In the Supreme Court of the United States
DAVID P. ADAM, ET AL., PETITIONERS
KEN SALAZAR, SECRETARY OF THE INTERIOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
Counsel of Record
Assistant Attorney General
MARLEIGH D. DOVER
SARANG VIJAY DAMLE
Department of Justice
Washington, D.C. 20530-0001
Whether the court of appeals properly affirmed the district court's judgment that the Secretary did not vio late the Civil Service Reform Act, 5 U.S.C. 7701 et seq., or engage in age discrimination.
In the Supreme Court of the United States
DAVID P. ADAM, ET AL., PETITIONERS
KEN SALAZAR, SECRETARY OF THE INTERIOR
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
The opinion of the court of appeals (Pet. App. 1a-15a) is unreported. The relevant opinions and orders of the district court (Pet. App. 16a-66a; App., infra, 1a-23a, 24a-57a) are unreported.
The judgment of the court of appeals was entered on September 9, 2008. A petition for rehearing was denied on November 19, 2008 (Pet. App. 67a-68a). The petition for a writ of certiorari was filed on February 17, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
1. Petitioners are 14 former employees of the Geo logic Division of the United States Geological Survey (USGS), which is an agency within the United States Department of the Interior. In 1995, petitioners were released from the agency due to a reduction in force (RIF). Pet. 3. Petitioners allege that they were re leased because of age discrimination.
a. In 1993, the USGS formed a Transition Team to coordinate the agency's transition under the new presi dential administration. Pet. App. 18a. The Transition Team prepared a report on the agency's future, which stated that "[s]ome segments of the USGS currently are suffering from an aging, high-grade workforce that has limited the organization's financial flexibility and re stricted the influx of new ideas and talents." Id. at 18a- 19a. The report also stated that "[a]n aging workforce is a critical problem that must be addressed earnestly and creatively before any strategic recruitment plan can be implemented." Id. at 19a.
In 1994, Dr. Gordon Eaton was appointed the new Director of the USGS. Immediately after his appoint ment, Dr. Eaton gave speeches at the Geologic Divi sion's three major centers. In the speeches, Dr. Eaton referred to a poster that showed a dinosaur with the caption, "Which is scarier, change or extinction?" Pet. App. 20a. He also told the following riddle, which he had heard from members of the Transition Team: "What is the difference between Jurassic Park and the Geological Division of the Geologic Survey? * * * [O]ne is an amusement park filled with dinosaurs and the other is a movie." Id. at 20a-21a. After saying that, Dr. Eaton, who was then sixty-five years old, id. at 20a, said, "So those of you in my generation in the Geology Division, take that," id. at 21a. Dr. Eaton also lamented the lack of "bright new young active minds" in the agency. Ibid.
In the years prior to the 1995 RIF, the Geologic Divi sion was facing a "challenge of limited financial re sources." Pet. App. 27a. "[I]ncreases in funding for the science programs had not kept pace with increases in salary commitments, leading to declining availability of funds for operating expenses, or funds to purchase the equipment and supplies necessary to conduct the re search that was the Geologic Division's mission." Ibid. By 1994, there were calls within the Geologic Division for "a RIF to reduce [its] salary commitments." Id. at 28a. In 1995, Dr. Eaton "made the decision to go for ward with the RIF" after the House Appropriations Committee informed the Geologic Division that its bud get would be significantly reduced. Id. at 29a. After that announcement, the Geologic Division held briefings on the RIF at its Menlo Park center. Employees re ceived a flyer on the briefings that included a cartoon of a dog telling his mother, "You gotta help me, Mom * * *. This assignment is due tomorrow and Gramps doesn't understand the new tricks." Id. at 29a-30a. The flyer was prepared and distributed by Cynthia Ramseyer, a USGS secretary.
Neither the Transition Team nor Dr. Eaton nor Ms. Ramseyer was directly involved in the RIF.
b. The RIF was governed by federal regulations pro mulgated pursuant to the Civil Service Reform Act (CSRA). See 5 C.F.R. Pt. 351. In accordance with the regulations, the USGS carried out the planning and im plementation of the RIF in several distinct stages. First, the agency had to categorize each position within the agency into "competitive levels." See 5 C.F.R. 351.403(a)(1) (1996). Each competitive level included positions that were generally interchangeable, "so that [the] agency may reassign the incumbent of one position to any of the other positions [within the competitive level] without undue interruption." Ibid.
To ensure that all positions were assigned to proper competitive levels, the agency relied on "peer panels" of subject matter experts to review each position and place it in an appropriate competitive level. Pet. App. 33a. These panels "did not consider or discuss the ages of the incumbents of the positions." Id. at 34a.
The agency next developed staffing plans to deter mine what positions were needed to adequately staff the agency, keeping in mind the agency's financial con straints. Pet. App. 34a-36a. The initial staffing plans were developed by "Program Councils," which consisted of panels of management level employees in each of the Geologic Division's program offices. Id. at 34a-35a. These staffing plans were then modified by a central committee of 20 agency employees. Id. at 35a-36a. Age was not a factor in these decisions because the staffing plans were "unpopulated," meaning that they focused on specific positions, and not individual employees. Id. at 35a.
The agency next filled the staffing plans with partic ular employees from the competitive levels. When it had created the competitive levels, the agency had ranked incumbent employees holding positions within each level by a set of "retention factors" such as tenure, veterans preference, and years of government service. Pet. App. 31a. The staffing plans were "populated" according to those rankings, and "the employees whose positions were not placed on the staffing plans were released from their competitive levels." Id. at 37a. "There is no evi dence" that this process accounted for "employees' ages." Id. at 36a.
Even when an employee had been released from his or her competitive level, the employee could under cer tain conditions take a lower-ranking job in a different competitive level and displace an employee who would otherwise be retained. See 5 C.F.R. 351.701 (1996). In determining whether specific employees were permitted to exercise such "assignment rights," the agency turned to a panel of subject matter experts, comprised of senior employees within the Geologic Division who were "cho sen for their broad range of expertise and because they were highly respected." Pet. App. 38a. There was "no evidence that any of the [subject matter experts] consid ered or discussed the age of employees when they evalu ated assignment rights." Id. at 40a.
After the staffing plans had been created, the agency learned that its funding would not be cut as drastically as it had feared. Pet. App. 40a. The agency therefore convened a committee to add certain positions back into the staffing plans. Id. at 40a-41a. There was "no evi dence that age was considered or discussed" by this committee. Id. at 41a.
Petitioners were released from the agency as a result of the RIF. Pet. 3.
2. Pursuant to the Civil Service Reform Act, 5 U.S.C. 7701 et seq., qualified federal employees may appeal adverse employment decisions to the Merit Sys tems Protection Board (MSPB or Board). If the em ployee alleges that the adverse action was unlawful for discriminatory and nondiscriminatory reasons, the ap peal is designated a "mixed case." 5 U.S.C. 7702. While petitions for review of MSPB actions are ordinarily filed in the Court of Appeals for the Federal Circuit, 5 U.S.C. 7703(b)(1), in a "mixed case" judicial review of the final Board order must lie in a district court, see, e.g., Hayes v. United States GPO, 684 F.2d 137, 139-140 (D.C. Cir. 1982). The district court must review the discrimination claims de novo, 5 U.S.C. 7703(c), but the Board's conclu sions with respect to the nondiscrimination claims are reviewed on the administrative record and are accorded significant deference, ibid.
Petitioners brought a "mixed case" against the agency before the MSPB. As is relevant here, they al leged age discrimination, in violation of the Age Dis crimination in Employment Act of 1967 (ADEA), 29 U.S.C. 633a(a), which provides that "[a]ll personnel actions affecting employees * * * who are at least 40 years of age * * * shall be made free from any dis crimination based on age." Petitioners also alleged sev eral nondiscriminatory violations of the CSRA. 5 U.S.C. 7701 et seq. After a 91-day hearing, the MSPB sustained the agency's actions. App., infra 2a. It held that the agency had bona fide financial and reorganizational rea sons for conducting the RIF, that the RIF was carried out in accordance with applicable regulations under the CSRA, and that each petitioner was properly separated from service. App., infra, 27a.
3. Petitioners then commenced suit against the Sec retary of the Interior in district court in the Northern District of California, seeking review of, inter alia, the MSPB's decisions on their CSRA and age discrimination claims. The district court dismissed petitioners' CSRA claims on summary judgment. The court reviewed those claims under the deferential standard of review pro vided by 5 U.S.C. 7703(c), and found that the MSPB's decision was not arbitrary or capricious and was sup ported by substantial evidence. App., infra, 28a-49a.
The district court recognized that under 5 U.S.C. 7703(c), the MSPB's decision as to the discrimination claims had to be reviewed de novo. App., infra, 3a. The court permitted those claims to proceed to trial. Id. at 4a-20a, 22a. After a two-week bench trial, the district court ruled in favor of the government on petitioners' discrimination allegations. As to petitioners' disparate treatment claims, the district court found that although petitioners introduced some evidence that the USGS's culture was "tainted with age-based discriminatory ani mus," there was no evidence that any of the relevant decisionmakers who participated in the RIF process were motivated by such animus or that any of the ac tions taken against petitioners was the result of discrim ination. Pet. App. 60a-61a. As to each of the petitioners, the district court found that the agency had "legitimate, non-discriminatory reasons for separating" them. Id. at 61a; see also id. at 42a-57a (detailing the agency's non discriminatory reasons for separating each petitioner).
For example, the court concluded that petitioner Da vid Adam was separated not because of age discrimina tion, but because his particular specialty was no longer required. Pet. App. 56a-57a. Dr. Adam worked as a palynologist for the Global Change and Climate History Program, and specialized "in the climate history of the upper Cenozoic." Id. at 57a (citation omitted). He had also "designed a state-of-the-art pollen extraction labo ratory with a refrigerated core storage unit" for the agency's Menlo Park offices, where he worked. Ibid. As the district court concluded, the agency "did not have enough positions for all of the people conducting such research." Ibid. Moreover, the agency "decided to use the long-term core storage facility in Denver, rather than the one in Menlo Park" because it was more estab lished and had a permanent staff. Ibid. Thus, "[c]onsid ering these factors, the Program Council decided not to include a palynology position in Menlo Park on the staff ing plan." Ibid. Later, a separate panel of subject mat ter experts determined that Dr. Adam was not entitled to retreat to a different position. Ibid. The court thus concluded as a factual matter that there was "no evi dence that Dr. Adam's age was a factor" in either of these decisions. Ibid.
As to petitioners' disparate impact claims, the dis trict court concluded that petitioners had not made a prima facie case of discrimination. While "[o]lder work ers were more likely to have been negatively affected by the RIF than younger workers," that result did not by itself "suggest that age played a causal role in determin ing which employees were affected by the RIF, because it d[id] not account for other factors that may have influ enced which employees were affected by the RIF." Pet. App. 41a. In particular, the court concluded that peti tioners' proffered statistical evidence was flawed be cause it failed to account for the type of work an em ployee performed. Id. at 41a-42a. Moreover, the dis trict court found that petitioners had failed to "isolate and identify the specific employment practice responsi ble for the disparate impact." Id. at 63a. The district court held that petitioners could not point to the entire RIF as a single employment practice. Ibid. Instead, the RIF was better conceived as a series of separate deci sions made by the agency; for each of those decisions, there was no evidence of age discrimination. Ibid. The court further concluded that even if petitioners had made a prima facie case, they "would still not prevail." Id. at 64a. The agency had offered "a legitimate busi ness reason for conducting the RIF"-namely, cost- cutting-and petitioners had not "identified any other course of action that [the agency] could have taken that would have reduced the Geologic Division's salary obli gations enough to generate the operating funds that it needed to meet its programmatic goals." Ibid.
