T.S. Ellis, III, District Judge.
Plaintiff, a federal annuitant, claims that individuals at the Transportation Security Administration ("TSA") violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et. seq., when they refused to extend a salary offset waiver which had allowed plaintiff to collect his full salary without any offset for the amount of his annuity. Plaintiff, who was 58 years old at the time, further claims that he was retaliated against for contacting the EEO office with respect to the alleged discrimination. Defendant filed a motion to dismiss or for summary judgment. Because matters outside the pleadings are considered, defendant's motion is treated as a motion for summary judgment. See Rule 12(d), Fed.R.Civ.P.; Rule 56, Fed.R.Civ.P.
Typically, if an annuitant is rehired by the federal government after retirement, the annuitant's salary is reduced by the amount of their annuity. The U.S. Office of Personnel Management ("OPM") is permitted, however, to delegate to an agency the authority to waive such salary offsets "on a case-by-case basis, for an employee serving on a temporary basis, but only if, and for so long as, the authority is necessary due to an emergency involving a direct threat to life or property or other unusual circumstances." 5 U.S.C. § 8344(f). TSA, which was established in November 2001, was granted such authority on February 27, 2002 based on its urgent need to hire experienced professionals and lack of other staffing options, the enormity of the Aviation and Transportation Security Act mandates, and the direct threat to life and property demonstrated by the September 11th attacks. Specifically, TSA was granted the authority to provide such waivers for periods of up to five years, but importantly, waivers could
On August 27, 2004, plaintiff, then still employed by the Bureau of Alcohol, Tobacco and Firearms ("ATF"), was offered the position of Assistant Federal Security Director for Law Enforcement ("AFSD-LE") at Baltimore/Washington Thurgood Marshall Airport ("BWI"). The offer noted that, as required by law, plaintiffs salary would be reduced by the amount of any annuity. On August 30, 2004, plaintiff declined the offer noting that while he was a current federal employee, he was requesting a five-year salary offset waiver so that he could retire and be rehired by TSA and receive both a full salary and annuity. Plaintiffs request for a waiver was granted based on findings (i) that plaintiff would refuse employment without it, and (ii) that there was no other reasonable staffing options. But plaintiffs waiver was only approved for a period of three years because there was no supporting rationale for a five-year waiver and no plan to identify a pool of candidates who had the potential to be a permanent successor. Subsequently, plaintiff retired from ATF, effective November 12, 2004, and was appointed as the AFSD-LE at BWI for a period not to exceed three years, effective November 14, 2004. During his tenure with TSA, plaintiff also served in his personal capacity as president of the Federal Law Enforcement Officers Association (FLEOA), a volunteer, nonpartisan professional association for federal law enforcement officers that provides them with legal assistance and representation and also lobbies for the passage of legislation beneficial to them.
On June 12, 2006, in response to a request to extend TSA's waiver authority, the OPM delegated new salary offset waiver authority to the Department of Homeland Security ("DHS"), which subsequently re-delegated that authority to TSA.
Plaintiff alleges that two senior TSA employees who participated in ERC meetings, namely Gale Rossides, who was 53 in 2008, and Michael Restovich, who was 60 in 2008, made statements that demonstrated discriminatory animus based on age, specifically:
On January 11, 2007, plaintiff contacted the EEO office by telephone to file an informal age discrimination complaint. Plaintiff filed a formal complaint in April 2007.
On May 7, 2007, TSA's Assistant Administrator for Human Capital informed plaintiff that his waiver would not be extended beyond the termination of his original three-year appointment. Plaintiff was advised that if he wished to be considered for continued employment without a waiver, he should notify his manager within ten days. On June 8, 2007, a TSA field operations official contacted plaintiff, noting that plaintiff had not specified whether he wished to be considered for continued employment without a waiver. Plaintiff responded that his decision to remain with TSA, with or without a waiver, would be decided by the EEOC or federal court based on his discrimination complaint. Plaintiff alleges that previously, on February 2, 2005, Dan Sullivan, the TSA Assistant Director for Law Enforcement, told plaintiff that plaintiff would receive a two-year extension on his waiver.
