Petition for Writ of Certiorari — Betz v. Napolitano

eT ES

No. 09-932 FEB 2- 2010

= The OFFICE OF THE CLERK

Supreme Court of the Anited States

MARLENE BETZ

Petitioner,

JANET NAPOLITANO,

SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

Respondent

On Petition for Writ of Certtorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

STEPHEN CHARLES FIEBIGER

Counsel of Record

STEPHEN C. FIEBIGER &

ASSOCIATES, CHTD

2500 West County Roap 42

SUITE 190

BURNSVILLE, MN 55337

(952) 746-5171

ficblaw@earthlink.-nect

Attorney for Petitioner

February 2, 2010

Becker Gallaghes Cincinnati, OH Waslungton, D.C. - 800.890.5001

QUESTIONS PRESENTED

Whether the exceptions in 29 C.F.R. Sec.

1614.105(a)(2) to the requirement that a federal

employee contact an EEO counselor within 45 days

of a discriminatory act or personnel matter extend

the scope of a_ retaliation-based constructive

discharge claim under the Age Discrimination in

Employment Act of 1967 (ADEA), 29 U.S.C. Sec.

633(a)?

What is the standard for retaliation-based

constructive discharge claims by federal employees

under the Age Discrimination in Employment Act

of 1967, 29 U.S.C. Sec 633(a)?

When a district court bars claims and evidence of

events of discrimination and retaliation before

September 21, 2003 based upon 29 C.F_R. Sec.

1614.105(a\1) and Ledbetter v. Good Year Tire &

Rubber Co., 550 U.S. 618 (2007), at a summary

judgment hearing before trial, can the court use

evidence from the barred time period to rule that

no discrimination or constructive discharge

occurred without a direct reversal of its earlier

order?

Can a federal appeals court make findings of fact

and rule on a retaliation-based constructive

discharge claim under the ADEA that was

dismissed by summary judgment when the claim is

neither presented at trial nor decided with findings

of fact by the district court?

1]

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

TABLE OF CONTENTS

TABLE OF AUTHORITIES dw ae oe a

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED ..

STATEMENT OF THE CASE ................

REASONS FOR GRANTING THE WRIT ......

[ Review is Necessary to Clarify

Exceptions to 29 C.F.R. Sec.

1614.105(a)(2) for Federal Employees to

Prosecute Retaliation-Based Constructive

Discharge Claims Under the ADEA.

[] Review Should be Granted to Address the

Standard for a Retaliation-Based

Constructive Discharge Claim by a

Federal Employee Under the ADEA, 29

U.S.C. See. GGG... 2554555

[1] Review is Necessary to Establish

Procedural Fairness for Enforcing Pre-

Trial Rulings By the District Court

Barring Evidence of Events Before the

45-day Filing Period Under 29 C.F.R.

Sec. 1614.104(a\1) Before September 21,

10

16

IV.

ill

2003, But Using Events From the Barred

Period to Find No Age Discrimination

While Excluding Evidence From the

os Fo he eel Se oc gg os

Review Should Be Granted When the

Court of Appeals Makes Findings of Fact

on a Federal Employee’s Retaliation-

Based Constructive Discharge Claim

That Has Been Previously Dismissed by

Summary Judgment And Was Not Tried

Before The District Court. ..........

oD ao ce Sb hin yb peo -e ew

APPENDIX

Appendix A: Eighth Circuit Opinion

(August 28, 2009) ............

Appendix B: District Court Judgment

(euey G, eum) .............. (Wa

Appendix C: District Court Order re judgment

as a matter of law

21

cg ee Z2la

Appendix D: District Court, Transcript of July

2, 2008 Proceedings re findings of

fact and conclusions of law .... 2

Appendix E: District Court written Order re

Motion for Summary Judgment

fe Sy 3 ee

2a

LV

Appendix F: District Court Transcript of May

31, 2007 Proceedings re Summary

Judgment Oral Order Ala

Appendix G: Eighth Circuit Order denying

Petition for Rehearing and

Rehearing en banc

(November 4, 2009) t8a

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, N.C.,

470 U.S. 564, 105 S.Ct. 1504, $4 L.Ed. 2d 518

(1985) 26. st

Atlantic Thermoplastics Co., Inc. v. Faytex Corp.,

5 F.3d 1477 (Fed. Cir. 1993) 2/

Brvant v. Jones.