4. The court of appeals affirmed in relevant part in an unpublished memorandum opinion. Pet. App. 1a-15a. The court rejected petitioners' contention that the dis trict court should have applied "mixed-motive analysis" to their disparate treatment claims. Id. at 5a-6a. The court explained that mixed-motive analysis was inappro priate because the district court had found that the rele vant decisionmakers in the RIF process had not acted according to any discriminatory animus. Id. at 6a.
The court of appeals also rejected petitioners' con tention that they had made a prima facie case of discrim ination on their disparate impact theory. The court ob served that "analyzing the impact of a generalized policy is not specific enough," Pet. App. 7a (internal quotation marks omitted), and affirmed the district court's finding that "the reduction in force could be broken down into different elements and that statistical analysis of the reduction in force as a whole was thus insufficient to meet [petitioners'] burden." Ibid. The court of appeals acknowledged that the district court's application of the "business necessity" test was erroneous in light of this Court's decision in Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008). Pet. App. 13a n.2. But the court of appeals judged that error harmless be cause the district court had correctly held that petition ers had not made a prima facie case of disparate impact. Ibid.
Finally, the court of appeals rejected petitioners' argument that the district court applied deferential re view to their discrimination claims. The court of appeals concluded that the district court "properly separated the CSRA claims from the discrimination claims and prop erly reviewed the discrimination claims de novo," as re quired by 5 U.S.C. 7703. Pet. App. 9a.
Judge Reinhardt dissented in part. Pet. App. 14a- 15a. He would have held "that where there is irrefut able evidence of an officially sponsored culture of dis crimination in a workplace, it is not necessary to demon strate that the individual who ultimately undertook the challenged adverse employment action was motivated to do so by his own disciminatory animus." Ibid. He would therefore have "reach[ed] the merits of [petitioners'] mixed-motive claim and [found] discrimination in viola tion of the ADEA." Id. at 15a. He otherwise agreed with the majority's disposition of the remaining claims, including the CSRA and ADEA disparate impact claims. Ibid.
The petition for a writ of certiorari should be denied. The court of appeals' holding is correct, fact-bound, and does not implicate any significant questions of law or split of legal authority. None of petitioners' narrow challenges to the court of appeals' decision warrants review.1
1. Petitioners assert (Pet. 11-12) that the court of appeals' disparate-impact ruling contradicts this Court's decision in Meacham v. Knolls Atomic Power Labora tory, 128 S. Ct. 2395 (2008). That is incorrect.
In a disparate-impact suit under the ADEA, an em ployer may assert as an affirmative defense that the challenged employment decision was "based on reason able factors other than age." 29 U.S.C. 623(f)(1). In Meacham, this Court held that the burden of persuasion for this defense lies with the employer. 128 S. Ct. at 2400. In doing so, the Court noted that the "business necessity" defense that applies in the Title VII context "should have no place in ADEA disparate-impact cases." Id. at 2404. According to petitioners, the judgment be low was inconsistent with Meacham because the court of appeals "erroneously affirmed the district court's place ment of the burden to prove 'business necessity' on the Petitioners." Pet. 13.
Petitioners' suggested disposition-vacatur and re mand in light of Meacham, Pet. 11-is unnecessary be cause the court of appeals addressed the relevance of Meacham. Pet. App. 13a n.2. Petitioners' argument also lacks merit because the court of appeals properly regarded Meacham as irrelevant to petitioners' dispa rate impact claims. Ibid. To show discrimination on a disparate-impact theory under the ADEA, a plaintiff must first demonstrate that a facially neutral practice has a disproportionate impact on older workers. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977). If a plaintiff fails to carry that threshold burden, there is no need for the employer to raise an affirmative defense, and Meacham does not come into play.
Here, the court of appeals affirmed the district court's finding that petitioners had failed to demon strate "a significant disparate impact on older workers." Pet. App. 6a-7a. In particular, the court of appeals found no clear error in the district court's conclusion that petitioners' statistical evidence was flawed in two important respects. First, the analysis "failed to pro vide any meaningful evidence because it did not take into account the type of work performed by each em ployee." Id. at 7a. Second, it "failed to isolate and iden tify the specific employment practice responsible for the disparate impact." Ibid.
Moreover, the court of appeals went on to explain that even if the district court had erred by using the business-necessity-defense framework, the error would be harmless because the district court had correctly held that petitioners "failed to establish a prima facie case." Pet. App. 13a n.2. Accordingly, there is no basis for peti tioners' assertion that the court of appeals did not ac count for Meacham.
2. Petitioners also contend (Pet. 13-17) that the court of appeals erroneously required them to establish their disparate-treatment claim through only direct evidence. That is incorrect.
Before the lower courts, petitioners indicated that their disparate-treatment claim rested on a "mixed-mo tive" theory. In a mixed-motive case, a plaintiff need only show that discrimination "played a motivating part in an employment decision," even if there were also le gitimate considerations for the decision. Price Water house v. Hopkins, 490 U.S. 228, 244 (1989) (plurality opinion). The burden then shifts to the employer, which "may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed [discrimination] to play such a role." Id. at 244- 245 (footnote omitted).
This Court has held that a Title VII plaintiff may establish a mixed-motive claim by either direct or cir cumstantial evidence, see Desert Palace, Inc. v. Costa, 539 U.S. 90, 92 (2003), and it is currently considering whether the same rule should apply in the ADEA con text, see Gross v. FBL Fin. Group, Inc., No. 08-441 (ar gued Mar. 31, 2009). The government, in its amicus brief in Gross, argued that the ADEA should be inter preted in line with Title VII. See U.S. Amicus Br. at 20- 25, Gross v. FBL Fin. Group, Inc., No. 08-441 (Feb. 2, 2009). The Secretary thus agrees with petitioners that they were not limited to direct evidence in establishing their mixed-motive case.
Contrary to petitioners' suggestion, however, the court of appeals committed no legal error on this issue, and the Court's expected decision in Gross has no bear ing on this case. The court below correctly recognized that, under mixed-motive analysis, the burden would shift to the employer only after the plaintiff has shown that "a protected characteristic was a motivating factor in the employment action." Pet. App. 6a (internal quota tion marks omitted); see Desert Palace, 539 U.S. at 100- 101. Because the district court, after a lengthy bench trial, found no evidence-direct or circumstantial-that age was a factor at all in any of the decisions affecting petitioners in the RIF, the court of appeals correctly determined that there was no reason to shift the burden to the agency. Pet. App. 6a.
Petitioners' real dispute is with the court of appeals' factual conclusion. They allege that "evidence contained in the district court findings" would have "support[ed] a finding of age discrimination." Pet. 17. But the court of appeals was not obligated to accept that reading of the record; it only had to conclude that the district court's finding was not clearly erroneous, Pet. App. 6a. And in any event, the district court's finding of no dis crimination is borne out by the record. Indeed, as the district court noted, the very best evidence of discrimi nation that petitioners could muster related to isolated incidents by people who "did not play any role in decid ing whether any of the Plaintiffs would be separated during the RIF." Id. at 61a.
Judge Reinhardt asserted in dissent that, even in the absence of any evidence that the people involved in the RIF acted out of discriminatory animus, petitioners were entitled to judgment as a matter of law because the evidence demonstrated a "culture of discrimination." Pet. App. 14a. Although petitioners quote that dissent (Pet. 15-16), even they do not urge such a sweeping rule. Instead they suggest that the agency's discriminatory culture, coupled with alleged circumstantial evidence of discrimination in the "implement[ation]" of the RIF, was sufficient to shift the burden to the agency. Pet. 16-17. The district court, however, as the trier of fact, was enti tled to make its own determination as to whether the RIF decisions here were discriminatory, and the court of appeals properly regarded the district court's find ings as not clearly erroneous. Pet. App. 6a. The fact- bound nature of petitioners' argument thus warrants no further review by this Court.
3. Petitioners also argue (Pet. 18-20) that their non- discrimination CSRA claims should have been reviewed de novo by the district court. That is incorrect.
On review of a "mixed case" of discrimination and nondiscrimination claims coming from the MSPB, a dis trict court must apply a bifurcated standard of review. For the nondiscrimination claims, it must apply deferen tial review of the administrative record. 5 U.S.C. 7703(c). For the discrimination claims, it must apply de novo review. Ibid.
The district court in this case followed that scheme. It reviewed petitioners' nondiscrimination claims defer entially and rejected them on summary judgment. App., infra, 28a-49a. It then held a bench trial on petitioners' allegations of discrimination. After issuing its own fact findings, it rejected those claims. Pet. App. 16a-66a.
Petitioners' contention-that the district court should also have applied de novo review to their non- discrimination claims, Pet. 19-20-is foreclosed by plain statutory language. Section 7703(b)(2) identifies three types of discriminatory claims that may be brought be fore the MSPB: those arising from Title VII, the ADEA, and the Fair Labor Standards Act. 5 U.S.C. 7703(b)(2). Section 7703(c) then provides that only those claims are "subject to trial de novo by the reviewing court." 5 U.S.C. 7703(c). Any other claims, such as petitioners' nondiscrimination claims here, must be reviewed defer entially. Ibid.
Petitioners, citing several courts of appeals decisions, suggest that "'mixed cases' involving discrimination as well as non-discrimination * * * are not bifurcated" on review. Pet. 20-21. Those cases, however, hold only that a district court may exercise jurisdiction over an entire "mixed case." See, e.g., Hayes v. United States GPO, 684 F.2d 137, 140-141 (D.C. Cir. 1982). But they do not alter the bifurcated nature of review. See id. at 141 (stating that an employee "may bring his entire mixed case before the district court for review de novo of the discrimination claim, and review on the record of his nondiscrimination claim").
The petition for a writ of certiorari should be denied.
Assistant Attorney General
MARLEIGH D. DOVER
SARANG VIJAY DAMLE
1 Petitioners also may have failed to perfect their appeal to the court of appeals. The district court entered a final judgment on September 30, 2004. Under Fed. R. App. P. 4(a)(1)(B), petitioners were required to file a notice of appeal within sixty days, by November 29, 2004. But the district court docket indicates that petitioners filed the notice of appeal one day late, on November 30, 2004. The Ninth Circuit Appel late Commissioner issued a report and recommendation concluding that petitioners' notice of appeal had been timely received, though in the wrong division of the district court. The government objected to the report and recommendation on the ground that petitioners had failed to provide tangible proof of any timely filing. The court of appeals, however, never resolved the dispute: it did not adopt the report of the Appellate Commissioner or address the issue of appellate jurisdiction in its opinion.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
No. C 98-2094 CW
DAVID P. ADAM, ET AL., PLAINTIFFS
GAIL A. NORTON, SECRETARY, U.S. DEPARTMENT
OF INTERIOR, DEFENDANT
[Filed: May 31, 2002]
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Defendant Gail Norton moves for summary judgment on Plaintiffs' claims that their termination from employ ment with the United States Geological Survey (USGS) violated the Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act (Title VII). Plaintiffs oppose the motion. The issue presented by this motion is whether there is sufficient evidence in the record to establish a disputed question of fact as to whether Defendant designed and implemented the Octo ber, 1995 reduction in force (RIF) in a manner that dis criminated on the basis of age, sex, national origin, and/ or veteran status. The matter was heard on May 10,
2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court grants the motion in part and denies it in part (Docket #142).
On October 15, 1995, the USGS reduced its work force by thirty-seven percent, resulting in the separa tion, retirement or transfer of 541 USGS employees, the demotion of 119 more, and the reassignment of 124. Dec laration of Mary Dryovage (Dryovage Dec.), Ex. F. Six teen of the individual Plaintiffs in this action were sepa rated from service and the seventeenth Plaintiff was demoted as part of the October 15 RIF.
