Cyr v. Perry

• Decision Date: 03 February 2004
• Docket Number: No. CIV.A. 03-913-A.,CIV.A. 03-913-A.
• Citation: 301 F.Supp.2d 527
• Parties: Simone E. CYR, Plaintiff, v. Stephen A. PERRY, Administrator U.S. General Services Admin., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

301 F.Supp.2d 527

Simone E. CYR, Plaintiff, v. Stephen A. PERRY, Administrator U.S. General Services Admin., Defendant.

No. CIV.A. 03-913-A.

United States District Court, E.D. Virginia, Alexandria Division.

February 3, 2004.

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William Gresby Hughes, III, Judith Lynne Wheat, Shaw Bransford Veilleux & Roth PC, Washington, DC, for Plaintiff.

Arthur Peabody, Jr., United States Attorney's Office, Alexandria, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue at the threshold in this Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., case are the following questions:

(i) whether Congress has waived sovereign immunity for retaliation claims under the ADEA;

(ii) whether a plaintiff, believing at the time of her Equal Employment Opportunity ("EEO") complaint that a single law prohibited all forms of employment discrimination, including age discrimination, may rely on Title VII, 42 U.S.C. § 2000e et seq., to pursue a claim of retaliation in response to a charge of age discrimination;

(iii) whether a plaintiff may recover compensatory damages in an action alleging discrimination and retaliation under the ADEA; and

(iv) whether a plaintiff has a right to a jury trial in an action alleging discrimination and retaliation under the ADEA.

I.¹

Plaintiff Simone Cyr, a fifty-six year old long time federal employee (27 years), has served as a Contract Specialist for the General Services Administration ("GSA") in the Federal Systems Integration and Management Center in Alexandria, Virginia since May 1991.

On June 14, 2000, plaintiff responded to a vacancy announcement ("Vacancy 1") by submitting an application for a GSA Contract Specialist position. After reviewing applications for the vacancy, defendant's Human Resources Division ("HRD") determined that plaintiff and two other applicants met the minimum educational and training requirements for the vacancies and were the best qualified applicants. Accordingly, when the applications were forwarded to Timothy McCurdy, the Selecting Official, McCurdy was aware that HRD had concluded that plaintiff was among the best qualified applicants.

Months later, when she had not yet heard anything about the status of her application, plaintiff, in October 2000, asked Mary Whitley, a co-worker and upper level manager, about her application during a golf outing. When Whitley told her that the agency had not yet selected among the applicants, plaintiff expressed concern that the agency might waive the minimum required educational qualifications for the position so that Stacey Lowenberg, a thirty-six year old GSA employee, could be selected instead of plaintiff, and that if that occurred, plaintiff would file an EEO complaint. Plaintiff alleges that McCurdy learned from Whitley or another employee that plaintiff intended to file an EEO complaint in the event this occurred.

Plaintiff's concerns, it appears, were well-founded. McCurdy submitted a written request for a waiver of the minimum educational qualifications for Lowenberg on January 16, 2001. And, when this request was granted on January 18, 2001, McCurdy selected Lowenberg for one of the vacancies. Plaintiff was notified that she was not selected on January 24, 2001. Shortly thereafter, plaintiff requested a meeting with selecting officials to discuss the reasons for her non-selection and a meeting for this purpose was scheduled for January 29, 2001. Forty-five minutes prior to the scheduled January 29 meeting, plaintiff received a hand-delivered notice from Stephen Viar, Director of Acquisitions at the GSA, of a five-day suspension effective January 31, 2001. The scheduled meeting progressed as planned and plaintiff was informed that she was not selected for the vacancy, not because of her age, but instead because her supervisors believed that she did not get along well with peers, clients, contractors, and others.

Shortly after the meeting, Plaintiff contacted an EEO counselor in the GSA's Office of Civil Rights to file an informal complaint alleging (i) discrimination on the basis of age in violation of the ADEA when she was not selected for the vacancy and (ii) retaliation in violation of Title VII when she was suspended. Plaintiff then filed a formal EEO complaint on July 27, 2001, alleging age discrimination and retaliation for the same reasons as alleged in her informal complaint. Moreover, she added a claim of a continuing violation of age discrimination because plaintiff had applied for, but was not selected for, several other Contract Specialist vacancies at the agency since 1991.