575 F.3d 1281 (11th Cir. 2009) l‘,

Burlington N. & Santa Fe Ry. v. White,

548 US. 53 (2006) 11, 14, 15

Clowes v. Allegheny Valley Hosp.,

991 F.2d 1159 (3d Cir. 1993) 14

Duffy v. Paper Magic Group, In

265 F.3d 163 (3d Cir. 2001) 17

Estes v. Dick Smith Ford, Inc..

856 F.2d 1097 (8th Cir. 1988) 24

Felictano-Hull v. Principt,

139 F.3d 18 (Ist Cir. 2006) iv

Flaherty v. Metromatl Corp ;

235 F.3d 133 (2d Cir. 2000) 17

Garner v. Wal-Mart Stores, Inc.,

807 F.2d 1536 (11th Cir. 1987) 14

vl

Goldmeier v. Allstate Ins. Co.,

337 F.3d 629 (6th Cir. 2003) ....

Gomez-Perez v. Potter,

128 S. Ct. 1931 (2008)

Haley v. Alliance Compressor LLC,

391 F.3d 644 (5th Cir. 2004)

Heiko v. Colombo Sav. Bank,

434 F.3d 249 (4th Cir. 2006)

Hindman v. Transkrit Corp.,

145 F.3d 986 (8th Cir. 1998)

Jones v. Fitzgerald,

285 F.3d 705 (8th Cir. 2002)

King v. United States,

553 F.3d 1156 (8th Cir. 2009)

Ledbetter v. Good Year Tire & Rubber Co.

550 U.S. 618 (2007) .. a 6, 8, 13, 2%

McClain v. Lufkin Indus., Inc.,

519 F.3d 264 (5th Cir. 2008)

Nance v. Goodyear Tire & Rubber Co.,

527 F.3d 539 (6th Cir. 2008)

National R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002)

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998) .. 19,

17

17

24

13

20

Vii

Pennsylvania State Police v. Suders,

542 U.S. 129 (2004)

Poland v. Chertoff,

494 F.3d 1174 (9th Cir. 2007)

Potts v. Davis County,

551 F.3d 1188 (10th Cir. 2009) .

Premratananont v. S. Suburban Park & Recreation

District,

No. 97-1090, 1998 WL 211543 (10th Cir. April

30, 1998) .

Reyes-Morales v. Ashcroft,

435 F.3d 937 (8th Cir. 2006)

Tatom v. Georgia-Pacific Corp.,

228 F.3d 926 (8th Cir. 2000)

Veitch v. England,

471 F.3d 124 (D.C. Cir. 2006)

West v. Marion Merrell Dow, Inc..,

54 F.3d 493 (8th Cir. 1995)

White v. Honeywell, Inc.,

141 F.3d 1270 (8th Cir. 1998) ..

Williams v. Waste Mgmt. of Illinots,

361 F.3d 1021 (7th Cir. 2004) ...

Wolf v. Nw. Indiana Symphony Society,

250 F.3d 1136 (7th Cir. 2001) .....

16

24

17

Vill

Woodward vu. City of Worland,

977 F.3d 1392 (10th Cir. 1992) 14,18

Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100, 89 S. Ct. 1562, 23 L.Ed. 2d 129

1969 26

Statutes

28 U.S. pec. 1254(1) |

29 U.S.C. Sec. 633(a) 1 10.11, 16

Rules

Fed. R. Civ. P. 50 2.1

Fed. R. Civ. P. 52a a ae

Fed R. Evid. LO3(ay 22

Regulations

29 C.F.R. Sec. 1614.104( 21

29 C.F_R. Sec. 1614.105 2

29 C.F.R. Sec. 1614.105(a) 1]

29 C.F.R. Sec. 1614.105(a)(1) D 14

29 C.F.R. Sec. 1614.105(a 2 IO. 11. ] Lb

1

OPINIONS BELOW

The decision of the Court of Appeals is reported at

578 F. 3d 929 and is reproduced in the Appendix

herein at la-l6a. The decisions of the U.S. District

Court are not officially reported but are reproduced in

the Appendix at Pet. App. 21la (trial order) and 41a

(summary judgment oral order).