Summary judgment is appropriate where, on the basis of undisputed material facts, the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed.R.Civ.P. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The question on summary judgment is "whether a reasonable jury could find in favor of the non-moving party, taking all inferences to be drawn from the underlying facts in the light most favorable to the non-movant[.]" In re Apex Express, 190 F.3d 624, 633 (4th Cir. 1999). Rule 56 mandates summary judgment if the nonmoving party, after a reasonable time for discovery, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. To defeat summary judgment, the non-moving party may not rest upon a mere "scintilla" of evidence, but must set forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Plaintiffs first claim is that the ERC impermissibly considered age in the decision not to extend his waiver.
An unlawful decision may involve both permissible and discriminatory factors. See Hill, 354 F.3d at 284. The parties dispute whether the ADEA is violated only if plaintiffs age was the "but for" cause of the decision not to extend the waiver or whether there is an ADEA violation if plaintiffs age was considered at all, even if not a determining factor. A brief review of the relevant Supreme Court and circuit authority aids in resolving this dispute.
In Price Waterhouse, a Title VII case held applicable to ADEA actions,
Recently, the Supreme Court held that the Price Waterhouse burden-shifting framework cannot apply to ADEA claims because ADEA's statutory language requires "the plaintiff retain[] the burden of persuasion to establish that age was the `but-for' cause of the employer's adverse action." Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). In Gross, however, the Supreme Court reached its conclusion based on a close reading of the ADEA provision that creates a cause of action against private employers, 29 U.S.C. § 623(a). Yet, at issue here is not § 623(a), but rather § 633a, which creates a cause of action for federal employees. And importantly, the language of § 633a differs from § 623(a). Specifically, § 623(a) prohibits personnel decisions made "because of a person's age, while § 633a provides that personnel actions "shall be made free from any discrimination based on age." Based on this difference, the Court of Appeals for the D.C. Circuit recently held that Gross did not apply to claims brought pursuant to § 633a. See Ford v. Mabus, 629 F.3d 198, 205-206 (D.C.Cir.2010). According to the D.C. Circuit, a plaintiff may prevail on an age discrimination claim against a federal employer by demonstrating that age was a factor in the employer's decision, even if it was not the "but for" cause. Id.
The D.C. Circuit's analysis has substantial force, but Fourth Circuit precedent precludes its application here. Prior to
Plaintiff alleges that the ERC recommendation not to extend most waivers and subsequent decision not to extend his waiver were improperly based on age. It is true that TSA had the authority to extend waivers in some circumstances, but it is also clear from the record that this authority could only be exercised in extremely narrow circumstances, namely where no other reasonable staffing option existed. Moreover, the undisputed facts demonstrate that these circumstances did not exist with respect to plaintiffs position where an announcement for his and five similar positions resulted in twenty-four qualified applicants. Nonetheless, plaintiff alleges that the statements by Rossides and Restovich are direct evidence that the decision not to extend plaintiffs waiver was based on his age.
It is also important to recall that there is no ADEA violation where an employer acts on the basis of a factor that correlates with age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (ADEA does not prohibit decisions based on pension status, even though pension status correlates with age). As a result, actions taken against rehired annuitants, such as failing to extend salary offset waivers, cannot be considered discrimination based on age simply because most rehired annuitants are older. And importantly, the contested decision did not involve terminating or refusing to re-appoint plaintiff, but simply phasing out his waiver, as required by law. This is evident from the fact that plaintiff was given the opportunity to seek re-appointment and the fact that plaintiffs replacement was in his fifties.
Moreover, even if the standard set forth by the D.C. Circuit in Ford v. Mabus were adopted here, plaintiff's claim would still fail. Because plaintiff's position could be filled without a waiver, TSA had no authority to extend the waiver, and the relevant decision-makers did exactly what they were required to do in the circumstances. No other factors, such as plaintiffs age, could have been considered because the alleged "decision" was not a discretionary determination but rather the implementation of a mandated result. To hold otherwise would be to give plaintiff a remedy against defendant where defendant's action was compelled by law.
