Washington v. Garrett

• Citation: 10 F.3d 1421
• Decision Date: 26 January 1994
• Docket Number: No. 92-55124,92-55124
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 540, 63 Empl. Prac. Dec. P 42,860 Diane Y. WASHINGTON, Plaintiff-Appellant, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1421

10 F.3d 1421

63 Fair Empl.Prac.Cas. (BNA) 540,

63 Empl. Prac. Dec. P 42,860

Diane Y. WASHINGTON, Plaintiff-Appellant, v. H. Lawrence GARRETT, III, Secretary of the Navy, Defendant-Appellee.

No. 92-55124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1993.

Decided Nov. 5, 1993.

As Amended on Denial of Rehearing Jan. 26, 1994.

Diane Y. Washington, pro se.

Katheryn A. Snyder, Asst. U.S. Atty., San Diego, CA for defendant-appellee.

Before FLETCHER, POOLE, and THOMPSON, Circuit Judges.

Appeal from the United States District Court for the Southern District of California.

FLETCHER, Circuit Judge:

Diane Washington appeals pro se the district court's order granting partial summary judgment to the government and dismissing the remainder of her suit asserting claims of unlawful personnel practices and employment discrimination against the Navy. Because Washington alleges triable claims with respect to her separation from the Navy, we reverse in part the district court's grant of summary judgment.

FACTS AND PROCEDURAL HISTORY ¹

From November 1986 to July 1988, Diane Washington, an honorably discharged Vietnam veteran, was employed as a Public Affairs Specialist at the Naval Training Center in San Diego, California. It was her job to edit The Hoist, the base newspaper. In that capacity, she distributed writing and photographic assignments and oversaw the layout and printing of the paper. Washington's civilian editorial position was classified as GS-9.

Initially, Washington worked with five other employees in the Public Affairs Office: Barton D. Buechner, Public Affairs Officer; Deborah Browning, Assistant Public Affairs Officer; Patricia Neal, Chief Journalist; Steven Hendrickson, Staff Writer; and Shannon Trahan, Secretary. Washington was the only black employee. She reported to Buechner, who headed the office. Buechner and Neal were active-duty Navy officers.

In 1987, Assistant Public Affairs Officer Browning left without a replacement and her duties were assumed by Neal. Hendrickson also left; his job was taken over by a new staff writer, Sharron Norrod, who was white. In January 1988, Trahan, the secretary, resigned, and was not replaced. Trahan's duties were absorbed by the remaining staff.

After these personnel changes, a divisive atmosphere prevailed in the Public Affairs Office. In particular, Washington and Norrod did not get along. According to Washington, Norrod, with the backing of Buechner and Neal, refused to take directions and acted in a generally insubordinate manner. Overall, Washington contends, she was subjected to discriminatory and harassing treatment at the hands of her coworkers.

On February 1, 1988, Buechner gave Washington a written and oral performance review. In the written evaluation, Washington was rated as outstanding in each of four categories. The review contained such praise as, for example.

Ms. Washington has maintained tight control over the publication of the HOIST since becoming editor in November, 1986. The paper is distributed on time each Friday to a large and diverse constituency, including targeted mailings to special audiences. She demands and enforces high standards of professionalism from the [printing] contractor, and assures that the product is the best possible.

Although he signed the written review, Buechner gave Washington a considerably less favorable oral evaluation. According to Buechner, at this meeting, he told Washington that she needed "to improve in the areas of interpersonal communication, teamwork, delegation skills, and overall demeanor." The next day, February 2, Washington reported for work but then walked off the job. She later secured a doctor's note which indicated that she was suffering from job-related stress and that she intended to return to work after her recovery.

Shortly after Washington's departure, Buechner assigned Neal to take over the editorial responsibilities of the paper. Buechner claims to have decided in the next few days that the office "ran more smoothly" without Washington. Sometime before February 9, he contacted the Naval Training Center's Chief of Staff, P.M. Reber, to arrange to have Washington's position abolished through a reduction in force ("RIF") action. During their discussion of the proposed RIF, Buechner expressed concerns to Reber about Washington's behavior. Reber responded to Buechner with a memorandum which stated 1. In response to severe budget reductions there are decreased funds available for civilian personnel. While it is recognized that the HOIST serves a vital function at this command, it is no longer feasible to maintain a GS-9 employee solely for the purpose of editing this publication.