Each of the Plaintiffs litigated the adverse employ ment action taken against them in a consolidated pro ceeding before the Merit Systems Protection Board (MSPB). After a ninety-one day hearing, the Adminis trative Law Judge (ALJ) upheld the separation of the Plaintiffs against claims that 1) the RIF violated the Civil Service Reform Act (CSRA); 2) the RIF regula tions were applied improperly to the individual Plain tiffs; and 3) Defendant unlawfully discriminated against Plaintiffs based on age and on age in combination with other protected characteristics. The MSPB decision was appealed to this Court. On January 27, 2000, Defendant moved for summary adjudication of the first two claims decided by the ALJ-whether Defendant's implementa tion of the RIF and separation of Plaintiffs violated the CSRA.
On May 17, 2001, the Court affirmed the decision of the ALJ, holding that the ALJ's conclusions were sup ported by substantial evidence and were not "arbitrary and capricious." See "Order Granting Defendant's Mo tion for Partial Summary Judgment, Denying Plaintiffs' Rule 56(f) Request, and Denying Motions to strike," (Partial Summary Judgments, Order) at 6, 31.
Defendant now moves for summary judgment on Plaintiffs' remaining claim for discrimination. As the Court noted in its previous order, "MSPB decisions on discrimination issues are reviewed de novo." Partial Summary Judgment Order at 6 (citing 5 U.S.C. § 7703 (c) and Sloan v. West, 140 F.3d 1255, 1260 (9th Cir. 1998)).
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non- moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evi dence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of sum mary judgment are those which, under applicable sub stantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may dis charge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving par ty support its motion with evidence negating the non- moving party's claim. Id.; see also Lujan v. Nat'l Wild life Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving par ty's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admis sible discovery material, to show that the dispute ex ists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immate rial. Celotex, 477 U.S. at 323.
Plaintiffs argue that they have raised disputed ques tions of material fact sufficient to withstand summary judgment under either a disparate treatment or a dispa rate impact discrimination theory. The distinction be tween these theories of discrimination is well estab lished.
Disparate treatment is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion or other protected charac teristics. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment. Claims that stress disparate impact by contrast involve em ployment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discrimi natory motive is not required under a disparate- impact theory.
Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993) (citing Teamsters v. United States, 431 U.S. 324, 335- 336, n.15 (1977)).
A. Disparate Treatment
1. Legal Standard
"The burden on summary judgment of a plaintiff as serting disparate treatment under Title VII [or the ADEA] is . . . to establish a prima facie case of dis crimination and, if the employer articulates a legitimate, nondiscriminatory reason for its actions, to raise a genu ine factual issue as to whether the articulated reason was pretextual." Washington v. Garrett, 10 F.3d 1421, 1433 (9th Cir. 1993); Sischo-Nownejad v. Merced Com munity College, 934 F.2d 1104, 1199-10 & n.7 (9th Cir. 1991) (citing McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
Within this framework, a plaintiff may establish a prima facie case of discrimination with circumstantial evidence: a plaintiff must show that he or she is a mem ber of a protected class; that he or she was qualified for the position he or she held or sought; that he or she was subjected to an adverse employment decision; and that he or she was replaced by someone who was not a mem ber of the protected class or that the circumstances of the decision otherwise raised an inference of discrimina tion. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (citing McDonnell Douglas). Once the plaintiff establishes a prima facie case, a presumption of discriminatory intent arises. Id. To overcome this pre sumption, the defendant must come forward with a legit imate, nondiscriminatory reason for the employment decision. Id. at 506-07. I f the defendant provides that explanation, the presumption disappears. See id. at 511; Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
In response to the defendant's offer of a nondiscrimi natory reason, the plaintiff must produce either "spe cific, substantial evidence of pretext, Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983), or some "direct evidence of discriminatory motive." Godwin v. Hunt, Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998).
If, in order to survive summary judgment, the plain tiff puts forward evidence of pretext, that evidence must be sufficient to raise a genuine issue of material fact as to whether the reason the employer articulated is a pre text for discrimination. The plaintiff may rely on the same evidence used to establish a prima facie case or put forth additional evidence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000) ; Wallis, 26 F.3d at 892. "[I]n deciding whether an issue of fact has been created about the credibility of the employer's nondis criminatory reasons, the district court must look at the evidence supporting the prima facie case, as well as the other evidence offered by the plaintiff to rebut the em ployer's offered reasons. And, in those cases where the prima facie case consists of no more than the minimum necessary to create a presumption of discrimination un der McDonnell Douglas, plaintiff has failed to raise a triable issue of fact." Wallis, 26 F.3d at 890. "[T]he plaintiff 'must tender a genuine issue of material fact as to pretext in order to avoid summary judgment.'" (quot ing Steckl, 703 F.2d at 393). The factfinder's disbelief of the defendant's proffered reason, along with the ele ments of the prima facie case, may "suffice to show in tentional discrimination." Hicks, 509 U.S. at 511.
If, in response to the defendant's showing of a legiti mate, nondiscriminatory reason, the plaintiff puts forth evidence of discriminatory motive, "the plaintiff need produce very little evidence . . . to raise a genuine is sue of fact." Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). For this reason, the Ninth Circuit has instructed that district courts must be cautious in grant ing summary judgment for employers on discrimination claims. See Lam, 40 F.3d at 1564 (" [w]e require very little evidence to survive summary judgment' in a dis crimination case, 'because the ultimate question is one that can only be resolved through a "searching inquiry' -one that is most appropriately conducted by the fact finder'") (quoting Sischo-Nownejad, 934 F.2d at 1111).
Plaintiffs argue that the McDonnell Douglas burden shifting approach should not apply here for two reasons. First, Plaintiff notes that "the McDonnell Douglas test is inapplicable where the Plaintiff presents direct evi dence of discrimination." Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). Plaintiffs contends that because they have presented evidence of remarks that could be construed as discriminatory, the analytic framework applicable to mixed-motive cases should ap ply here. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In other words, the evidentiary burden should shift to Defendant to show that it would have taken the same adverse employment action regardless of discriminatory animus.
The Ninth Circuit has made clear, however, that the McDonnell Douglas framework is applicable where the plaintiff has presented some comments from the em ployer that could be construed as discriminatory. See Godwin, 150 F.3d at 1221 (sales manager's comment that "he did not want to deal with another female" suffi cient to satisfy the plaintiff's evidentiary burden at the pretext stage of the McDonnell Douglas analysis); Ber gene v. Salt River Project Agr. Imp. and Power Dist., 272 F.3d 1136, 1142 (9th Cir. 2001) ("small amount of direct evidence is necessary in order to create a genuine issue of material fact as to pretext"); Chuang v. Univer sity of California Davis. Bd. of Trustees, 225 F.3d 1115, 1128 (9th Cir. 2000) (plaintiff's direct evidence of dis crimination analyzed under pretext prong of McDonnell Douglas test).
The issue presented is whether Plaintiffs have pre sented sufficient evidence to raise a jury question on whether discriminatory animus underlay the facially neutral evaluation criteria. The burden-shifting scheme of McDonnell Douglas is the appropriate framework in which to analyze this question.
In addition, Plaintiffs appear to argue that under Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133 (2000) summary judgment must be denied once the plaintiff establishes a prima facie case. Reeves, howev er, did not modify the burden shifting standard previ ously articulated by the Ninth Circuit and summarized above. The plaintiff must establish a prima facie case and, if the employer rebuts that case by articulating a legitimate, non-discriminatory reason, the plaintiff must present direct evidence of discriminatory motive or spe cific circumstantial evidence of pretext. See Godwin, 150 F.3d at 1220-1221; Coleman, 232 F.3d at 1284.
2. Prima Facie Case
To make out a prima facie case of discrimination, Plaintiffs must show that they were members of a pro tected class who were satisfactorily performing their jobs, that they suffered adverse employment actions, and that the circumstances of the adverse action raise an inference of discrimination.
Defendant argues that Plaintiffs Hirshorn and Tur rin have not established a prima facie case because they were not members of the protected class. Specifically, Plaintiffs Hirshorn and Turrin were thirty-nine years old when they were separated pursuant to the RIF on October 15, 1995. Polstorff v. Fletcher, 452 F. Supp. 17, 23 (D.C. Ala. 1978) ("The Age Discrimination in Employ ment Act provides protection for persons between the ages of 40 and 65."); Declaration of Mary Beth Uitti (Uitti Dec.), Exs. A, B. Plaintiffs contend that although Hirshorn and Turrin were not in the protected class at the time of the RIF, they entered the protected class shortly thereafter and were eligible for positions filled after the RIF. Plaintiffs contend that both the initial RIF and the refusal to allow separated employees to "bump and retreat" into other positions violated the ADEA. Plaintiffs have not cited any evidende that De fendant refused to consider Plaintiffs Hirshorn and Turrin for qualifying jobs that became available after the RIF. See Rose v. Wells Fargo & Co., 902 F.2d 1417, 1422 (9th Cir. 1990) (refusal to transfer employee rather than layoff raises inference of discrimination only upon showing of differential treatment of employee outside the class). Consequently, there is no evidence of dis criminatory treatment of Hirshorn and Turrin after they became members of the protected class. They have not, therefore, satisfied their burden of establishing a prima facie case.
Defendant does not dispute that the other fifteen Plaintiffs have established a prima facie case of age dis crimination.
3. Legitimate Non-Discriminatory Reason
"A RIF is a legitimate nondiscriminatory reason for laying off an employee." Coleman, 232 F.3d at 1282; see also Gianacualas v. Transworld Airlines, Inc., 761 F.2d 1391, 1395 (9th Cir. 1985) (general reduction in work force as result of economic downturn constitutes "good cause" to terminate employment).
As detained in the Court's previous order, Defendant has presented evidence that the RIF was implemented for legitimate, budgetary reasons. See Partial Summary Judgment Order at 3, 7-9; see also Cross v. Dept. of Transp., 127 F.3d 1443, 1447 (Fed. Cir. 1997) (agency may undertake cost cutting measures in anticipation of future cuts in funding). Defendant has also presented evidence that the RIF was designed and implemented without discriminatory intent and that it compiled with governing procedures. See Partial Summary Judgment Order at 10-12 (citing Administrative Record (AR) 919, 15292-93, 17792, 17380). This evidence satisfies Defen dant's burden of showing a legitimate nondiscriminatory reason for the adverse employment actions. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 918 (9th Cir. 1996) (employer satisfied "burden by offering some evi dence that a [sic] downturn in work required some lay offs, and that it used a combination of factors, including performance, technical qualifications, and seniority, in deciding whom to discharge").
At this point in the McDonnell Douglas analysis, the presumption of discriminatory intent "drops out of the picture." Wallis, 26 F.3d at 889 (quoting Hicks, 509 U.S. at 511). The burden shifts back [sic] Plaintiffs to "pro duce enough evidence to allow a reasonable factfinder to conclude" that Defendant's proffered explanation is false or that the true reason for the discharge was dis criminatory. Nidds, 113 F.3d at 918.
4. Discriminatory Intent/Pretext
Plaintiffs may satisfy their burden by presenting either evidence of Defendant's discriminatory animus or evidence that the RIF was not legitimate or nondiscrim inatory. Plaintiffs have presented [sic] evidence that falls into both categories. First, Plaintiffs have prof fered comments from the director of the USGS and from those involved in implementing the RIF from which Plaintiffs contend a jury could infer discriminatory ani mus. In addition, Plaintiffs contend that the RIF was implemented in a manner biased against employees over the age of forty.
a) Discriminatory Intent
Dr. Gordon Eaton became the Director of USGS in early 1994 at the age of sixty-six. Prior to his appoint ment to this position, his supervisor, former Secretary of the Interior Bruce Babbit, expressed to Dr. Eaton his concerns about the direction of the USGS. According to Dr. Eaton, Secretary Babbit believed that the USGS had been inadequately "responsive to change in terms of na tional need [and] societal concerns." Dryovage Dec., Ex. K 11:8-10. Secretary Babbit was also concerned that "there had been inadequate development of . . . lead ership among the young people" in the organization. Id. at 11:14-16. Dr. Eaton set out to address these con cerns. Id. at 11:25-12:2.
