Poland v. Chertoff
| Decision Date | 20 July 2007 |
| Docket Number | No. 05-35779.,No. 05-35508.,05-35508.,05-35779. |
| Citation | 494 F.3d 1174 |
| Parties | James R. POLAND, Plaintiff-Appellee, v. Michael CHERTOFF, Secretary of the Department of Homeland Security, Defendant-Appellant. James R. Poland, Plaintiff-Appellee, v. Michael Chertoff, Secretary of the Department of Homeland Security, Defendant-Appellant, and Paul O'Neill, Secretary of Treasury, Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peter D. Keisler, Assistant Attorney General, Karin J. Immergut, United States Attorney, Marleigh D. Dover and Mark R. Freeman, Attorneys, Appellate Staff Civil Division, United States Department of Justice, Washington, D.C., for defendant-appellant Michael Chertoff.
Kevin Keaney, Kevin Keaney PC, Portland, OR, for plaintiff-appellee James R. Poland.
Appeal from the United States District Court for the District of Oregon; Anna J. Brown, District Judge, Presiding. D.C. Nos. CV-02-01660-AJB, CV-02-01660-AJB.
Before: RONALD M. GOULD, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.
Opinion by Judge GOULD; Partial Concurrence and Partial Dissent by Judge PAEZ.
After a bench trial, the district court entered a judgment in favor of James R. Poland, a former employee of the United States Customs Service, on his employment discrimination claim against the Customs Service, represented by the Secretary of the Department of Homeland Security ("Secretary"). Specifically, the district court held the Customs Service liable for violating the Age Discrimination in Employment Act ("ADEA") by retaliating against Poland after he filed Equal Employment Opportunity ("EEO") complaints and by constructively discharging Poland by transferring him to a new job in a new location. The district court based its damage award solely on the theory that Poland had been constructively discharged from the Customs Service. On the Secretary's appeal, we affirm the district court's determination that the Customs Service unlawfully retaliated against Poland for filing EEO complaints. We reverse the district court's conclusion that the Customs Service's transfer of Poland amounted to a constructive discharge, and we vacate the district court's order awarding damages to Poland on a constructive discharge theory. We also vacate the district court's award of attorneys' fees to Poland. We remand the case to the district court so that Poland can amend his complaint to seek the remedies available under his retaliation theory.
Poland, who was born in 1946, joined the United States Customs Service in 1974. Poland began his career as a customs inspector in Nogales, Arizona. In 1978, the Customs Service transferred Poland to Washington, D.C., where he served as an operations officer. The Customs Service then transferred Poland to Blaine, Washington, where Poland worked as a special agent investigating customs crimes. In 1985, the Customs Service assigned Poland to be a supervisor in charge of six or seven special agents in Seattle, Washington. Two years later, in 1987, the Customs Service transferred Poland back to Washington, D.C., where he worked in the customs fraud investigation division. Later that year, the Customs Service reassigned Poland to be a special assistant to the Assistant Commissioner for Investigations. Poland served the Customs Service in that capacity until 1989, when the Customs Service assigned him to work with the Central Intelligence Agency as a customs advisor.
In March 1991, Poland accepted the position of Resident Agent in Charge ("RAIC") of the Customs Service's Portland, Oregon office. In Portland, Poland supervised twelve agents, a security officer, and an administrative officer. Poland also oversaw the Customs Service's branch offices in Coos Bay and Astoria.
During his first four years as RAIC of the Portland office, Poland reported to the Special Agent in Charge ("SAIC") of the Seattle Customs Service office. However, in 1995, pursuant to a reorganization of the Customs Service, Poland began reporting to Gary Hillberry, SAIC of the Denver, Colorado office. The district court found that, during the time he supervised Poland, "SAIC Hillberry was preoccupied with and frequently commented on Poland's age and the age of the majority of the special agents assigned to the Portland office." Representative conduct by Hillberry and the Denver SAIC office included:
• Telling Poland he was "too old" for career advancement with the Customs Service.
• Telling Poland on multiple occasions that the officers in the Portland office were too old.
• Refusing the request of a forty-nine-year-old special agent assigned to the Las Vegas office to transfer to the Portland office because there were no openings in Portland and, even if there were, Hillberry wanted to put "younger agents" there.