2. In accordance with your earlier temporary arrangements, JOC Neal is to assume responsibility for editing the newspaper....

3. I regret that this action is necessary....

4. By copy of this memorandum, the Civilian Personnel Office is directed to take action to abolish subject position, and make appropriate arrangements with regard to the incumbent.

Washington's was the only position to be affected by the RIF.

At about the same time as the command's approval of the elimination of Washington's position ostensibly for budgetary reasons, Buechner was informed by the agency's comptroller that it would be possible to hire a new secretary and another staff writer. Meanwhile, it appears that Reber sought the advice of the station's civilian personnel office concerning the effects of the reorganization on Washington's job rights.

On February 24, while Washington was still on sick leave, she and her union representative met with Buechner to discuss her return to work. Notwithstanding the significant steps Buechner had already taken behind the scenes toward the elimination of Washington's editorial position, he agreed that Washington could eventually resume her editorial role when she returned from sick leave. The memorandum of agreement from this meeting provided that Washington would come back to work on March 7 as a staff writer, but would not be downgraded, and would "work gradually for a period not to exceed thirty (30) days back into the full performance of her [editorial] duties."

Intraoffice politics did not improve upon Washington's return to the Public Affairs Office on March 7. Washington's name was written in last on the office sign-out board, below Norrod's and the new secretary's, even though everyone else was listed in rank order. She claims that an office partition had been moved so that her office space was reduced to approximately one-quarter the size of the space occupied by Norrod. Apparently at Buechner's direction, the word "staff" was added to Washington's usual byline, while every other writer was identified merely by name and naval office. Washington viewed the altered byline as an attempt to lower her status. In late March, Neal drafted a memorandum which, according to Washington, authorized everyone on the Public Affairs staff to pick up office mail except her. Finally, according to Washington, on March 21, Buechner extended her staff writing detail for an additional 120 days, reassuring her that it was only temporary and that no RIF was being contemplated.

On or about April 5, Norrod filed an informal Equal Employment Opportunity ("EEO") Complaint against Washington. Norrod alleged that Washington had remarked to her, "When you're little and cute and white, you get your way." Washington responded by filing her own informal EEO complaint on April 6, in which she listed numerous acts of perceived harassment on the part of Norrod and others before and since her return to the office, some of which are described above. On May 3, Washington filed a formal EEO complaint against the Naval Training Center alleging race and sex discrimination (the "May 3 complaint").

Three days later, on May 6, Washington received a RIF notification which informed her that her GS-9 editorial position was being abolished as part of a "realignment" of the Public Affairs Office. The stated goal of the reorganization was to "reduce the higher level structure and to better conform with the most essential portions of the missions and functions of the office." The notice continued,

A retention register has been prepared which gives full consideration to veteran's preference, civil service tenure, length of Federal Service and performance ratings. The retention rights of all employees have been checked and it has been determined that your best offer is that of Change to Lower Grade to a newly established position Washington was instructed to respond by May 13 if she wanted to accept the GS-7 writer position or she would be separated on June 10. The notice further stated that the RIF "[did] not reflect on [Washington's] service or conduct" and that the necessity of an office realignment was the "sole reason" for the action taken. Appended to the notice was additional information indicating that, notwithstanding the RIF, Washington would be treated for pay purposes as a GS-9 for two years and, with certain conditions, was eligible to retain the same rate of pay, though with more limited salary increases, even after that two-year period.

of Writer, GS-1082-07. If you accept this offer, the Change to Lower Grade will be effective 12 JUNE 1988 and your last day of active duty in your present position will be 10 JUNE 1988.

Also appended to the RIF notification was job placement information indicating that Washington, as a career employee, would be included in the Navy's Reemployment Priority List ("RPL") and was entitled to be registered in the Department of Defense ("DOD") Priority Placement Program ("PPP"). These are mechanisms whereby civilian workers who have been separated as a result of a RIF receive special or priority consideration for reemployment.

Sometime after the RIF was effected, Buechner prepared a memorandum purporting to explain his reasons for taking the actions...