Eugene v. Rumsfeld, CIV. A. H-99-4078.

• Decision Date: 11 October 2001
• Docket Number: No. CIV. A. H-99-4078.,CIV. A. H-99-4078.
• Citation: 168 F.Supp.2d 655
• Parties: Clara EUGENE, Plaintiff, v. Donald H. RUMSFELD, Secretary, Department of Defense, Defendant.
• Court: U.S. District Court — Southern District of Texas

168 F.Supp.2d 655

Clara EUGENE, Plaintiff, v. Donald H. RUMSFELD, Secretary, Department of Defense, Defendant.

No. CIV. A. H-99-4078.

United States District Court, S.D. Texas.

October 11, 2001.

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Ronald J. Merriweather, Houston, TX, for Plaintiff.

John B. Kinchen, Assistant U.S. Attorney, Elizabeth F. Karpati, Assistant U.S. Attorney, Vernon L. Lewis, Assistant U.S. Atty, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court are Defendant Donald H. Rumsfeld, Secretary, Department of Defense's ("Rumsfeld") Motion for Partial Dismissal (# 35) and Motion for Summary Judgment (# 41) as well as Plaintiff Clara Eugene's ("Eugene") Motion for Partial Summary Judgment (# 43). Both parties seek summary judgment regarding Eugene's claims of race and national origin discrimination brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000h-6, age discrimination under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), 29 U.S.C. §§ 621-634, and retaliation in violation of both statutes. Having reviewed the pending motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that Rumsfeld's motion for partial dismissal should be granted in part, that Rumsfeld's motion for summary judgment should be granted, and that Eugene's motion for partial summary judgment should be denied.

I. Background

Eugene is a fifty-six-year-old, African-American female who was first employed by the federal government on August 13, 1975. From June 1994 until her separation from federal service in August 1998, following a reduction-in-force ("RIF"), she worked at the Defense Logistics Agency ("DLA"), Defense Energy Support Center ("DESC") as a Transportation Assistant (Office Automation), job grade GS-6, series GS-2102-06, at the Defense Fuel Office ("DFO") in Houston, Texas. The DLA is part of the United States Department of Defense ("DOD"). Her direct supervisor from July 1997 until her termination was John Guillochon ("Guillochon"), District Team Chief at the DFO in Houston. Eugene's duties included administrative tasks such as data entry, keeping automated reports on the locations of rail cars that were transporting fuel for the agency, preparing route orders specifying the rates for the transportation of fuel, and dealing with customers.

In early 1997, the DFO in Houston determined that a reorganization was necessary to increase its efficiency and effectiveness in view of an agency mandate to reduce staffing by 28% by 2001. DFO management permitted an employee reorganization team to formulate the plans for the reorganization, and the employees enlisted the services of an external, independent consultant, Larry Bowman ("Bowman") of the American Productivity and Quality Center ("APQC"). While management employees were not permitted to attend, all non-management employees were invited to the reorganization meetings, and Eugene attended some of them. On February 12, 1998, as a result of the APQC's findings, the DFO sent a letter request to the Headquarters Defense Distribution, DESC, to eliminate through a RIF all seven lowest-graded positions, GS-5 through GS-7, jobs involving administrative and technical support duties, which request was approved on February 17, 1998. Eugene learned during the month of February 1998 that her position would be abolished.

On March 6, 1998, prior to implementing the RIF, the DLA issued a letter to the affected employees, including Eugene, offering Voluntary Separation Incentive Pay ("VSIP") of up to $25,000.00 for the employees in question to retire or resign voluntarily from federal employment and an opportunity under the Voluntary Early Retirement Authority ("VERA") to take an early retirement at a reduced annuity. The letter provided a window of acceptance from March 6 through March 20, 1998, and required accepting employees to retire or resign between March 20 and March 31, 1998. Guillochon hand-delivered this letter to Eugene on March 9, 1998, but she did not take advantage of the offer. In addition to VSIP and VERA, the impacted employees were offered early registration in the Department of Defense Priority Placement Program ("PPP"), an automated system that gives employees who have been notified of an impending RIF an opportunity to seek employment in other federal agencies. Out of the five affected employees, all but Eugene registered upon being notified of the program. Because one employee, Irma Pannett Schubert ("Schubert"), a white female who was approximately sixty-five years of age at the time, accepted the VSIP offer and one of the impacted positions was already vacant, the RIF process began for the five remaining affected positions. These positions were held by Eugene, a black female born January 26, 1945; Peggy Nolan ("Nolan"), a black female born May 23, 1951; Theresa Pollard ("Pollard"), a white female born September 28, 1964; Mary Jane Dover ("Dover"), a Hispanic female born May 29, 1952; and Iola Yvonne Woodard ("Woodard"), a black female born June 9, 1955. It appears that Eugene subsequently registered with the PPP following the RIF.