Within two weeks of being appointed, Dr. Eaton vis ited the three main USGS centers, located in Menlo Park, California; Denver, Colorado; and Reston, Vir ginia. At each visit, he gave a presentation to the staff that lasted between forty-five minutes and one hour and was followed by a question and answer period. Prior to the Menlo Park meeting, Dr. Eaton was given a poster, which he described to the Menlo Park staff during his presentation. The poster showed a bewildered looking dinosaur with the caption, "Which is scarier, change or extinction." Id. at 70:10-15. In his second meeting, in Denver, Dr. Eaton again described the poster to the staff and, in addition, made the following comment in reference to the challenges facing the USGS:
The transition team . . . visited in a number of dif ferent places and along the way they heard some things from members of the Geologic Division which sounded to them like intransigency and an unwilling ness to change even an unwillingness in fact to em brace it, and while that clearly is not true for the whole Geologic Division I would have to argue that some of the people that I know and love the most that are of my generation within the organization may have been the very ones that said the things that lead them to pose the question, "What is the difference between Jurassic Park and the Geologic Division in the Geological Survey?" And you've probably heard the answer. The answer is, "One is an amusement park filled with dinosaurs and the other is a movie." So, those of you in my generation in the Geologic Division, take that.
(emphasis added). In Reston, Dr. Eaton repeated the "Jurassic Park" joke. Plaintiffs contend that Dr. Ea ton's "dinosaur comments" indicate stereotyping of old er employees as resistant to change and express Dr. Ea ton's desire to replace these older employees with youn ger employees.
In addition, in March, 1995, at the beginning of the RIF process, all employees of the geologic division were advised to attend a briefing "about the coming reduc tions in force." Id., Ex. E. The notice announcing the briefing included a one-panel cartoon of a dog, holding a piece of paper and speaking to a larger dog while an obviously older dog sits in the corner reading a newspa per. The caption on the cartoon reads, "You gotta help me, Mom. . . . This assignment is due tomorrow and Gramps doesn't understand the new tricks." Id. This cartoon appears to be a reference to the cliche, "you can't teach an old dog new tricks." Plaintiffs contend that it is susceptible to the inference that those imple menting the RIF would be biased against older employ ees because of their perceived reluctance to adjust to changes in the workplace.
Last, as evidence that the RIF was implemented with discriminatory intent, Plaintiffs proffer a memorandum outlining the "Ground Rules for Reduction in Force" written by Chief Geologist P. Patrick Leahy and distrib uted on June 19, 1995. Id. Ex. E. In this memo, Leahy details the policies he established within the statutory and regulatory context of an RIF. With respect to as signment rights (bumping rights), Leahy decided that no assignment rights would be permitted "beyond those required by law and regulation." Id. Ex. E. at 2. Leahy recognized that he had the discretion to grant assign ment rights in a manner "that would expand bumping rights for most Division employees." Id., at 4. He chose not to adopt this position, in part, because the "[e]mploy ees with least seniority would be most vulnerable to downgrading or separation. As a result, the remaining staff would include most of our highly experienced se nior scientists, but many of the younger more recently trained staff would be lost." Id. Therefore, while "ac knowledging that [the chosen bumping policy] denies senior staff an advantage we could have granted them," Leahy limited those employees' bumping rights. Id.
Defendant argues that Plaintiffs' evidence amounts to nothing more than "stray remarks" insufficient to raise an inference of discriminatory animus. See Cole man, 232 F.3d at 1284 (question of fact as to whether one manager described individual as "young and pro motable" not sufficient to raise a material dispute with respect to whether employer's nondiscriminatory ratio nale was a pretext). In this context, Defendant's argu ment is unpersuasive. Plaintiffs have presented more than a single isolated comment "uttered in an ambiva lent manner and not tied directly to the termination." Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir. 1993). Rather, they have presented sufficient evidence from which a factfinder could conclude that decision-makers in the agency, and particularly those involved in formu lating and implementing the RIF, articulated a prohib ited, discriminatory animus. "When the plaintiff offers direct evidence of discriminatory motive, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial." Godwin, 150 F.3d at 1221; see also Lindahl, 930 F.2d at 1438 ("plain tiff need produce very little evidence of discriminatory motive to raise a genuine issue of fact").1
The evidence detailed above satisifes Plaintiffs' bur den under McDonnell Douglas. They have presented sufficient evidence to create a material dispute concern ing Defendant's motivation in taking the adverse em ployment action.
Because Plaintiffs have satisfied their burden at this stage of the McDonnell Douglas analysis by presenting sufficient evidence of discriminatory motive, they need not present "specific, substantial evidence" of pretext as well. See supra Nidds, 113 F.3d at 918 (to withstand summary judgment, the plaintiff "must produce enough evidence to allow a reasonable factfinder to conclude either: (a) that the alleged reason for Nidds' discharge was false or (b) that the true reason for his discharge was a discriminatory one"). Nevertheless, Plaintiffs also argue that Defendant's contention that the RIF was legitimate and nondiscriminatory is not worthy of cred ence.
In arguing that the RIF was a pretext for discrimina tion, Plaintiffs have focused specifically on the cases of Csejtey, Ford, Grantz, and Wrucke. The essence of the arguments made by these Plaintiffs is that they were qualified for their positions, and their separation from employment during the RIF was unjustified and consti tutes evidence of pretext. These claims are not suffi cient to establish pretext. See Casillas v. Navy, 735 F.2d 338 (9th Cir. 1984) (Title VII does not ensure that the best candidate is chosen, only that the selection pro cess is free of discrimination).
Plaintiff Csejtey also contends that although Defen dant claims the project he was working on was termi nated, in fact, an identical project was implemented dur ing the RIF. However, the evidence in the administra tive record indicates that the new project was dissimilar and the location of the project was moved to Alaska. AR 21314-21361.
Plaintiff Wrucke contends that Defendant placed him in the wrong "competitive level code" (CLC) and that this erroneous CLC led to this separation. However, the record indicates that the CLC sought by Wrucke was dissimilar to his current duties.
B. Disparate Impact
1. Legal Standard
In order to state a prima facie disparate impact claim, plaintiffs must show "that a facillay neutral em ployment practice has a 'significantly discrimina tory' impact upon a protected class." See Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1076 (9th Cir. 1986) (citing Connecticut v. Teal, 457 U.S. 440, 446 (1982)). The prima facie case has three elements. The plaintiff must 1) show a significant disparate impact on a protected class or group, 2) identify the specific em ployment practices or selection criteria at issue, and 3) show that the disparity is linked to the challenged policy or practice. Hemmings v. Tidyman's Inc., -F.3d-, 2002 WL 537689 at *11 (9th Cir. 2002) (citing Antonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477, 1482 (9th Cir. 1987)). If the employee establishes a prima facie case of disparate impact, the burden shifts to the employer to prove that the challenged practice is job- related for the position an consistent with business ne cessity. If the employer meets its burden of showing "business necessity," the burden shifts back to the em ployee to show that the same goal could be accomplished with less adverse impact upon the protected class. Coleman, 232 F.3d at 1291.
2. Statistical Evidence
Defendant contends that Plaintiffs have failed to sat isfy two of the three criteria necessary to establish their prima facie case.
First, Defendant argues that Plaintiffs failed to iden tify in their pleading the "specific, identified employ ment practice or selection criteria" responsible for the disparty. Stout v. Potter, 276 F.3d 1118, 1121 (9th Cir. 2002). However, as the Supreme Court recently held in the related context of disparate treatment, the burden of establishing a prima facie case "is an evidentiary stan dard, not a pleading requirement." Swierkiewicz v. Soreman, 122 S. Ct. 992, 997 (2002). Title VII and ADEA violations are sufficiently plead if the complaint alleges that the plaintiff was "terminated . . . on ac count of his age, detail[s] the events leading to the ter mination, provide[s] relevant dates, and include[s] the ages . . . of at least some of the relevant persons in volved. . . . " Id. at 999.
This standard was met in the present case, and the relevant question at this stage in the proceeding is whether Plaintiffs have submitted sufficient evidence that a specific employment practice was responsible for the alleged disparate impact on the protected class. Plaintiffs have sufficiently identified the policies and practices within the RIF that they contend had a dispa rate impact. These policies include, but are not limited to, the narrowing of competitive level codes, the limiting of assignment rights, and the use of "add back" lists. Based on this evidence, the Court concludes that Plain tiffs have satisfied the second requirement of a prima facie case: they have identified specific employment practices that they claim have had a disparate impact on the protected class. The statistical disparity, moreover, is significant enough to raise an inference of causation. AR 11959, 11964; Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002) (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-96 (1988)).
Defendant also argues that Plaintiffs have not satis fied their prima facie case because the statistical evi dence they presented is so flawed that is it insufficient to establish a disparate impact on the protected class. Specifically, Defendant contends that Plaintiffs' statisti cal analysis failed to account for several relevant fac tors.2 In support of this contention, Defendant relies on Coleman v. Quaker Oats Company, where the plaintiffs presented statistical evidence suggesting that twice the percentage of employees over the age of forty were laid off during a RIF as those under the age of forty. 232 F.3d at 1281. The court, however, found the plaintiffs' statistics unreliable because they did "not take into ac count any variable other than age." Id.
In this case, Defendant argues that Plaintiffs' statis tical analysis is equally unreliable because it failed to consider the factors of grades, length of service and per formance. However, Defendant "cannot defeat [a statis tical] showing of discrimination simply by pointing out possible flaws in [the] data. Rather, [the defendant] had to produce credible evidence that curing the alleged flaws would also cure the statistical disparity." Equal Employment Opportunity Comm'n v. Gen. Tel. Co. of Northwest, Inc., 885 F.2d 575, 582-83 (9th Cir. 1989); see also Coleman, 232 F.3d at 1281 (when other variables were considered the results were "far less dramatic" and "not even significant"). Defendant has not produced such evidence in support of this motion. Instead, Defen dant relies on the conclusions reached by the ALJ at the MSPB hearing. The ALJ credited the testimony of De fendant's expert over that of Plaintiffs'. The ALJ, how ever, did not find that Plaintiffs' statistical showing was insufficient as a matter of law-the showing required of Defendant to succeed on this motion for summary judg ment. Rather, after reviewing the reports and testi mony of both Plaintiffs' and Defendants's experts, the ALJ concluded, "I find the [Plaintiffs'] statistical evi dence less persuasive than the testimonial and statistical evidence provided by the agency." AR 17813.
To satisfy the prima facie case in a disparate impact case, "the law does not require the near-impossible stan dard of eliminating all possible nondiscriminatory fac tors." Hemmings, 2002 WL 537689 at *9. Rather, so long as Plaintiffs' analysis is not "so incomplete as to be inadmissible as irrelevant," see Bazemore v. Friday, 478 U.S. 385, 400 n.10 (1986), complaints about the" inade quacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility." Hemmings, 2002 WL 537689 at *9. Defendant has not shown that the inclusion of factors allegedly omitted by Plaintiff's statistical expert would eliminate the age-based statistical disparity. Conse quently, Plaintiffs' and Defendant's conflicting statisti cal evidence must be presented to the factfinder.
Defendant also contends that it has presented evi dence of a "business necessity" that is unrebutted by Plaintiff. Specifically, Defendant contends that "the goals of saving money and meeting the changed mission of the agency could [not] have been met by any means other than by the RIF." Reply Brief in Support of De fendant's Motion for Summary Judgment at 6. How ever, Defendant has failed to satisfy its burden of show ing why the means used in the RIF were necessary, not simply that the RIF was a necessity.