Plaintiff also claims that the communications regarding conflict-of-interest
To prove a causal link, plaintiff must be able to demonstrate that the author of the alleged adverse action — here the letter from Buchanan — knew that plaintiff had engaged in a protected activity. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.2007). Defendant argues that there is no evidence that Buchanan, who sent the allegedly retaliatory memorandum, knew that defendant had contacted the EEO office. In this respect, defendant provides (i) the letter written by Buchanan to plaintiffs counsel stating she had no knowledge of plaintiffs contact with the EEO office, but this letter was not signed under oath, and (ii) a declaration in which Buchanan states she was not aware of plaintiffs "prior EEO activity," but the declaration is ambiguous with respect to whether or not plaintiffs January 2007 contact with the EEO office is considered "prior EEO activity."
Nonetheless, because plaintiff bears the burden of proving his prima facie case, defendant need not produce affidavits or other evidence, but need only show that plaintiff has failed to create a genuine issue of material fact with respect to the causation element. See Carr v. Deeds, 453 F.3d 593, 608 (4th Cir.2006) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Plaintiff has introduced no evidence that Buchanan — or Kilroy for that matter — knew of plaintiffs contact with the EEO office. Rather, plaintiff argues that such knowledge can be inferred by the close temporal proximity between his protected activity and the allegedly adverse action. Plaintiff argues this inference is supported by the fact that TSA management knew of plaintiffs position at the FLEOA since at least October 2005, but never previously raised potential conflicts of interest.
The Fourth Circuit has repeatedly held that summary judgment is appropriate where a plaintiff provides no evidence that a decision-maker knew of plaintiffs protected activity. See Baqir v. Principi, 434 F.3d 733, 748 (4th Cir.2006).
Causation does not end the analysis, for in order to demonstrate an adverse action, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (internal quotations and citations omitted).
First, the initial memorandum contained no suggestion that plaintiff was in violation of any statute. Rather, it described the relevant statutes and their application, and advised plaintiff to contact Buchanan if he had any questions about the guidance provided. Nor does Kilroy's statement that TSA had some ethical concerns suggest either that TSA believed plaintiff had violated the law or that any legal or disciplinary action was to follow. Notifying plaintiff about potential conflicts-of-interest, as was done in this instance, cannot be considered an adverse action. Plaintiff is not immunized from conflict-of-interest statutes because he filed a discrimination claim, and simply being told that one must abide by the law is not an "adverse action" but merely a fact. Cf. Wells v. Gates, 336 Fed.Appx. 378, 385 (4th Cir.2009) ("An employer may enforce generally applicable employment policies against its employees without creating a cause of action for retaliation."). To conclude otherwise would, in effect, preclude an agency from advising its employees on applicable law; something it must be able to do whether or not an employee has filed a discrimination claim.
Plaintiff argues, however, that because the original memorandum was inaccurately broad, it is elevated to the level of an adverse action. While unfounded threats of legal action may constitute an adverse action in certain circumstances, there were no threats here. Even though it did construe the statutes too broadly, the memorandum
Furthermore, it is worth noting that even if the memorandum may be considered a materially adverse action, the undisputed record reflects a clear, non-retaliatory reason for its issuance that is not pretextual. Buchanan issued the memorandum to advise plaintiff about potential conflicts-of-interest. In the circumstances, it was and is entirely appropriate for Buchanan — or Kilroy for that matter — to inform a TSA employee about potentially applicable federal laws, and to be available for questions if the employee subsequently believes that advice is overly broad. See Wells, 336 Fed.Appx. at 385 (application of generally applicable rules does not create cause of action for retaliation). As a result, even if plaintiff had made a prima facie case of retaliation, his claim still fails. See Baqir, 434 F.3d at 747 (plaintiff must show employer's proffered non-retaliatory reason for action is pretextual).
Accordingly, for the foregoing reasons, summary judgment must be granted for defendant. An appropriate Order will issue.