The RIF process, as explained by Rumsfeld, typically entails a competition among employees for positions remaining in the organization based on factors such as qualifications, tenure, seniority, veteran's preference, and performance appraisals. In this situation, however, there were no positions remaining in the organization for which the five employees subject to the RIF were qualified. As a consequence, on May 11, 1998, all five employees were issued RIF separation notices. Two of the employees, Nolan and Woodard, resigned from federal service and received separation pay but no federal service annuity. Two other employees, Pollard and Dover, were eventually placed with other federal agencies through the PPP or by individual application for employment. The effective date of the RIF was July 14, 1998. Eugene obtained a thirty-day extension, and, on August 13, 1998, elected to retire early. Upon her retirement, she qualified for and began receiving a federal service annuity. Since that date, she has worked a total of three to four weeks in temporary, non-government jobs.

When Guillochon hand-delivered the RIF notice on March 9, 1998, he also presented Eugene with a performance appraisal rating her "Minimally Acceptable" for the period April 1996 through December 1997, signed by him and Captain Sharon McKenzie ("McKenzie"), the Commander of the DFO in Houston. On March 10, 1998, Eugene filed an employee grievance under the agency's negotiated procedure complaining that she had erroneously received a "Minimally Acceptable" performance appraisal on March 9, 1998, and that the appraisal incorrectly listed her title and series as Transportation Clerk, Office Automation GS-2005-06. As a result of the grievance, she was issued a new performance appraisal on April 22, 1998, in which she was rated "Fully Acceptable" and her title and series were corrected to Transportation Assistant, GS-2102-06.

On April 10, 1998, Eugene contacted the Equal Employment Opportunity ("EEO") office of the DLA, alleging race, national origin, and age discrimination at the Houston DFO. Eugene complained to the EEO that she had been assigned an overabundance of work that was normally performed by employees at the GS-11 or GS-12 level, that she received a VERA/VSIP letter, that Guillochon had denied or had not responded to her requests to note her additional duties on her performance plan, that she received a RIF letter with an attached minimally acceptable performance appraisal, and that there was an additional critical element on her performance plan not shared by others on her team at her grade level. The complaint was not resolved and, on June 22, 1998, Eugene filed a formal complaint of discrimination with the DLA, alleging race, color, age, and sex discrimination. In addition to the complaints raised in her grievance and her informal complaint, she complained of reprisals for speaking out about injustices, an unequal distribution of typical duties as well as added duties, a higher volume of work when other employees' work volume was reduced, the receipt of a $500.00 performance award rather than a $1,000.00 award, and the fact that McKenzie had signed her performance evaluation when she did not become Guillochon's superior until December 1997.

On August 23, 1998, the DLA Administrative Support Center sent Eugene an Acceptance/Dismissal Letter of Issues, stating that it would investigate whether she had been discriminated against based on her race, color, age, or sex when:

1. Since July 1997 to present, you have been assigned GS-11/12/13 duties, in addition to your Transportation Assistant duties. Specifically, you have been placed in a group with heavy concentration of Transportation Movement work (over 50%) that was being done by a GS-12 and GS-13 and you, as a GS-6, have been made responsible for this work.

2. On May 11, 1998, you received a Reduction in Force (RIF) letter.

The agency dismissed as moot the claims that she had previously raised through the internal grievance procedure in view of the April 22, 1998, correction of the documents at issue. It also dismissed her complaint that she received the letter offering VERA and VSIP on March 9, 1998, for failure to state a claim, explaining, "You have failed to show how this allegation has caused you harm or adversely affected the terms and conditions of your employment." The agency dismissed as untimely her claims regarding her being the only employee on her team at her grade level who had an additional critical element in her Position Performance Plan dated June 2, 1997, and her receipt of an electronic mail ("e-mail") communication on October 24, 1997, advising her that a...