JURISDICTION

The judgment of the Court of Appeals was issued

on August 28, 2009. Pet. App. la. Petitioner timely

petition for rehearing and rehearing en banc was

denied on November 4, 2009. Pet. App. 48a. This Court

has jurisdiction pursuant to 28 U.S.C. Sec. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Age Discrimination Act of 1967 (ADEA), 29

U.S.C. Sec. 633(a) provides:

(a) Federal agencies affected

All personne! actions affecting employees or

applicants for employment who are at least

40 years of age (except personnel actions

with regard to aliens employed outside the

limits of the United States) in military

departments as defined in section 102 of

Title 5, in executive agencies as defined in

section 105 of Title 5 (including employees

and applicants for employment who are paid

from nonappropriated funds), in the United

States Postal Service and the Postal

regulatory Commission, in those units in the

government of the District of Columbia

having positions in the competitive service,

and in those units of the judicial branch of

the Federal Government having positions in

the competitive service, in the Smithsonian

Institution, and in the Government Printing

Office, the Government Accountability

Office, and the Library of Congress shall be

made free from any discrimination based on

age

Code of Federal Regulations

29 C.F_R. Sec. 1614.105 Pre complaint processing

(a) Aggrieved persons who believe they have

been discriminated against on the basis

of race, color, religion, sex, national

origin, age, disability, or genetic

information must consult a Counselor

prior to filing a complaint in order to try

to informally resolve the matter.

(1) An aggrieved person must initiate

contact with a Counselor within 45 days

of the date of the matter alleged to be

discriminatory or, in the case of

personnel action, within 45 days of the

effective date of the action.

(2) The agency or the Commission shall

extend the 45-day time limit in

paragraph (a1) of this section when the

individual shows that he or she was not

notified of the time limits and was not

otherwise aware of them, that he or she

did not know and reasonably should not

have known that the discriminatory

matter or personnel action occurred, that

despite due diligence, he or she was

prevented by circumstances beyond his or

her control from contacting the Counselor

within the time limits, or for other

reasons considered sufficient by the

agency or the Commission

STATEMENT OF THE CASE

This case concerns the ability of a federal employee

to assert claims for ave discrimination and retaliation

for continuing retaliatory acts after bringing an EEO

age discrimination complaint against her supervisor

that subject her to inequitable working and pay

conditions and the employer piling on duties with no

hope for improvement that eventually force the

employee to retire

Marlene Betz (Betz) sued the U.S. Department of

Homeland Security (DHS) for age discrimination and

retaliation-based constructive discharge under the Age

Discrimination in Employment Act (ADEA) arising out

of her employment as an Administrative Support

Assistant at the St. Paul, Minnesota office. Betz began

as a GS-5 secretary for Immigration and

Naturalization Services (INS) in 1995 and was

upgraded to a GS-6 after a desk audit in 1997. A desk

audit entailed a personnel officer examining a position

to determine if the position and duties were properly

classified on the pay grade scale. Betz received glowing

performance appraisals from 1995 to 1999. She was

again upgraded to a GS-7 after filing an EEO age

discrimination complaint against her supervisor, Mark

Cangemi, the Assistant District Director’ of

Investigations (ADDI) in 1999. Betz was 61 at the

time. When Cangemi learned of her complaint he

confronted her personally. After her EEO complaint,

Cangemi stopped rating her altogether and Betz never

received another performance appraisal or

performance work plan from him despite government

regulations mandating the appraisals be given

annually. Cangemi attributed his failure to give Betz

her performance appraisal to being busy, travel, and

the events of 911, among other things. Betz requested

position upgrades in 2000, 2001 and 2002

In July of 2001, Cangemi called Betz to his office

and asked what her retirement plans were. She was 63

years old. Betz was dumbfounded and responded that

she planned to see if there was a buyout. Cangemi did

not ask all employees about their retirement plans.

