating. The Assistant Secretary reviews the recommendations of the PRB and forwards his recommendations to the ERB. The ERB approves all SES bonuses, awards and level increases for the entire Department. On August 8, 1991, Director Ridenour recommended Plaintiff for a bonus of $ 5,025 [*29] and an SES level 4 performance rating n7 to the PRB. Plaintiff had received numerous bonuses and grade increases when eligible in the past. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n7 A level 4 rating which falls under a category labeled "Exceeds Fully Successful," means that the employee's performance as manager exceeded performance expectations. See Individual Senior Executive Performance Appraisal Career Appointee Career Appointee, Lauretta Lorraine Mintzmyer, Defendants' Exhibit 11. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On August 14, 1991, the Fish, Wildlife and Parks PRB convened to review the recommendations from Director Ridenour for the 1990-1991 rating year. Although accepting Director Ridenour's recommendation that Plaintiff receive a level 4 performance rating, the PRB refused to accept his recommendation of a bonus for Plaintiff. The Assistant Secretary for Fish, Wildlife and Parks did not alter the PRB's recommendation with respect to Plaintiff's performance rating and bonus. The ERB then adopted the Assistant Secretary's position regarding Plaintiff on November 22, 1991, and [*30] she did not receive the bonus originally recommended by Director Ridenour. Plaintiff was the only female Regional Director and the only Regional Director denied a bonus. There were only two female SES Park Service employees. One, the Plaintiff, was recommended for a bonus and was denied it. The other, a Ms. Gilliard-Payne, was recommended for a step increase and was denied it. Both females had filed an EEO complaint against the Department. Both women ultimately left the Agency. CONCLUSIONS OF LAW Plaintiff is bringing claims under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, n8 and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. Sec. 621 et seq. n9 Preliminarily, the Court will set forth the applicable general principles, by now well established under existing Supreme Court case law, pertaining to each party's shifting burdens of proof, production, and persuasion. Next, the Court will apply those principles to the specific claims asserted by the Plaintiff. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n8 Title VII provides that:
42 U.S.C. Sec. 2000e-2(a)(1) and (2). [*31] n9 The ADEA provides that:
29 U.S.C. Sec. 623(a)(1) and (2). - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Analytically, those claims break down in the following fashion. n10 First, Plaintiff argues that the agency's initial reassignment decision violated the ADEA. Second, she argues that after making that initial reassignment decision in violation of the ADEA, the agency then violated Title VII by failing to accommodate her personal needs as the agency had accommodated the personal needs of similarly situated male employees. Third, the Plaintiff argues that the agency thereafter retaliated against her in a number [*32] of ways for filing both an informal and formal discrimination complaint: it revealed her confidential EEO complaint to an influential House of Representatives committee staff member, it tried to pressure her to settle her claim without involving her lawyer, it denied her a bonus and step increase, and it ultimately constructively discharged her. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n10 The necessity to focus sharply on the actual claims in issue is particularly important, and difficult, in this case. This is a relatively old case, filed on October 20, 1992. It was not tried until two years later, in November of 1994. The Complaint was drawn in a very broad fashion and relied heavily on the political controversy surrounding preparation of the Vision Document. By the time trial actually began, the substantive issues relating to the Vision Document had been removed from this forum and placed before the Merit Systems Protection Board. Moreover, some of the very broad allegations of gender discrimination, such as those contained in Count Four, were not litigated. The Court recognizes that the passage of time, the information learned in discovery, and the financial and logistical constraints of litigation often change the contours. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*33] The Governing Legal Principles Initially, it should be noted that in this Circuit the analytical framework used in cases of race and gender discrimination under Title VII has been applied to suits brought under the ADEA. Arnold v. United States Postal Service, 274 U.S. App. D.C. 305, 863 F.2d 994, 996 (D.C. Cir. 1988), cert. denied, 493 U.S. 846, 107 L. Ed. 2d 99, 110 S. Ct. 140 (1989); Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342-43 (D.C. Cir. 1983), cert. denied, 464 U.S. 994, 78 L. Ed. 2d 683, 104 S. Ct. 488 (1983); Cuddy v. Carmen, 224 U.S. App. D.C. 287, 694 F.2d 853, 856-57 (D.C. Cir. 1982). In proving discrimination claims, Plaintiffs may rely on two different theories: disparate treatment and disparate impact. The former occurs when an employer treats some people less favorably than others because of their race, color, religion, sex, national origin or age. Proof of discriminatory [*34] motive is critical and may be proved by demonstrating specific instances of discrimination against an individual or a pattern or practice of discrimination against a group of individuals within the protected class. Disparate impact claims, on the other hand, involve employment practices that are facially neutral in their treatment of different protected groups, but that in fact more harshly affect one group than another and which cannot be justified on grounds of business necessity. Proof of discriminatory motive is not required under a disparate impact theory. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). It should be noted that the Supreme Court has not yet decided whether a disparate impact theory is available under the ADEA. Hazen Paper Co. v. Biggins, 123 L. Ed. 2d 338, 113 S. Ct. 1701, 1706 (1993). In disparate treatment cases, the Supreme Court has clearly set forth the procedural path which the fact-finder (judge or jury) must walk in order to resolve "the elusive factual question of intentional [*35] discrimination," Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n.8, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Most recently, in St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 113 S. Ct. 2742, 2746-2750 (1993), the Court re-affirmed and clarified its seminal opinions in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Burdine, supra, establishing the allocation of the burden of production and the order for the presentation of proof in Title VII discriminatory-treatment cases. The plaintiff must first establish, by a preponderance of the evidence, a 'prima facie' case of racial discrimination, Burdine, supra, at 252-3. "Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee," Id. at 254. The burden [*36] then shifts to the employer to produce evidence that the employment decision in question was taken "for a legitimate nondiscriminatory reason," Id. If the employer articulates such a reason and carries its burden of production, the presumption of unlawful discrimination "raised by the prima facie case is rebutted" and "drops from the case." Id. The plaintiff then has the "full and fair opportunity to demonstrate" that the employer's stated reason for its employment decision was merely pretextual and that gender (or race or age, etc.) was the determining factor in the decision. The Supreme Court reiterated in St. Mary's Honor Center, that even though the McDonnell Douglas presumption shifted the burden of production to the defendant, "the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," 113 S. Ct. at 2747. In other words, once the defendant has satisfied its burden of production and merely proffers a nondiscriminatory reason for the adverse employment decision, "the trier of fact proceeds to decide the ultimate question: [*37] whether plaintiff has proven 'that the defendant intentionally discriminated against [her]' because of [her sex],...The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons, will permit the trier of fact to infer the ultimate fact of intentional discrimination," St. Mary's Honor Center, 113 S. Ct. at 2749 (emphasis in original). However, mere rejection of the employer's proffered nondiscriminatory reasons for its employment decision does not entitle an employee to judgment as a matter of law, since that employee always retains the ultimate burden of proving intentional discrimination, 113 S. Ct. at 2747. The Reassignment of Plaintiff to the Mid-Atlantic Region Plaintiff's argument that the agency's reassignment of her to be Regional Director of the Mid-Atlantic Region violated the ADEA is a complex one that tries to weave together a number of different [*38] factual strands. Unfortunately, the Court cannot conclude that these strands create a fabric of prohibited age discrimination. Plaintiff first focuses on the memo sent by Director Ridenour on May 16, 1991, to all SES employees directing them to inform him of their retirement plans, if any, and their views on reassignment. She argues that the sending of the memo, in and of itself, n11 constituted impermissible differential treatment of employees based on their age since all SES members are over the age of 40. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n11 Plaintiff vigorously presented this position at oral argument on the government's motion for a directed verdict after the close of her case. While closing argument at the conclusion of the trial was abbreviated because the length of the trial had impacted on all counsel's schedules, there was never any suggestion that Plaintiff was abandoning or modifying this position. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - From this premise she argues, further, that but for the consideration of the information received in response to this memo, information which [*39] she contends was impermissibly obtained in the first place, the three-way reassignment resulting in her move to Philadelphia would never have happened and she would not have been placed in a position by her employer which was intolerable. n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n12 See Plaintiff's Requested Conclusions of Law, pp. 24-25. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Finally, she questions the ERB's SES mobility policy in favor of moving SES employees out of positions they had held for more than 10 years into other SES positions. She questions whether such a hard-and-fast policy actually existed, whether it was applied across-the-board, whether it had ever been articulated in any official or written fashion, and whether it was the real basis on which the decision to make the three-way reassignment was made. n13 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n13 In her Requested Conclusions of Law and in her Complaint, Plaintiff asserted a theory of disparate impact as well as disparate treatment. The Court is not sure whether this theory is still being put forward, since there was virtually no concrete evidence presented to support it. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*40] The requirements for establishing a prima facie case of age discrimination were recently set forth in Ware v. Howard University, 816 F. Supp. 737, 750 (D.D.C. 1993): "(1) that plaintiff was a member of the statutorily protected age group (between the ages of forty and seventy); (2) the plaintiff was qualified for the position in question, [i.e., in this case, qualified to be retained in the position she desired as Regional Director of the Rocky Mountain Region]; (3) the plaintiff was not hired or promoted to that position, [i.e., in this case, was not retained in the position she desired as Regional Director of the Rocky Mountain Region]; (4) a person not of the protected age group was selected in lieu of plaintiff, [i.e., in this case, replaced plaintiff in the position she desired to stay in as Regional Director of the Rocky Mountain Region]." Applying these criteria to the facts of this case, it is clear that Plaintiff has not made out a prima facie case of age discrimination. She is, of course, a member of the statutorily protected age group since she was 56 years old at the time of the reassignment, well over the age of 40. In addition, she was [*41] abundantly qualified to remain in her position as Regional Director of the Rocky Mountain Region and was a highly valued senior manager with the National Park Service. However, Plaintiff can not satisfy the fourth criteria for establishing a prima facie case: she was not replaced by an individual who was not a member of the protected age group under the statute nor even by a person who was substantially younger n14 than she even though that person might have been a member of the statutorily protected age group. Plaintiff was 56 years of age. Her replacement, Robert Baker, was 53 years of age. Not only was Mr. Baker himself a member of the statutorily protected age group but he was a mere three years younger than the Plaintiff. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n14 See Ware, supra, 816 F. Supp. at 750, where there was a 17 year difference between the plaintiff and the person who was promoted to the desired position, and Maxfield v. Sinclair, 766 F.2d 788, 792-93 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986), where the plaintiff was replaced by another employee who was twenty years younger. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*42] Thus, Plaintiff can not establish her prima facie case of age discrimination under the ADEA or that age was the motivating factor in her reassignment. n15 But even if she could, the government has proffered legitimate, nondiscriminatory reasons for the reassignment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n15 The government argues that Plaintiff's prima facie case fails for another reason, namely her failure to establish that reassignment to head the Mid-Atlantic Region constituted the necessary adverse personnel action which is contemplated by the statute. There is no question that all Regional Directors had the same SES level, earned the same pay, and had the same official job duties and requirements. Plaintiff believed that transfer to the Mid-Atlantic region constituted an adverse action because of the smaller size, diminished prestige, and smaller number of Park Service "crown jewels" in the Philadelphia region. Moreover, in light of Plaintiff's personal situation and preferences, there was no question that the forced reassignment was "adverse" to her desires. Consequently, the Court is not prepared to rule as a matter of law, given the factual context of this case, that the reassignment did not constitute an adverse employment action. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*43] The SES is, as discussed above, a prestigious, elite management group within each federal agency. While its members have very extensive management responsibilities, they also have certain specific employment benefits, not the least of which is the substantial prestige and public recognition which is accorded them. Mobility is a key component of SES membership, where agencies must have the flexibility to move their most gifted and experienced managers to the posts where they are needed. That is particularly true in the National Park Service, given its mission as steward of our national parks which are usually located in remote areas throughout the country. Each of the SES employees who testified at trial, for both Plaintiff and Defendant, recounted the many, many different moves they had made from one assignment to another as they moved up the career ladder, moved into the SES, and then worked as SES managers. In particular, in light of Secretary Lujan's desire to maximize his managerial flexibility so as to allow him to develop a more diversified workforce in the Department, and the fact that in May of 1991, 17 of 21 SES Park Service employees were eligible for retirement, the actions [*44] of the ERB in actively implementing a mobility policy were appropriate. In short, the government has satisfied any burden it might have to produce legitimate nondiscriminatory reasons for the mobility policy which led to Plaintiff's reassignment to the Mid-Atlantic region. n16 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n16 The ERB's emphasis on mobility did not rest on a flat per se ten-year rule, but rather focused on which employees had been in top management positions for a long period of time. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Plaintiff now has the burden of demonstrating that these reasons were merely pretextual. She argues that there were no written regulations, criteria, or studies either describing or justifying the 10-year mobility policy. Those statements are, indeed, accurate, but do not in and of themselves prove that her reassignment was not based on that policy. There is simply not a shred of evidence in the record to show that she was individually singled out for this reassignment or that the motivating factor behind her reassignment was age. She does contend that the mere [*45] sending of the May memo by Director Ridenour to SES employees, all of whom were over the age of 40, requesting information about their future retirement and reassignment plans, and failing to request such information of non-SES employees who were over the age of 40, constituted age discrimination under the ADEA. There are at least two reasons why this analysis is flawed. First, she is comparing apples and oranges: SES and non-SES employees are two very different pools of employees and, from a management point of view, constitute very different types of resources for the staffing and efficient operation of the agency. Moreover, SES members are covered by different personnel regulations and policies than non-SES members. The two groups are not comparable. Second, the recent opinion of the Supreme Court in Hazen, 113 S. Ct. at 1705, points out that "there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age." The Court went on to explain that there is no discrimination under the statute "when the employer's decision is wholly motivated by factors other than age...even [*46] if the motivating factor is correlated with age, as pension status typically is," 113 S. Ct. at 1706. In Hazen, the Court held that an employment decision based on an employee's years of service, correlated as it obviously was with age, was not age-based in violation of the ADEA. n17 Here too, Director Ridenour's memo asking for retirement and reassignment information, as well as the ERB's mobility policy, were based on SES membership, not on age per se. To paraphrase the Supreme Court's reasoning in Hazen, "an employee's age is analytically distinct from [her membership in the SES]." Id. Consequently, Hazen compels rejection of Plaintiff's arguments. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n17 The Court reached this conclusion despite a compelling set of facts: Biggins was fired when he was 62 years old, a few weeks short of the years of service he needed for the vesting of his pension. The employer fired Biggins to avoid vesting of his pension, and his vesting turned on years of service rather than age. The Court concluded that "because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily 'age-based'", 113 S. Ct. at 1707. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*47] III. The Refusal to Accommodate Plaintiff's Personal Needs by Retaining Her as Regional Director in Denver Plaintiff argues that the agency violated Title VII of the Civil Rights Act because it failed to accommodate her personal needs to remain in her SES position in Denver whereas it did make such accommodations for similarly situated male SES employees in the National Park Service. Essentially, Plaintiff asks that her situation be compared to those of other individual male SES employees, and that the Court conclude that she has made out a prima facie case of disparate treatment. Assuming arguendo that there is validity to Plaintiff's theory of "failure to accommodate an employee's personal desires," n18 the Court concludes that Plaintiff has failed to demonstrate that all the male SES employees she has identified as being similarly situated to her were so situated. Consequently, Plaintiff has failed to make out a prima facie case of sex discrimination based on disparate treatment. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n18 Plaintiff cites no cases which support such a theory. Because Plaintiff has failed to prove a factual basis for her theory, it is not necessary to address the merits of the issue, as a matter of law. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*48] Plaintiff contends that the following males in the SES were similarly situated to her, and that accommodations were made by the National Park Service to their personal/family needs: Gerald Duane Patten, Boyd Evison, Herbert Cables, and Denis Galvin. n19 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n19 Significantly, Plaintiff does not contend that any accommodation was made by the agency to the personal needs of the other two SES employees involved in her three-way reassignment. All three were members of the SES, they were all at the same SES level, they were all Regional Directors, they had all spent more than ten years in their respective situations, and they all protested their reassignments on personal/family grounds. In short, all were similarly situated. No accommodations were made by the agency for any of the three employees and all were forced to take their new assignments. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The simple fact is that as to three of these men their individual situations differed significantly from the Plaintiff's and, therefore, they were not similarly situated to her. [*49] It is noteworthy that from the moment of the announcement of the three-way reassignment, Plaintiff took the position that she would not give up her SES status and consequently would not consider any position in the Park Service that did not hold that status. Gerald Duane Patten was an SES member who was Regional Director in Boston for the North Atlantic Region. In May of 1991, because of his fiancee's move to Denver, he informed Ridenour that he would like to be reassigned to the western part of the country. In October, 1991 he was offered a position in Denver as Associate Director for Strategic Planning. Although he retained his SES salary level, he willingly gave up his SES status in order to accommodate his personal needs. Ironically, this was the same position which Director Ridenour had earlier offered Plaintiff and she rejected. n20 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n20 Plaintiff testified that she believed Patten was accommodated because a job was created for his fiancee when he was working in Washington, D.C., that she was transferred to the Salem, Massachusetts office of the Harpers Ferry Center after he was reassigned to Boston, and that he was allowed to follow her when she was transferred to the Denver Service Center. Even if there were credible evidence to support all these facts, and there was not, the fact remains that Patten ultimately relinquished his prized SES status to obtain the position he wanted in the Denver office. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*50] Quincy Boyd Evison was an SES member who was Regional Director in Anchorage for the Alaska Region. In early 1991, because of both family and political problems, he requested reassignment out of Alaska. In August, 1991, Evison accepted the position of Deputy Regional Director for the Rocky Mountain Region. Although he retained his SES salary level, he willingly gave up his SES status in order to accommodate his personal/family needs. Herb Cables was an SES member who was Deputy Director of the Park Service. He was replaced as Deputy Director. He desired to move to the New York area for family reasons, but no SES position was available. Cables was then reassigned, through an Intergovernmental Personnel Assignment which he arranged, to the City University of New York. He retained his SES status and salary level. There was no evidence in the record that Plaintiff ever attempted, in an analogous manner, to even investigate, no less try to arrange for, such an intergovernmental personnel assignment to an academic institution in the Denver area or the mid-west. n21 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n21 While there were vague suggestions in Plaintiff's testimony and counsel's arguments that there was something suspicious or improper about Cables' IPA, and that it was a "boondoggle" involving little work, there was simply no hard evidence in the record that would support such a conclusion. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*51] Denis Galvin was an SES member who was Deputy Director of the Park Service. In April of 1989, he learned that he would be replaced by Herb Cables, and therefore he had to find a new position. By virtue of a series of skillful bureaucratic manipulations, n22 Galvin did ultimately avoid a directed reassignment to the position of Regional Director of the North-Atlantic Region in Boston, and in July, 1989, obtained the SES position of Associate Director for Planning and Development in Washington, D.C. Thus, despite his repeated protestations that he would willingly give up his valued SES status if he could remain with his family in the Washington, D.C. area, he did in fact receive the "accommodation" to his family personal needs that Plaintiff requested. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n22 The record is far from clear as what actions were taken to accommodate and/or protect Galvin during the period from April, 1989 when he learned that he would be replaced as Deputy Director to July, 1989, when he obtained the position of Associate Director for Planning and Development. There is no question that various "official" NPS documents were created after-the-fact to validate his status, and there is no question that he was given these three months to handle an easy assignment that took him away from the direct scrutiny of the political appointee whose displeasure he had incurred. In short, he was given both "protective cover" and a reasonable period of time to locate another high-level position. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*52] However, of the four individuals Plaintiff sought to present for comparison as having been so accommodated when she was not, she has proven her case as to only one, Denis Galvin. Moreover, even as to Galvin, whose case is quite similar to hers, the fact of the matter is that (1) he was seeking SES jobs in the Washington, D.C. area where there were far more such positions available, n23 whereas the Denver area, where Plaintiff wished to stay, had only one such position, namely the one she held; and (2) he stated from the beginning that he would willingly give up his SES status in order to remain in Washington, D.C. and would leave the Park Service rather than be transferred out of Washington, D.C. The Court simply cannot conclude that, on the basis of this one comparison, Plaintiff has proved by a preponderance of the evidence that Defendants discriminated against her on the basis of sex by failing to accommodate her personal family needs. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n23 The testimony was that there were 9 SES positions in the D.C. headquarters. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*53] Retaliation Claims Plaintiff asserts three claims of retaliation against the National Park Service: that an agency official revealed her confidential EEO complaint to a friend of Plaintiff's and, through that friend tried to pressure Plaintiff into settling her discrimination claim without involving her lawyer; that the agency denied her a bonus and step increase to which she was entitled and for which she had been recommended by Director Ridenour; and that upon moving to Philadelphia, Plaintiff's work situation was made so intolerable by the agency that she was forced to resign in what was a constructive discharge. n24 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n24 In her Complaint, Plaintiff also alleged retaliation based on false statements made to the press by the agency about her EEO complaint in violation of applicable confidentiality regulations. Plaintiff neither introduced newspaper articles in which these statements were printed nor presented witnesses to whom the statements had been made. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Title VII and the ADEA prohibit retaliation against [*54] any employee for filing charges of discrimination whether those charges be informal or formal. In this case, Plaintiff filed both. See 42 U.S.C. Sec. 2000e-3(a); 29 U.S.C. Sec. 623 (d). Our Court of Appeals has held that the procedural framework and burden of proof allocations set out in McDonnell Douglas and its progeny apply to claims of retaliation. Passer v. American Chemical Society, 290 U.S. App. D.C. 156, 935 F.2d 322, 330 (D.C. Cir. 1991); Barnes v. Small, 268 U.S. App. D.C. 265, 840 F.2d 972, 976 (D.C. Cir. 1988.). The elements of a prima facie case of employment discrimination based on retaliation are that: (1) plaintiff engaged in activity protected by Title VII and the ADEA; (2) the agency thereafter took an employment action adverse to her; and (3) there was a causal connection between the protected activity and the adverse employment action. Barnes v. Small, supra; Garrett v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992). Plaintiff [*55] filed her informal administrative claim of discrimination on July 24, 1991, and her formal complaint on September 5, 1991. There is no dispute that the filing of such complaints constitutes participation in protected activity under both Title VII and the ADEA. A. The luncheon meeting between Herb Cables and Heather A. Huyck As detailed earlier, the Deputy Director of the National Park Service lunched in August of 1991 with Heather A. Huyck who he knew to be a close personal friend of the Plaintiff's. Ms. Huyck had previously worked at the National Park Service and at the time of the August, 1991 meeting with Cables was a staff member working for the Majority members of the House Subcommittee on Parks and Insular Affairs. This Subcommittee was responsible for overseeing the activities of the National Park Service. Cables discussed the informal discrimination complaint filed by Plaintiff, clearly violating the applicable confidentiality requirements. He also proposed a remedial course of action for Plaintiff to take, making it clear that such action should not involve or be made known to her attorney (who was well known to the Department from previous consulting and training he [*56] had done). The conversation with Ms. Huyck was clearly improper. Defendants do not seriously dispute that. However, assuming there was a causal connection between that conversation and the filing of the informal discrimination complaint shortly before it took place, no adverse employment action was taken as a result of it. The decision to implement the three-way reassignment had been memorialized in writing on June 25, 1991, although it had been made even earlier in May of that year. Director Ridenour had made his request for formal authorization to reassign the Plaintiff on July 25, 1991. Plaintiff herself made the decision to reject the non-SES position of Associate Director for Strategic Planning in mid-July prior to the luncheon. While Plaintiff was certainly professionally embarrassed when she followed Cables' suggestion to Huyck, and contacted Director Ridenour who had no knowledge of what she was talking about, there is simply no evidence that, as a result of that conversation, Plaintiff suffered any adverse employment action. Consequently, Plaintiff has failed to establish a prima facie case on this retaliation claim. B. Denial of bonus and step increase n25 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n25 Plaintiff was never recommended for a step increase. It is very unclear whether she is arguing that Director Ridenour's failure to recommend her and/or the failure of the PRB and ERB to give it to her violates the law. If Plaintiff is arguing the former, there is no evidence that Director Ridenour discriminated against her in not recommending her for a step increase, while recommending her for a bonus. If Plaintiff is arguing the latter, there is no evidence that the ERB would ever approve a step increase without it having been recommended by the Park Service Director. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*57] Plaintiff was denied her bonus (for $ 5,025) and an SES step increase for the 1990-1991 rating year, despite having been recommended for a bonus and given a level 4 performance appraisal by her immediate supervisor, the Director of the Park Service. Significantly, he made this recommendation on August 8, 1991, when he was not yet aware of Plaintiff having filed her informal complaint on July 24, 1991. Plaintiff had received numerous bonuses during her long career with the National Park Service, and had never been denied one recommended by a superior. Her evaluations as a Regional Director were always excellent. She was by all accounts an outstanding and devoted Park Service employee who, during her rise through the ranks from clerk-typist to Regional Director, had developed into a first-class highly respected manager of one of the largest and most prestigious Regions in the Park Service. At least one member of the ERB, Ed Kay, indicated in a conversation with Director Ridenour that he was aware that Plaintiff had filed her discrimination complaint. n26 That complaint was filed on July 24, and on August 14, the Fish, wildlife and Parks PRB rejected the Director's recommendation of [*58] a bonus for Plaintiff, although it accepted his recommendation for an SES Level 4 performance rating. Thereafter, the ERB followed the PRB's rejection of the Director's recommendation of a bonus for Plaintiff. n27 Plaintiff was the only Regional Director denied a bonus; she was the only female Regional Director. Moreover, both female SES members (one of whom was the Plaintiff) who had filed discrimination complaints and had been recommended for a bonus or step increase, were denied such a bonus or step increase by the ERB. n28 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n26 Although Director Ridenour denied in his testimony that he had told this fact to Kay, he indicated he saw nothing unusual or inappropriate in Kay asking about Plaintiff's filing of an EEO complaint. Moreover, he was impeached with a sworn statement he gave to an EEO investigator that he did tell Kay that Plaintiff had filed a complaint. Upon seeing the statement, Director Ridenour's memory of the incidents was fully refreshed. n27 Kay testified that recommendations by bureau chiefs were very rarely changed and that approximately 95% of them were approved. n28 Plaintiff testified, without contradiction, that in 1992 every female SES employee had filed a discrimination claim against the agency, and had quit. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*59] Based on these facts, the Court concludes that Plaintiff has easily carried her burden of proof and established a prima facie case that she was denied her bonus in retaliation for filing a discrimination claim against the agency. The government offers no legitimate nondiscriminatory reason to explain the agency's actions other than a formalistic denial that, neither the PRB, nor the ERB considered gender, age, nor the fact that Plaintiff had filed a discrimination complaint. n29 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n29 The government called Joseph Doddridge, who was Chair of the PRB during the 1990-1991 rating year. He testified that he could not remember why the Plaintiff's bonus was denied, and that if there were any notes relating to the decision they had been destroyed. He was an extremely evasive and hostile witness who refused to give a straight answer to most questions asked of him. His testimony was not credible. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Consequently, the Court concludes that, having considered all the evidence presented by the Plaintiff as well as having rejected the [*60] pro forma denials of the agency, the Plaintiff has proven, by a preponderance of the evidence, that the failure to award a bonus to Plaintiff for the 1990-1991 rating year was retaliatory. n30 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n30 See the Court's statement in St. Mary's Honor Center, supra, 113 S. Ct. at 2749: "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional [retaliation]." - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - C. Plaintiff's resignation and claim of constructive discharge Plaintiff contends that her voluntary resignation of March 27, 1992, constituted a constructive discharge by the agency. She argues that, in retaliation for her having filed complaints of age and sex discrimination, the agency took a number of different actions which, viewed cumulatively and in context, made her position as Regional Director, absolutely untenable and, in effect, forced her [*61] to tender her resignation. In order to prove a constructive discharge, an employee must establish that the "'employer deliberately made working conditions intolerable and drove the employee into an 'involuntary quit.'", Bishopp v. District of Columbia, 252 U.S. App. D.C. 156, 788 F.2d 781, 790 (D.C. Cir. 1986) quoting with approval, Clark v. Marsh, 214 U.S. App. D.C. 350, 665 F.2d 1168, 1173 (D.C. Cir. 1981) (citations omitted). Moreover, the standard is whether the employer creates or tolerates "retaliatory working conditions that would drive a reasonable person to resign," Katradis v. Dav-El of Washington, 270 U.S. App. D.C. 23, 846 F.2d 1482, 1485 (D.C. Cir. 1988) quoting with approval Hopkins v. Price Waterhouse, 263 U.S. App. D.C. 321, 825 F.2d 458, 472 (D.C. Cir. 1987). Most recently, the Court of Appeals has ruled, in Dashnaw v. Pena, 304 U.S. App. D.C. 247, 12 F.3d 1112, 1115 (D.C. Cir. 1994) that the existence of aggravating factors must be proven [*62] in order to justify a finding of constructive discharge. To prove her claim of constructive discharge, n31 Plaintiff cites the difficult personnel situations she faced with Fontaine Black, Sandra Rosencrans and Bill Wade, as well as the insulting treatment she received from security officials responsible for the safety of President Bush during an April visit to Independence Park. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n31 It must be noted that there is not a shred of direct evidence in the record suggesting that the National Park Service wanted her, or either of the other two regional directors moved in the three-way reassignment, to resign, retire, or leave the agency. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - There is no question that the personnel situations were thorny ones and do not present a model of high-level governmental decision-making. Indeed, it might even be said that the Fontaine Black case, in particular, was a model of bureaucratic bungling. But several things must be kept in mind. All these problems preceded the Plaintiff's arrival in Philadelphia. Director Ridenour was well [*63] aware of their existence and considered that Plaintiff's skills were particularly suited for dealing with them successfully. While it might well be argued that her predecessor was remiss in not getting them resolved, it is clear from the record that these were long-standing personnel issues which were not created by Plaintiff's superiors in the National Park Service upon her taking over as Regional Director of the Mid-Atlantic Region. More significantly, these were the kind of lingering, complex personnel problems that routinely face a high-level, SES, career manager who had been successfully negotiating the agency bureaucracy for 33 years. These are simply not the incidents of which a constructive discharge is made. n32 Taken cumulatively and in context, they did not create "intolerable" working conditions that would "drive a reasonable person to resign." - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n32 For example, Plaintiff made no charges that any programs or initiatives she began in her new assignment were thwarted, or that any of her traditional management prerogatives were taken from her, or that her relationships with other high-level managers or Congressional personnel were undermined, so that she quite literally would not have been able to perform core functions as a Regional Director. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - [*64] The incident involving security for President Bush was of an entirely different nature. It was offensive and deeply insulting to a loyal American who had spent her life in service to her government. It was unfathomable to the Court. Moreover, the government offered very little convincing evidence in explanation, other than to put Plaintiff to her proof and question whether it even happened. n33 - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -n33 Charles P. Clapper, Jr. succeeded Plaintiff as Acting Regional Director, after she submitted her resignation. He testified that he was not aware that Plaintiff had been told that she could not attend the Independence Park ceremonies with the President and that he was satisfied that there had never been any direct orders to keep her out of the secure areas. However, he could not recall whether her picture had been circulated by law enforcement people, and indicated it could have been. He indicated that he talked with the law enforcement people and was satisfied that she would not pose a threat to the President. The Court found his testimony very vague and unspecific on crucial points. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*65] That one incident, however, is the only one that constitutes the kind of "aggravating factor" which our Circuit requires to show constructive discharge. While the record is less than clear as to the exact timing, it was at most less than a week from the occurrence of this incident that Plaintiff faxed her resignation to the National Park Service Director. Egregious and bizarre as this one incident was, it cannot be said that a reasonable high-level manager with 33 years of oft-commended experience with the National Park Service would be driven to resign from her position because of it. Consequently, the Court concludes that Plaintiff has not established that she was constructively discharged by the National Park Service. n34 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n34 This Court is well aware from both its judicial experience and its earlier experience in private practice representing plaintiffs in employment discrimination cases how stressful, demoralizing, and isolating, it can be to litigate an employment discrimination case. It is woefully easy, in even the most meritorious case, to lose perspective and draw inaccurate conclusions as events transpire over time. Sometimes people just get worn out. That is particularly true when a plaintiff stands alone or almost alone as the showcase "woman" or "African-American" or "Native-American", etc. While judges can recognize and acknowledge different painful experiences which litigants undergo, such experiences are often not accorded legal significance by our statutes or jurisprudence. This Court can only speculate as to what impelled Ms. Mintzmyer, after so many years of being the "only" woman to rise to higher and higher levels within the Park Service hierarchy, to finally tender her resignation. But speculation is not the basis of judicial opinions, and on this cold, and somewhat barren record, this Court does not perceive the "intolerable" working conditions which, under the case law, amount to constructive discharge. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -[*66] Conclusion For the reasons stated above judgment is granted in favor of the Defendant as to Count I, II, III, IV, V, VI, and VIII, and in favor of Plaintiff as to Count VII. An Order consistent with the foregoing follows. Jan. 12, 1995 Gladys Kessler U.S. District Judge
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