C. Individual Claims
In addition to the age discrimination claim common to all Plaintiffs, several Plaintiffs also bring claims of discrimination based on factors other than age. Plaintiff Wrucke alleges discrimination on the basis of his vet eran status. Plaintiffs Adam, Lewis, Lindh, and Turrin allege retaliation under Title VII. Plaintiffs Csejtey, Iyer, and King allege national origin discrimination. And, Plaintiff David alleges discrimination on the basis of sex.
The Court grants Defendant's motion for summary judgment on Plaintiff Wrucke's veteran's rights claim because veterans are not a protected class under Title VII or the ADEA.
The Court grants Defendant's motion for summary judgment with respect to Plaintiffs Lewis, Lindh, and Turrin's retaliation claims. In order to state a claim for retaliation under Title VII or the ADEA, the plaintiff must allege that he or she engaged in activity protected by Title VII or the ADEA. Plaintiffs Lewis, Lindh and Turrin contend that they were retaliated against for whistle blower complaints unrelated to Defendant's al leged violations of Title VII or the ADEA. Consequent ly, their claims for retaliation are not viable as a matter of law.
Plaintiff Adam contends that he was laid off during the October 15 RIF, in part, as reprisal for a letter he had written in 1985 supporting a grievance filed by a female co-worker. Plaintiff Adam has failed to establish a causal connection between the 1985 letter and the 1995 separation. He therefore has not established a prima facie case of retaliation. Tarin v. County of Los An geles, 123 F.3d 1259, 1264 (9th Cir. 1997) (prima facie case of retaliation requires a showing of a causal link between the protected activity and the employer's ad verse action).
Defendant's motion for summary judgment is grant ed with respect to Plaintiffs Csejtey, Iyer, and King's national origin discrimination claims. Although Plain tiffs have established a prima facie case, they have not come forward with evidence to show that the RIF was a pretext for national origin discrimination. The evidence supporting Plaintiffs' age discrimination claims is not probative of national origin discrimination and Plaintiffs have not presented evidence from which a trier of fact could choose to disbelieve Defendant's legitimate, non- discriminatory explanation for their separation. For the same reason, Defendant is entitled to summary judg ment on Plaintiff Davis' sex discrimination claim.
For the foregoing reasons, Defendant's motion for summary judgment is granted in part and denied in part (Docket #142). There is a disputed question of material fact with respect to whether Defendant intentionally discriminated against employees over the age of forty when it designed and implemented the October 15, 1995 RIF. There is also a dispute of material fact with re spect to whether the RIF had an impermissible dispa rate impact on a protected class of employees over the age of forty.
Summary judgment in [sic] granted with respect to Plaintiffs Hirshorn and Turrin's age discrimination claims because they were not in the protected class at the time of the RIF. Summary judgment is also granted on Plaintiffs Lewis, Lindh, Turrin and Adam's retalia tion claims, Plaintiff Wrucke's veteran's rights claim, Plaintiff Davis' sex discrimination claim and Plaintiffs Csejtey, Iyer and King's national origin discrimination claims.
Dated: [May 31, 2002]
/s/ CLAUDIA WILKEN
United States District Judge
Copies mailed to counsel
as noted on the following page
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
DAVID P. ADAM, LANDFORD H. ADAMI, JAMES P. CALZIA, BELA CSEJTEY, JR., ALICE S. DAVIS, JAMES L. DRINKWATER, ARTHUR GRANTZ, BARRY F. HIRSHORN, H. MAHADEVA IYER, CHIRON-YU KING, STEPHEN L. LEWIS, ALLAN G. LINDH, DENNIS M. MANN, A. THOMAS OVENSHINE, BRENT D. TURRIN, CHESTER T. WRUCKE, PLAINTIFFS
GALE A. NORTON, SECRETARY, U.S. DEPARTMENT OF INTERIOR, DEFENDANT
[May 17, 2001]
ORDER GRANTING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING
PLAINTIFF'S RULE 56(F) REQUEST, AND DENYING MOTIONS TO STRIKE
Defendant Gale A. Norton, Secretary of the United States Department of Interior, moves for partial sum mary judgment on Plaintiffs' Civil Service Reform Act (CSRA) claims and moves to dismiss Plaintiffs Hirshorn and Turrin's claims. Plaintiffs oppose this motion. Be fore the Court is Plaintiffs' complaint for judicial review of the decision of the Merit Systems Protection Board (MSPB) that they were properly separated from the Geological Division (Division) of the United States De partment of the Interior (Agency) and that their posi tions were properly downgraded as a result of the Agen cy's 1995 reduction-in-force (RIF).
On April 23, 1999, Defendant filed a motion for par tial summary judgment on Plaintiff Adam's CSRA claims, and Plaintiff Adam filed a cross-motion for par tial summary judgment. Rather than rule on these mo tions, the Court ordered Defendant to file a motion for summary judgment raising "all claims" that she believed were not subject to a genuine dispute of material fact and about which the other side "could, with due dili gence, have completed sufficient discovery to oppose by the date the opposition is due." In compliance with this order, on January 27, 2000, Defendant filed a motion for partial summary judgment on all of the Plaintiffs' CSRA claims. Defendant also moved to dismiss all of Plaintiffs Hirshorn and Turrin's claims. On May 12, 2000, Plain tiffs opposed this motion, although they did not file a cross-motion for partial summary judgment. Plaintiffs also requested relief pursuant to Federal Rule of Civil Procedure 56(f). Defendant filed a reply. Plaintiffs then filed a surreply, which was improper because they had not filed a cross-motion. However, rather than strike Plaintiffs' surreply, the Court allowed Defendant also to file a surreply. The parties also filed motions to strike various portions of the pleadings and declarations filed in support of and opposition to Defendant's January 27, 2000 motion for partial summary judgment.
The matter was heard on September 29, 2000. The Court has considered all papers filed in response to the briefing schedule set forth in the October 5, 1999 Order, including both parties' Motions To Strike and surreplies, and oral argument on motion. The Court GRANTS De fendant's Motion For Partial Summary Judgment, DE NIES Plaintiffs' Motion for Relief Pursuant to Rule 56(f), and DENIES the motions to strike filed by both parties. Further, the Court denies as moot the parties' earlier cross-motions for partial summary judgment, which were superseded by the present motion.
STATEMENT OF FACTS
I. General Background
In the mid-1980s, the Division began to have financial problems because its budgets did not keep pace with increasing inflationary costs. In 1991, after years of fi nancial difficulties with Congressional budget cuts and escalating costs, the Division received significantly less funding and its financial difficulties became more acute. The Division instituted measures to address the funding crisis, including a hiring freeze, termination of tempo rary appointments, offers of early retirement and buy outs. See Administrative Record (AR) at 15321. Despite these efforts, the Division continued to suffer financial difficulties. From 1992 to 1994, the Chief Geologist cir culated various memoranda within the Division about the need to reduce staffing. Ultimately, in October, 1995, the Division conducted a RIF in which 550 scien tists, approximately thirty-seven percent of its work force, including Plaintiffs, were separated from federal service or downgraded.3 As provided by 5 U.S.C. §§ 7702, 7703, in November, 1995, Plaintiffs sought re view with the MSPB of their separations.
II. The MSPB Decision
The MSPB hearing included ninety-one days of testi mony and generated 175 volumes of record. The MSPB Judge wrote separate opinions for each Plaintiff, a total of seventeen. Ultimately, the MSPB Judge found that the Division had bona fide financial and reorganizational reasons for the 1995 RIF. Furthermore, the MSPB Judge concluded that the RIF was carried out in accor dance with CSRA standards and that each Plaintiff was either properly separated from federal service or prop erly downgraded to another position.
During the MSPB review of their separation from federal service, Plaintiffs claimed that Defendant unlaw fully discriminated against them based on age, sex, na tional origin, and/or race, and/or retaliated against them for their opposition to unlawful discrimination, and violated their rights under the CSRA. Plaintiffs made identical claims challenging the validity of the 1995 RIF as a whole and made claims specific to their individual employment situations.
I. Motion For Partial Summary Judgment
A. Legal Standard For Summary Judgment
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non- moving party, the movant is clearly entitled to prevail as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Insur ance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evi dence, if supported by affidavits or other evidentiary material. See Celotex, 477 U.S. at 324; Eisenberq, 815 F.2d at 1289. The Court must draw all reasonable infer ences in favor of the party against whom summary judg ment is sought. See Matsushita Elec. Indus. Co. v. Ze nith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of sum mary judgment are those that, under applicable sub stantive law, may affect [sic] outcome of the case. The substantive law will identify which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Legal Standard for Review of MSPB Hearing
Employees or applicants for employment who are adversely affected by a final order or decision of the MSPB may obtain judicial review of the order in the United States Court of Appeals for the Federal Circuit. See 5 U.S.C. §§ 7702, 7703; 5 C.F.R. _ 1201.119 (1991) ; id. § 1201.120 (1998). Under 5 C.F.R. _ 1201.175, the district court has jurisdiction over requests for judicial review of cases involving claims of discrimination de scribed in 5 U.S.C. § 7702. This includes actions alleging discrimination prohibited by §§ 12 and 15 of the ADEA and Title VII of the Civil Rights Act of 1964. In addi tion, under §§ 7702 and 7703, the district court may re view MSPB decisions in "mixed cases," defined as cases in which the underlying adverse action is appealable to the MSPB and the discrimination described in § 7702 is alleged as a basis for the adverse action. Romain v. Shear, 799 F.2d 1416, 1421 (9th Cir. 1986); see Williams v. Department of Army, 715 F.2d 1485, 1486 & n.3 (Fed. Cir. 1983).
In deciding mixed cases, district courts must review the MSPB's determination of issues other than discrimi nation based on the administrative record, under a def erential standard of review. See 5 U.S.C. § 7703(c); Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1482 (Fed. Cir. 1998) ; Sloan v. West, 140 F.3d 1255, 1260 & n.16 (9th Cir. 1998). Pursuant to 5 U.S.C. § 7703(c), district courts must affirm the MSPB1s find ings regarding issues other than discrimination unless a review of the record reveals that those decisions are (1) arbitrary, capricious, an abuse of discretion, or oth erwise not in accordance with law, (2) made in violation of procedures required by law, rule or regulation, or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703 (c). MSPB decisions on discrimination issues are reviewed de novo. See 5 U.S.C. § 7703 (c) ; Sloan, 140 F.3d at 1260 and n.16; Morales v. Merit Systems Protec tion Board, 932 F.2d 800, 802 (9th Cir. 1991); Romain, 799 F.2d at 1421 (explaining the difference in judicial treatment of the two types of claims in mixed cases).
C. Plaintiffs' Common Claims
Plaintiffs assert that in order for this Court to adju dicate Defendant's motion for summary judgment on Plaintiffs' CSRA claim, the Court will be required to rule on Plaintiffs' discrimination claims. This is not the case. Plaintiffs have alleged a "mixed case," with allega tions of discrimination coupled with allegations of other wrongs. Therefore, the Court may properly consider Plaintiffs' claims of other wrongs based on the adminis trative record separately from Plaintiffs' discrimination claims, which the Court will review de novo. Thus, in this order, the Court will not consider any of Plaintiffs' discrimination claims, including Plaintiffs' claims that they were retaliated against for discriminatory reasons, and will rule only on Defendant's motion for summary judgment regarding whether the Division instituted the RIF and separated Plaintiffs in accordance with the CSRA.
Plaintiffs also assert that this Court should review de novo the MSPB Judge's decision on Plaintiffs' claims of wrongs other than discrimination. However, as ex plained above. Plaintiffs are mistaken.