• Telling a special agent assigned to the Denver office that Poland had a bunch of "old farts" in Portland who needed to "get with the times."
• Stating repeatedly that the personnel policies of the Customs Office of Investigations and budgetary constraints mandated that "younger agents" be brought into management positions.
• Circulating two "retirement surveys" directing Poland to provide "retirement related information" on special agents and investigators approaching retirement age.
On December 7, 1997, Poland filed an age discrimination complaint against Hillberry with the Customs Service's EEO Counselor. The next month, on January 6, 1998, Poland filed a reprisal complaint with the EEO Counselor, alleging that in retaliation for Poland's age discrimination complaint, Hillberry changed his mind regarding Poland's request to reassign an agent under Poland's supervision.
While Poland was serving as RAIC of the Portland office, Pamela Ewing was the Management Program Officer in the Denver SAIC office. Over the twenty-eight months from September 1995 (when Poland began reporting to Hillberry) to December 1997, Ewing wrote four notes to Hillberry or for Poland's file regarding Poland's conduct as RAIC of the Portland office. Between the time Poland filed his initial EEO age discrimination complaint in December 1997 and January 1999, a time period of fourteen months, Ewing wrote an additional twenty-three notes criticizing Poland's conduct. Also, over the course of his tenure as RAIC, Poland sought, but was not granted, promotions in other geographic locations.
In the spring of 1999, Hillberry requested that the Customs Service undertake an administrative inquiry into Poland's performance as RAIC of the Portland office. Hillberry alleged that Poland was confrontational, argumentative, and disrespectful toward members of the Denver SAIC office. The Customs Service initiated a formal inquiry in the summer of 1999. Witnesses selected by the Customs Service, without input from Poland, to testify before the administrative inquiry panel, testified that, as a manager, Poland was intransigent, inflexible, and unwilling to accept the views of others.
At the conclusion of the administrative inquiry, the panel found that Poland engaged in unprofessional and inappropriate conduct, and was confrontational, argumentative, retaliatory, and ineffective as a manager. The Customs Service Disciplinary Review Board reviewed the panel's conclusions and found that they lacked sufficient specificity to support an adverse employment action against Poland, but concluded that it was in the best interest of the Customs Service to reassign Poland to a nonsupervisory position somewhere other than Portland because of the Portland staff's concerns about retaliation for their participation in the administrative inquiry.
The Assistant Commissioner of Customs for the Office of Investigations, Bonni Tischler, agreed with the Review Board's recommendation and decided to reassign Poland. On February 25, 2000, Tischler notified Poland that he was being transferred to Vienna, Virginia and reassigned to the nonsupervisory position of Criminal Investigator. Poland accepted the reassignment and began working in Vienna in April 2000. After the transfer, Poland's pay and benefits remained unchanged from what they were when he was RAIC of the Portland office. In September 2000, Poland decided to take early retirement effective December 1, 2000, three years short of his December 2003 mandatory retirement date from the Customs Service.
On December 10, 2002, Poland filed his complaint in the district court alleging that the Customs Service violated the ADEA. Poland asserted three claims under the ADEA: First, he alleged disparate treatment based on the Customs Service's failure to promote him because of his age. Second, he asserted that the Customs Service initiated the administrative inquiry against him in retaliation for his engaging in the protected activity of filing EEO age discrimination complaints. Finally, he alleged that the Customs Service constructively discharged him as a result of that retaliatory inquiry.
The district court conducted a bench trial. On Poland's claim of disparate treatment based on the Customs Service's failure to promote him, the district court found in favor of the Customs Service, reasoning that Poland did not establish that his age was a motivating factor in the Customs Service's decision not to promote him because he did not present evidence that he was denied a promotion or that younger employees were promoted ahead of him.
On Poland's claim of retaliation, however, the district court ruled in Poland's favor. The district court found that Poland's performance reviews prior to Hillberry's initiation of the administrative inquiry never addressed any of the issues raised by the inquiry. Also, the district court found that the Customs Service had never disciplined Poland for any of the alleged behavior that came to light during the inquiry. Additionally, the district court found that the Customs...
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