On August 17, 2001, plaintiff was notified by McCurdy that the agency had decided to sustain only one of the two charges that had resulted in her suspension, thus reducing the suspension to an official reprimand that would remain in plaintiff's personnel folder for three years. On the same day, McCurdy directed plaintiff to report for a 120-day temporary detail as a Contract Specialist in the agency's Washington, D.C. office. When plaintiff's reassignment became permanent on November 20, 2001, plaintiff amended her formal EEO complaint to add a claim that her reassignment was also the product of prohibited age discrimination and retaliation.

In early January 2002, plaintiff responded to a second vacancy announcement ("Vacancy 2") by submitting an application for a GSA Contract Specialist position. On June 20, 2002, plaintiff was notified that Imer Gunther, a thirty-eight year old GSA employee with significantly less experience than plaintiff had been selected for the position. As a consequence, plaintiff filed a second, separate informal EEO complaint on June 20, 2002, alleging discrimination on the basis of age in violation of the ADEA and retaliation in response to her prior EEO activity in violation of Title VII and filed a formal complaint on August 28, 2002.

Plaintiff now brings an action in this district alleging that defendant violated the ADEA and Title VII when it:

(i) Discriminated against her on the basis of age in its selection for Vacancy 1 (Count I);

(ii) Retaliated against her by proposing to suspend plaintiff and ultimately, reprimanding her (Count II);

(iii) Retaliated against her by reassigning plaintiff to the agency's Washington, D.C. office (Count III); and

(iv) Discriminated against her on the basis of age and retaliated against her in its selection for Vacancy 2. (Count IV)

Plaintiff seeks damages and injunctive relief. In damages, plaintiff seeks backpay, compensatory damages, and attorney's fees and costs. The injunctive relief sought includes reassignment to the agency's Alexandria, Virginia office, removal of all adverse and disciplinary actions from plaintiff's personnel file, and an injunction against further acts of discrimination and retaliation.

While there is no dispute that plaintiff exhausted her administrative remedies, defendant mounts a threshold challenge to plaintiff's retaliation claims on the grounds: (i) that plaintiff's claims for retaliation under the ADEA are barred by sovereign immunity and (ii) that plaintiff may not pursue her ADEA retaliation claims under Title VII. Defendant also seeks (iii) to dismiss plaintiff's prayer for compensatory damages and (iv) to strike plaintiff's demand for a jury trial. Each of these is separately addressed.

II.

The doctrine of federal sovereign immunity has a long Supreme Court pedigree. Thus, it has long been settled that the United States remains "immune from suit save as it consents to be sued...." Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (citations omitted). And it is equally well-settled that the United States cannot be held to have consented to suit and hence waived its sovereign immunity "without an express and unequivocal statutory waiver."² The corollary to this settled principle is that a waiver of sovereign immunity may not be implied; nor can "[a] statute's legislative history ... supply a waiver that does not appear clearly in any statutory text." Lane, 518 U.S. at 192, 116 S.Ct. 2092. It further follows from these principles that in the event of waiver, the scope of the waiver must be "strictly construed" within the scope of the express statutory language. See id. ("[A] waiver of the Government's sovereign immunity will be strictly construed in terms of its scope, in favor of the sovereign."); Lehman, 453 U.S. at 161, 101 S.Ct. 2698 (citing Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957)).

Given these settled principles, the search for an answer to the question whether the federal government has waived sovereign immunity for retaliation claims under that ADEA must begin with the language of that statute itself. Thus, § 633a of the ADEA, which is the ADEA section explicitly applicable to the federal government, provides that "[a]ll personnel actions affecting employees ... who are at least 40 years of age... in executive agencies... shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). This provision makes clear, and defendant does not dispute, that the statute expressly and unequivocally waives sovereign immunity with respect to age discrimination suits against federal agencies. See, e.g., Daniels v. Browner, 63 F.3d 906, 907 (9th Cir.1995) (finding that the ADEA waived sovereign immunity in a age discrimination suit against the Environmental Protection Agency). Yet, this does not end the analysis; the ADEA does not expressly prohibit retaliation by federal entities; indeed, retaliation is not addressed or mentioned in § 633a or in any other ADEA provision related to discrimination claims against federal entities.³ Simply put, then, the fact that § 633a clearly waives the federal government's sovereign immunity for age discrimination claims does not dispose of the sovereign immunity issue with respect to retaliation claims. This is so because they are different claims, with...