1. Division's Financial Reasons for RIF
Plaintiffs allege that the Division's financial difficul ties were "bogus" and a "spurious reason" for the reor ganization and RIF because the Division's cost shifting and buyouts should have corrected its earlier financial difficulties.4 See Pl.s' First Amended Complaint, 9. Plaintiffs allege that the MSPB Judge failed to consider evidence of the Agency's financial healthiness in the 1996 fiscal year, including the facts that the Agency allo cated millions of dollars to contracts for equipment and/ or services, that many of the employees who were not separated in the 1995 RIF received performance awards at the end of the year, and that there was a financial surplus in the Agency's Capital Fund for the 1996 fiscal year. Plaintiffs claim that the witnesses who testified about the financial problems of the Division did not give credible testimony. Furthermore, Plaintiffs dispute De fendant's claim of financial difficulties that relate back to the 1995 RIF. Lastly, Plaintiffs allege the Division's executives knew that Congress was not going to de crease its budget significantly for fiscal year 1996 and they nonetheless conducted the RIF in order to separate certain people from federal service, including Plaintiffs.
The Code of Federal Regulations sets forth the stan dard for a federal agency to conduct a RIF. Pursuant to 5 C.F.R. § 351.201(a)(2), a federal agency may "release a competitive employee from his or her competitive level by . . . separation . . . when release is required be cause of . . . shortage of funds." 5 C.F.R. § 351.201(a) (2). The determination that a RIF is proper is "a matter of the agency's independent managerial discretion." Cross v. Department of Transportation, 127 F.3d 1443, 1447 (Fed. Cir. 1997). When conducting a RIF because of lack of funding, the agency need not wait until a shortage of funding exists but it may take the appropri ate action upon becoming aware of imminent legislation which will affect its funding. See id.
The MSPB Judge found that the Division conducted the 1995 RIF in response to ongoing financial difficul ties that were expected to further deteriorate. See AR 17788. The MSPB Judge reasonably relied on the Agen cy's financial documents pertaining to the Division and testimony of many of the Division's officials, including testimony by some Plaintiffs. Plaintiffs' claim that the MSPB Judge relied on witnesses who did not give credi ble testimony is unavailing. Credibility determinations made by the MSPB Judge are "virtually unreviewable." See Hambsch v. Dept. of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
The MSPB Judge considered that the Division had been having financial difficulties since the 1980s, that these problems became increasingly worse in the early 1990s, and that the Division had attempted to remedy its financial problems. Nevertheless, even after the 1994 buyout, the MSPB Judge noted that the Division found a RIF essential to its economic survival. See AR 15321- 23. Thus, the MSPB Judge reasonably concluded that there were bona fide financial reasons for the RIF. See AR 17788.
2. Procedures Used in the Reorganization
Chapter 5 Code of Federal Regulations Section 351.201(a)(l) provides,
Each agency is responsible for determining the cate gories within which positions are required, where they are located, and when they are to be filled, abol ished, or vacated. This includes determining when there is a surplus of employees at a particular loca tion in a particular line of work.
5 C.F.R. § 351.201(a)(1). Federal agencies hold the pow er to make determinations about the retention or elimi nation of positions within them. Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). When conducting a RIF, the federal agency establishes com petitive levels in which employees compete for retention by the agency in accordance with 5 C.F.R. § 342.5403(a), which provides,
(1) Each agency shall establish competitive levels consisting of all positions in a competitive area which are in the same grade (or occupational level) and classification series, and which are similar enough in duties, qualification requirements, pay schedules, and working conditions so that an agency may reas sign the incumbent of one position to any of the other positions in the level without undue interruption. (2) Competitive level determinations are based on each employee's official position not the employee's per sonal qualifications.
Plaintiffs allege that certain managerial positions were created as sham positions to protect some manag ers from being separated during the RIF, that the Divi sion improperly returned some managers to science or research positions, and that managers were able to re tain positions improperly without regard to program matic needs. Plaintiffs claim that the managers improp erly influenced the staffing plans. Plaintiffs also allege that the managers had improper influence over the sub ject matter experts (SMEs). The SMEs' role was to meet with personnel officials to determine the inter changeability of positions and to determine which em ployees would be assigned to the positions that the Divi sion planned to retain after the RIF. Plaintiffs claim that the SMEs were not qualified and that they improp erly destroyed their notes. Lastly, Plaintiffs allege that the Division improperly created competitive levels that were overly narrow in order to target certain individual scientists to be separated.
Defendant counters that the RIF was effectuated ac cording to proper procedures, as set forth in 5 C.F.R. § 351.201(a)(1). Defendant asserts that the Division devel oped and implemented its reorganization and RIF as follows: by developing the general priorities of the Divi sion, including developing five-year plans of its scientific goals, developing staffing plans in accordance with those priorities, reviewing all position descriptions to assess which, if any, were the best match for the identified needs, and setting up a multi-level review and oversight process. Defendant asserts that every abolished posi tion was discussed during the review process in an at tempt to place it with one of the Division's programs. Defendant also argues that although managers were involved in the development of staffing plans, reviewed changes made to position descriptions, and made recom mendations on which positions were retained, there is no evidence that managers exerted improper influence over the SMEs. Defendant argues that the SMEs were quali fied and were not required to retain their notes. Lastly, Defendant argues that the competitive levels were prop erly developed in accordance with 5 C.F.R. 351.403(a).
In considering the process the Division followed in developing its reorganization plan, the MSPB Judge noted that Division officials were given a directive from then-Secretary of the Interior Bruce Babbitt that "the Agency needed to change." AR 17790. The MSPB Judge found that the Administrative Record includes evidence that the Division reorganized in two ways- streamlining management organization and realignment of programs.
The MSPB Judge agreed that the Division developed its reorganization plan by determining the Division's general goals and missions, developing science plans for ten scientific programs, developing and implementing staffing plans, and utilizing the multi-level review pro cess. The Division's officials determined the general goals and missions of the Division by having SMEs and Division managers meet to consider them. Then the Division determined what scientific endeavors it would attempt to pursue in a five-year period. The Division prepared five-year plans which laid out its scientific goals. From these five-year plans, Program Councils were formed, which were comprised of the Program Co ordinator and Branch Managers. The Program Councils then developed generic staffing plans, consisting of the types of positions needed to execute the program, re viewed the position descriptions relevant to that pro gram, and determined which positions were the best match for the identified needs. The Division conducted two independent reviews of its staffing plans, one by the Division Program and Staffing Plan Review Committee and one by upper level management and program coor dinators, to ensure the plans adequately reflected the future of the Division and to determine if some positions identified for separation could be utilized in other areas. See AR 919, 15292-93, 17792, and 17380.
The MSPB Judge determined that the Division's de cision to return all managers on rotational management assignments to their original science or research posi tions was proper. AR 17791. He concluded that the Divi sion developed its reorganization plan properly. The Court finds that the MSPB Judge's conclusion was not arbitrary and capricious.
The MSPB Judge rejected Plaintiffs' claim that man agers had an undue influence on the staffing plans and noted that there was a consensus decision-making pro cess, with input from employees at all levels, in the de velopment and implementation of the staffing plans.
The MSPB Judge also rejected Plaintiffs' arguments that the SMEs were unduly influenced by the managers, were not qualified, and improperly destroyed their notes. The MSPB Judge concluded that there was no evidence that the managers "could, or did, overwhelm the free will of the SMEs." AR 17793. He considered the testimony of numerous SMEs and concluded that they were "assertive and confident of their expertise, judgment and status." Id. The MSPB Judge determined that there is no support in law or regulations for Plain tiffs' argument that all of the SMEs' notes should have been preserved or that the SMEs' handwritten notes which were later reduced to formal record should have been preserved. The MSPB Judge's conclusions were reasonable. See Bureau of National Affairs, Inc. v. United States Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984) (finding that appointment calendars and telephone slips are not agency records under the Free dom of Information Act); Judicial Watch Inc. v. Clinton, 800 F. Supp. 1 (D.C.C. 1995) (personal staff notes are not agency records under the Freedom of Information Act). Plaintiffs cite no law to the contrary.
Lastly, the MSPB Judge considered the Division's procedures for determining competitive levels. The MSPB Judge noted that he did not find any evidence of a large scale conspiracy in developing competitive levels, which would have been necessary in order illegally to [sic] manipulate the Division's reorganization and RIF that affected thousands of people nationally. See AR 17795. John McGurk, former Human Resources Officer for the Division, testified that the competitive level sys tem was revised to conform with the requirements of 5 C.F.R. _ 351.403 (a)(2) and explained the process in de tail. First, the Division asked employees to review their position descriptions and update them to reflect their current positions. The Division then modified competi tive levels in accordance with the specific position de scriptions filled out by the employees. Mr. McGurk ex plained that, thereafter, a panel of SMEs reviewed the employees' position descriptions, compared those posi tion descriptions within the same competitive area for consistency, and then made RIF recommendations. See AR 15973. Finally, these recommendations were re viewed by the validation team: all branch managers, the RIF Coordinator and the classification specialists. See AR 15976-77.
The MSPB Judge also noted that the Division sub mitted its competitive level revision process, including its use of single position competitive levels, to the Office of Personnel Management (OPM) for its guidance. See AR 17796. OPM found that the use of single position competitive levels was appropriate. AR 17796.
Furthermore, the MSPB Judge noted that Dean An derson, who served as a Supervisory Personnel Classifi cation Specialist, explained the construction of narrow competitive levels for research scientists. According to Mr. Anderson, research science requires creativity and originality, and research scientists largely define their own career tracks through increasing specialization. He pointed out, "It is not surprising that there is limited interchangeability." AR 17797. Moreover, Mr. Ander son explained that "federal agencies who have a large number of research scientists have similar narrow com petitive levels." AR 17797.
The MSPB Judge also determined that, under the pre-RIF system, over eighty-five percent of the compet itive levels for scientist or researcher positions were single position levels. See AR 1779. Furthermore, he determined that pre-RIF positions designated for more than one person "generally only included a few other people." AR 17795. The MSPB Judge decided that the Division's procedures for determining competitive levels was proper, and his decision was lot arbitrary and capri cious.
Again, although Plaintiffs dispute the credibility of some of the witnesses, there is very little, if any, evi dence in record supporting their assertions or under mining the "virtually unreviewable" discretion of the MSPB Judge to make decisions about credibility. Ham bsch v. Dept. of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
In sum, the MSPB Judge reasonably concluded that the Division had bona fide reasons for its reorganization. He reasonably decided that the Division properly devel oped and implemented the reorganization and RIF, and that the SMEs were independent and qualified, and were not required to retain their notes. He reasonably determined that the Division properly determined the competitive levels. He considered the correct laws and regulations. See 5 U.S.C. § 7703(c). There is substantial evidence in the record supporting his conclusions; his decision was not arbitrary and capricious. See id. Ac cordingly, the Court affirms the MSPB Judge's rulings on Plaintiffs' common claims.
D. Plaintiffs' Individual Claims
The Court has reviewed the MSPB Judge's decision regarding each Plaintiff and will not restate his ratio nale for all of the Plaintiffs' claims specific to their sepa ration. Rather, the Court will address the claims raised by Plaintiffs in the aggregate and identify the evidence in support of the MSPB Judge's decision.
1. Exemption From RIF
Plaintiff Overshine alleged that he had a private agreement with the Agency that exempted him from the RIF. The MSPB Judge found no provision in the RIF regulations that allows a private agreement between an Agency official and an employee to exempt the employee from the RIF. Plaintiff Overshine has not cited such a regulation. Therefore, the MSPB Judge reasonably con cluded that Plaintiff Overshine was not exempt from the RIF.
2. Competitive Levels
Plaintiffs alleged that their competitive levels were improperly established.5 As discussed above, the MSPB Judge rejected the Plaintiffs' generalized complaints of error regarding the Division's construction of the com petitive level system. In addition, the MSPB Judge re jected each Plaintiff' s individual claim that his or her own competitive level was too narrow and determined that all of these allegations failed as a matter of law for the following reasons: (1) other positions Plaintiffs ar gued should have been included in their competitive lev els were in a different grade,6 see C.F.R. § 351.403(a)(1) (competitive levels are made up of positions in the same grade), and (2) Plaintiffs were not correct in asserting that their competitive levels should include the same positions as the pre-1995 competitive level system,7 5 and the duties of the positions Plaintiffs wanted to in clude in their competitive levels were too dissimilar,8 see 5 C.F.R. § 351.403(a)(1) (competitive levels are made up of positions which are similar enough in duties). Some Plaintiffs also asserted that their competitive levels were established improperly because they were improp erly discriminated against or retaliated against for dis criminatory reasons. As discussed above, the Court will not consider on this motion any of Plaintiffs' claims of discriminatory treatment.
3. Competitive Area
Plaintiff Adam alleged that his competitive area should have been the national program of the branch to which he was assigned rather than the regional unit and, therefore, his position should not have been abolished.
The MSPB Judge rejected this claim, finding that Plaintiff Adam's competitive area met the requirements of 5 C.F.R. § 351.402(b) because it consisted of "an activ ity under separate administration with the local com muting area." 5 C.F.R. § 351.402(b). The MSPB Judge was not incorrect in rejecting Plaintiff Adam's competi tive area claim.
4. Transfer of Function To Another Competitive Area
Chapter 5 C.F.R. § 351.202 provides that when there is a transfer of any or all functions from one competitive area to another made in connection with a RIF, all em ployees whose functions were transferred must be trans ferred with their functions to the new competitive area. See 5 C.F.R. § 351.302.
The Code of Federal Regulations defines a transfer of function as the movement of work from one competi tive area to another. See 5 C.F.R. § 351.203. A "func tion" is a clearly identifiable activity of the agency which consists of substantial authorities, powers, and duties authorized by law which combine to form a segment of the agency's mission. See 5 C.F.R. § 351.203; see also Former Community Services Administration Employ ees v. Department of Health and Human Services, 21 M.S.P.R. 257, 262 (1984). Section 151.301(b) provides that:
In a transfer of function, the function must cease in the losing competitive area and continue in an identi cal form in the gaining competitive area (i.e. in the gaining competitive area, the function continues to be carried out by competing employees rather than by noncompeting employees).
5 C.F.R. § 351.301; see also Hayes v. Department of Health and Human Services, 829 F.2d 1092, 1096 (Fed. Cir. 1987); Hasler v. Department of the Air Force, 48 M.S.P.R. 207, 211 (1991). However, the movement of du ties from one competitive area to another does not con stitute a transfer of function. Walsh v. Environment Protection Agency, 25 M.S.P.R. 460, 465 (1984) (a trans fer of function occurs when functions as opposed to du ties are moved from one competitive area to another). In order to have a right to transfer with a function, an employee must show that the function was transferred to a different competitive area and that the entity that received the transfer was not already performing that function. See 5 C.F.R. § 203; see also Hayes, 829 F.2d at 1096 ("Under this regulation, a transfer of function oc curs only when a function is transferred to another com petitive area and the gaining area undertakes a class of activity it did not previously perform").
Some Plaintiffs allege that their positions were not abolished, but instead the functions of their positions were transferred to a different competitive area and, therefore, they should have been allowed to transfer to that area.9 Defendant counters that no function was transferred to an area where it did not previously exist and, therefore, that no transfers of function took place under 5 C.F.R. § 301.203.
The MSPB Judge found meritless all of Plaintiffs Adam, Calzia, Csejtey, Ford and Hirshorn's claims that the Division transferred the functions of their positions without transferring them, because in each case the function allegedly transferred previously existed in the transferee competitive area. Therefore, the MSPB Judge reasonably concluded that the Division did not transfer the function of these Plaintiffs' positions with out allowing them to transfer, and that Plaintiffs Adam, Calzia, Csejtey and Ford had no right to transfer with the duties of their positions.
5. The Division's Bump and Retreat Policy
Chapter 5 C.F.R. _ 351.701 provides [sic] the "bump and retreat" standard applied [sic] when a federal agency conducts a RIF. Section 351.701 requires that the retreating employee be qualified for the retreat po sition, be in the same competitive area as the retreat position, have the same work schedule as the retreat position, and retreat to the same or essentially same position as he or she held before. See 5 C.F.R. § 351.701(a) and (c)(3); Parkhurst v. Department of Transportation, 70 M.S.P.R. 309, 311 (1996). Further more, under 5 C.F.R. § 351.701(b), the retreating em ployee can bump "another employee in a lower tenure group" as long as that person is "no more than three grades below" the released position. 5 C.F.R. § 351.701(b).
Sixteen of the Plaintiffs claim that the Division should have allowed them to "retreat" into another posi tion instead of separating them from federal service.10 See Pl.s' First Amended Complaint, 7. Plaintiff Over shine also claims that he was improperly bumped from his position by Dr. Piper.
The MSPB Judge concluded that the Division's ac tions were proper under § 351.701 with regard to Plain tiffs' alleged bump and retreat violations. The MSPB Judge found that there were justifiable reasons specific to each Plaintiff as to why he or she could not retreat into other positions. These reasons included that: 1) some Plaintiffs wanted to retreat to a position that was not "essentially identical" to the released positions,11 2) some Plaintiffs were not qualified to assume the du ties of the retreat position without undue interruption,12 3) some Plaintiffs' released positions were lower in standing than the positions to which they wanted to re treat,13 4) some Plaintiffs' released positions were not the same type of work schedule (e.g., full-time, part- time, seasonal, etc.) as the position to which they wanted to retreat,14 5) some Plaintiffs wanted to retreat to va cant positions that the Division did not plan to fill15 and 6) one Plaintiff was properly bumped from his position.16
First, in determining whether a position was "essen tially identical," the MSPB Judge reasonably found that a "position is essentially identical to one previously held if the two positions would properly be placed in the same competitive level." AR 17803. See Parkhurst, 70 M.S.P.R. at 312. In Parkhurst, the MSPB Judge laid out the criteria for determining when a released position is "essentially identical" to the position retreated to and the standard for determining whether two positions should be in the same competitive level. Id. First, the Parkhurst MSPB Judge held that the competitive level determination "depends on the duties and qualifications set forth in the position descriptions." Id. Further more, in Parkhurst, the MSPB Judge found that "posi tions belong in the same competitive level if they are in the same grade and classification series, and are similar enough in duties, qualification requirements, pay sched ules, and working conditions so that the incumbent of one position could successfully perform the critical ele ments of any other position upon entry into it without any loss of productivity beyond that normally expected in the orientation of any new but fully qualified em ployee." Id. Here, the MSPB Judge held that where the released position and the retreat position were not "es sentially identical," retreat is prohibited. Therefore, be cause the MSPB Judge determined that each of the nine Plaintiffs alleging a right to retreat was released from a position that was not "essentially identical" to the posi tion to which he or she wanted to retreat, the MSPB Judge reasonably concluded that these Plaintiffs have no right to retreat.
Second, the MSPB Judge properly relied on Chapter 5 C.F.R. § 351.702(a)(1)-(4) in determining whether Plaintiffs were qualified to assume other positions with out undue interruption. In order to retreat to a position, § 351.702(a)(1)-(4) provides that the employee must meet the following requirements:
(1) meets the OPM standards and requirements for the position,
(2) is physically qualified, with reasonable accom modation where appropriate, to perform the du ties of the position,
(3) meets any special qualifying condition which the OPM has approved for the position, and
(4) has the capacity, adaptability, and special skills needed to satisfactorily perform the duties of the position without undue interruption. This deter mination includes recency of experience, when appropriate.
5 C.F.R. § 351.702(a)(1) -(4). See Vigil v. Department of the Army, 63 M.S.P.R. 384, 388 (1994). In defining "un due interruption," the MSPB Judge relied on the crite ria set forth in Porter v. Department of Commerce, 13 M.S.P.R. 177, 180-81 (1982). Porter held that undue in terruption "is a degree of interruption that would pre vent the completion of required work within the allow able limits of time and quality." Id. The Porter MSPB Judge held that "it naturally follows that any finding of undue interruption must be related directly to the na ture of the particular work program to be affected. De pending upon the pressures of priorities, deadlines, and other demands, the ordinary work program probably would not be unduly interrupted if optimum quality and quantity of work were not regained within 90 days after a reduction in force." 13 M.S.P.R. at 179-80. Further more, the Division also may consider whether the dis placement of an incumbent by retreat of another em ployee into his or her position would cause undue inter ruption. See La Prade v. Department of Transporta tion, 27 M.S.P.R. 277, 283 (1985) (finding that "an other wise qualified employee is not entitled to exercise as signment rights to an incumbered position if the dis placement would result in undue interruption").
Here, the MSPB Judge concluded that each Plaintiff claiming a right to retreat to another position was not qualified to assume that position without undue inter ruption. The MSPB Judge relied on the testimony of expert witnesses and some of these Plaintiffs' supervi sors, and considered each of these Plaintiffs' prior work experience as compared to the required skill and knowl edge of the alternative position. See La Prade, 27 M.S.P.R. at 283. Substantial evidence supports the MSPB Judge's conclusion that Plaintiffs could not have retreated to other positions without undue interruption.
Third, the MSPB Judge properly concluded that 5 U.S.C. § 351.701 prohibits the retreat of an employee to a position with a higher retention level. Section 351.701 states that "an agency shall offer assignment, rather than furlough or separate, in accordance with paragraphs (b), (c) and (d) of this section." 5 C.F.R. § 351.701. These paragraphs provide, respectively, (1) the requirements for bumping "another employee in a lower subgroup but the same tenure group," (2) the require ments for retreating to a "position held by another em ployee with lower retention standing in the same tenure group or subgroup," and (3) the limitations on these pro cesses. 5 C.F.R. § 351.701 (b), (c) and (d). These sec tions require that the released employee may retreat only to a position held by another employee that "is no more than three grades . . . below the position from which the employee was released . . . " Id. Therefore, Plaintiffs Adam and Calzia's request to retreat to a posi tion of higher retention level was properly denied.
Fourth, the MSPB Judge properly concluded that § 351.701 prohibits the retreat of an employee to a posi tion that does not include "the same type of work sched ule." 5 C.F.R. 351.701(a). Therefore, Plaintiffs Calzia, Lewis and Lindh's request to retreat to a position with a different work schedule was properly denied.
Fifth, the MSPB Judge was correct that an employee may not retreat to a position that the Division has de cided to leave vacant. Pursuant to Chapter 5 C.F.R. _ 351.201(b), an agency is not required to fill a vacant position. Therefore, Plaintiffs Adam, Grantz, Lewis, Overshine and Turrin's requests to retreat to vacant positions were properly denied.
Lastly, the MSPB Judge reasonably concluded that Dr. Piper was qualified pursuant to 5 C.F.R. § 351.701(a) and (b) to bump Plaintiff Overshine from his GS-15 posi tion.
The Court finds that there is substantial evidence to support the MSPB Judge's decisions with regard to the bump and retreat claims of each of the individual Plain tiffs who made such claims.
E. Post-RIF Claims
Some Plaintiffs claim that Defendant failed to con sider them for any vacant positions which were filled after the RIF. It is not clear whether Plaintiffs allege that Defendant violated the CSRA or discriminated against them, or both, by failing to consider them for vacant positions which were filled after the RIF.
If Plaintiffs are alleging that Defendant violated the CSRA by failing to consider them for positions filled after the RIF, the Court finds this argument to be un substantiated and unpersuasive. Plaintiffs do not assert that they sought out a particular position and Defendant failed to consider them. Rather, Plaintiffs assert that Defendant failed to notify them that there were posi tions being filled after the RIF and, therefore, failed to consider them for those positions. Plaintiffs fail to cite any law or regulation that requires a federal agency to notify a former employee who was separated during a RIF of a vacant position being filled after the RIF. Fur ther, Plaintiffs fail to establish that any of the Plaintiffs brought a claim before the MSPB that the Division failed to consider them for a position after the RIF. Therefore, Plaintiffs' claims that Defendant violated the CSRA by failing to notify them of and consider them for positions that were filled after the RIF fails. If Plain tiffs claim that Defendant unlawfully discriminated against them by failing to notify them of or consider them for positions that were filled after the RIF, the Court will not consider such claims on this motion.
II. Motion to Dismiss Plaintiff Hirshorn and Turrin's Claims For Lack of Jurisdiction.
Defendant moves to dismiss Plaintiffs Hirshorn and Turrin's claims for lack of jurisdiction. Defendant does not specify the procedural basis for its motion to dis miss. The Court therefore treats this motion as a mo tion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Pro cedure.
Defendant claims that Plaintiffs Hirshorn and Tur rin, unlike the other Plaintiffs, did not allege discrimina tion claims in the proceedings before the MSPB. How ever, these Plaintiffs did allege that the Division retali ated against them in conducting the RIF. Therefore, the Court has jurisdiction over these claims. See 5 U.S.C. § 7703(c); cf Hays v. Postmaster General of the United States, 868 F.2d 328, 329 (9th Cir. 1989) (finding that "the district court did not have jurisdiction over dis crimination claims that were not raised before the MSPB at any stage of the proceeding"). Summary judg ment on Plaintiffs' retaliation claims is not being consid ered on this motion.
III. Plaintiff Mann's Allegations
Defendant argues that Plaintiff Mann's claims re garding the RIF are barred by a March 7, 1997 settle ment agreement, and that his claims that after the RIF the Division violated the CSRA by failing to consider him for vacant positions are barred because he failed to exhaust his administrative remedies pursuant to 5 U.S.C. § 7702.
Plaintiff Mann has not alleged that the Division con ducted the RIF in violation of the CSRA. If he had, the allegations would be barred by the settlement agree ment.
Rather, Plaintiff Mann's claims are based on actions taken against him after he was rehired. Specifically, Plaintiff Mann claims that after he was rehired, he ap plied for vacant positions for which he was qualified and, in violation of the CSRA, Defendant failed to consider him or canceled the position for which he had applied. Plaintiff Mann also alleges that after he was rehired, he was subjected to ridicule and retaliated against for pro tected activity.
Plaintiff Mann's claim for violation of the CSRA after he was rehired is barred because he failed to seek review with the MSPB in accordance with 5 U.S.C. § 7701 et seq. prior to filing this lawsuit. See Romain, 799 F.2d at 1421. As explained above, Plaintiff Mann's retal iation claim will not be addressed on this motion.
IV. Plaintiffs' Rule 56(f) Request
Plaintiffs allege that Defendant's motion for sum mary judgment is premature because it is not adequate ly substantiated by the evidence and because there has been little meaningful discovery conducted. Therefore, Plaintiffs assert that Defendant's motion for summary judgment should be denied until they have sufficient time to conduct discovery.
Defendant filed her motion for partial summary judgment on January 18, 2000. Pursuant to stipulation of the parties, Plaintiffs' opposition to Defendant's mo tion was to be filed on April 21, 2000. Plaintiffs did not submit their opposition on April 21, 2000. Instead, on April 28, 2000, Plaintiffs filed an ex parte application for permission to file a Rule 56(f) motion, stating that Plain tiffs' counsel had been occupied with competing commit ments and had experienced technical problems with her computer equipment. The Court denied Plaintiffs per mission to file a Rule 56(f) motion and granted them a three week extension to file an opposition to Defendant's motion for summary judgment and a motion for further discovery, if necessary, to oppose the motion. The Court also advised Plaintiff that Rule 56(f) requires the moving party to state reasons why they couldn't "present by affidavit facts essential to justify the party's opposition," and state facts they hope to discover. Fed. R. Civ. P. 56(f); see May 4, 2000 Order.
"[T]he party seeking a continuance bears the bur den to show what specific facts it hopes to discover that will raise an issue of material fact. The mere hope that further evidence may develop prior to trial is an insuffi cient basis for a continuance under Federal Rule of Civil Procedure 56(f)." Continental Maritime of San Fran cisco v. Pacific Coast Metal Trades Dist. Council, Metal Trades Dep't. AFL-CIO, 817 F.2d 1391, 1395 (9th Cir. 1987) (internal citation omitted). To obtain a continu ance, the party opposing the summary judgment motion must make clear not only what information is sought, but also how that information "would preclude summary judgment." Margolis v. yan, 140 F.3d 850, 853 (9th Cir. 1998) (quoting Garrett v. City and County of San Fran cisco, 818 F.2d 1515, 1518 (9th Cir. 1987) ).
Plaintiffs' claim that they are entitled to relief pur suant to Rule 56(f) is unsubstantiated. First, Plaintiffs have not explained why further discovery is necessary, in view of the fact that the Court must rely on the ad ministrative record in reviewing a MSPB Judge's deci sion on non-discrimination issues. Because Defendant's motion for partial summary judgment solely addresses the non-discrimination issues, this Court need not look beyond the administrative record that was before the MSPB Judge below.
Next, Plaintiffs' reliance on Magistrate Judge La Porte's December 30, 1998 Order, which limited discov ery to that necessary to bring and oppose a class certifi cation motion, is mistaken because the December 30, 1998 Order expired long before Plaintiffs' deadline for filing their opposition to Defendant's motion for partial summary judgment. Moreover, Judge LaPorte's May 19, 1999 Order states, "The parties shall meet in person to discuss discovery and case management issues in this case and, by June 22, 1999 shall file a Joint Case Man agement Conference Statement outlining any issues that may be in dispute." Plaintiffs have failed to present evi dence that they attempted to conduct discovery after Judge LaPorte's May 19, 1999 Order. Rather, Defendant alleges that Plaintiffs have not filed any discovery re quests since January, 1999.
Lastly, even if additional discovery were necessary, Plaintiffs have failed to present specific facts they hope to discover that will raise an issue of material factual dispute. Therefore, Plaintiffs have failed to demonstrate that they are entitled to relief pursuant to Rule 56(f).
Furthermore, Plaintiffs also argue that they should be granted relief under Rule 56(f) because they have requested, to no avail, an electronic copy of the 175 vol ume administrative record from Defendant. However, this argument is moot because Plaintiffs' motion to com pel an electronic copy of the administrative record was granted in part and denied in part in the December 21, 2000 Order by Judge LaPorte.
V. Motions To Strike
Plaintiffs move to strike all references in Defen dant's motion or partial summary judgment to the MSPB Judge's hearing decision, claiming that these ref erences are not to admissible evidence. Defendant moves to strike unsupported factual references in the pleadings and declarations filed by Plaintiffs in their op position and surreply to Defendant's motion for partial summary judgment.
Plaintiffs' and Defendant's motions to strike are both voluminous. However, although neither is entirely without merit, the Court, having considered the parties' motions to strike, finds that neither party has moved to strike evidence that both is inadmissible and necessary to the Court's disposition of Defendant's motion for par tial summary judgment. The Court therefore does not offer a point-by-point analysis of the merits of the par ties' motions to strike. To the extent that this order cites and relies upon evidence to which a party has moved to strike, that party's motion is denied on the merits. To the extent that a party has moved to strike evidence that is not necessary to the Court's disposition of this order, that party's objection or motion is denied as moot.
For the foregoing reasons, Defendant's Revised Motion For Partial Summary Judgment (Docket #83) is GRANTED and her Motion to Dismiss Plaintiffs Hirs horn and Turrin's claims (Docket #83) is DENIED. De fendant's Motion For Partial Summary Judgment on the CSRA Claim Regarding Adam (Docket # 52) is DE NIED as moot, having been superseded by this revised motion. Defendant's motions to strike (Docket ## 102 and 111) are DENIED. Plaintiffs' Cross-Motion For Summary Judgment (Docket #63), Motion for Relief Pursuant to Rule 56(f)(Docket #63), and Motion To strike Defendant's Evidence (Docket #93) are DE NIED.
Dated: [MAY 17, 2001] /s/ ILLEGIBLE
United States District
Copies mailed to counsel as noted on the following page
7. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
Case Number: 4:98-cv-02094 ADAM
[May 17, 2001]
* * CERTIFICATE OF SERVICE * *
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.
That on May 17, 2001, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) here inafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office de livery receptacle located in the Clerk's office.
Mary Beth Uitti, Esq. U.S. Attorney's Office 1301 Clay St Ste 340S Oakland, CA 94612-5217
Mary Dryovage, Esq. 240 Stockton Street, 9th Floor San Francisco, CA 94108
RICHARD W. WIEKING, CLERK
BY: /s/ ILLEGIBLE
1 Defendant also argues that, viewed in context, Dr. Eaton and others in management were encouraging employees of the USGS to change "in order to meet the agency's changing missions and societal needs." Defendant's Reply at 3. Although Eaton's comments are sus ceptible to this interpretation, Plaintiffs have presented sufficient evi dence from which a factfinder could infer discriminatory animus.
2 Defendant also contends that Plaintiffs' statistical sample was too small. See Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002) ("the pro bative value of any statistical comparison is limited by the small avail able sample"). In Stout, however, the data set consisted of thirty-eight applicants for five positions. In the present case, Plaintiffs compared the 550 positions eliminated to the total workforce of approximately 2000 employees.
3 Plaintiff Allan G. Lindh was not separated from service but his po sition was downgraded from a GS-15 Geologist to a GS-12 Geologist. See AR 31115. Plaintiff Dennis Mann continues to work for the Division following his settlement of his RIF claims during administrative pro ceedings. See Decl. of Mary Beth Utti In Opposition to Pl.s' Motion To Amend Complaint, C1 and C2.
4 Although Plaintiffs do not distinguish between the financial health iness of the Agency as opposed to the Division, the MSPB Judge con sidered the financial healthiness of the Agency as well as that of the Di vision.
5 The following Plaintiffs claimed that their competitive levels were too narrow: Adam, Adami, Calzia, Csejtey, Davis, Ford, Grantz, Hirsh orn, Iyer, Lindh, Turrin and Wrucke.
6 Plaintiffs Adam, Davis and Hirshorn.
7 Plaintiffs Calzia, Ford and Wrucke.
8 Plaintiffs Csjtey, Ford, Hirshorn, Iyer, Turrin and Wrucke.
9 Plaintiffs Adam, Calzia, Csejtey, Ford and Hirshorn.
10 Plaintiffs alleging bump and retreat violations are: Adam, Adami, Calzia, Csejtey, Davis, Drinkwater, Ford, Grantz, Hirshorn, Iyer, King, Lewis, Lindh, Overshine, Turrin and Wrucke.
11 The MSPB Judge found this rationale barred bump and retreat for each of the following Plaintiffs: Adam, Adami, Csejtey, Davis, Drinkwater, Ford, Grantz, Iyer, King, Hirshorn, Lewis and Turrin.
12 The MSPB Judge found this rationale barred bump and retreat for each of the following Plaintiffs: Calzia, Csejtey, Davis, Drinkwater, Ford, Hirshorn, Iyer, King, Lewis, Turrin and Wrucke .
13 The MSPB Judge found this rationale barred bump and retreat for Plaintiffs Adam and Calzia.
14 The MSPB Judge found this rationale barred bump and retreat for the following Plaintiffs: Calzia, Lewis and Lindh.
15 The MSPB Judge found this rationale barred bump and retreat for each of the following Plaintiffs: Adam, Grantz, Lewis, Overshine and Turrin.
16 The MSPB Judge found that Plaintiff Overshine was properly bumped.