In March of 2003, St. Paul became a Special Agent

in Charge (SAC) office for DHS, merging INS and the

Bureau of Customs Enforcement, becoming known as

Immigrations and Customs Enforcement (ICE). The

St. Paul office absorbed offices in Nebraska and lowa,

along with Customs, to encompass five states under

Cangemi. The number of employees grew significantly

Betz handled purchasing and accounting, monitored

personnel and overtime funds, and handled payroll, in

addition to other reporting and tracking duties. Betz’s

duties and responsibilities expanded significantly with

the expansion of the office and included duties of

higher level GS-11 employees, including purchasing

under the Federal Financial Management System

(FF MS).

Betz requested an upgrade in her job classification

in Spring of 2003 with no action. In August, Betz had

a performance appraisal conducted by Mary

Hernandez, second 1n command, although Hernandez

was not her direct supervisor. The appraisal was for

Retz’s pre-DHS job position. Betz asked Cangem:

about an upgrade again in early October with no

response. Cangemi made no effort to pursue a desk

audit for her position. She asked again on October 29,

2003 and he said there was nothing he could do. He

told her it “wasn’t going to happen”. Cangem: then

confronted Betz alone in the break room at the end of

the day and she felt threatened and unsafe. She

became upset and said she had no choice but to retire

He told her she could go home and return to put in her

paperwork. Betz left in tears

Hernandez met with Betz the next day and Betz

was upset and tearful. Hernandez asked Betz to stay

another thirty days to help and promised her a $1,000

Special Act Award if she agreed. Betz agreed and

worked the extra thirty days but the DHS never paid

her the $1,000.00. Hernandez moved Betz’s desk away

from Cangemu's office

Cangemi told an EEO investigator that a desk

audit would not have supported an upgrade for Betz’s

position. He later told the investigator that he could

not determine whether Betz’s job should be graded at

a level higher than GS-7 without a desk audit.

Cangemi subsequently averred in a sworn statement

that a desk audit was not initiated because

management did not support the proposal for her to be

upgraded. At summary judgment, the DHS argued a

shortage of funding precluded an upgrade

6

Other employees received job restructuring and

promotions in 2003. Al Oswald, 50, performed similar

duties as Betz at the Omaha office and received a

promotion to a GS-9 and GS-11. Cangem: and

Hernandez were upgraded. Cangemi wrote special

appeal letters for others to safeguard their status. The

record showed all other employees performing similar

FF MS duties were grade GS-1lwhile Betz remained

GS-7. Betz, in fact, trained Sylvia Seamans, a GS-11,

on FFMS. The district court found that “[t]here was no

evidence provided, and the court has none showing,

that anything she did was outside of her grade GS-7

classification.” Pet. App. 29a. This finding was not

addressed by the Circuit Court. Betz determined she

could not continue to perform higher level duties for

GS-7 pay with no hope of an upgrade and retired.

Betz filed an EEO complaint on November 5, 2003

and sued alleging age discrimination, constructive

discharge, wage discrimination, retaliation and

retaliation-based constructive discharge. The district

court granted summary judgment on claims and

barred evidence of events before September 21, 2003,

45 days before her EEO complaint pursuant to 29

C.F.R. Sec. 1614.105(aX1). Pet. App. 43a. At the

summary judgment hearing, held two days after this

Court’s decision in Ledbetter v. Goodyear Tire &

Rubber Co., 550 U.S. 618 (2007), the district court

found:

Here, plaintiff, as | said, consulted with an EEO

counselor in November 5, 2003. She was

obligated by federal regulations to do so within

45 days of the alleged discriminatory act. It

means she may not sit on her rights. And

therefore, she may not present any evidence of

discriminatory or retaliatory acts prior to the

45-day period before that, which means prior to

September 21, 2003, as claims based on

evidence - - such evidence are time-barred. Pet

App. 46a

The Eighth Circuit concluded that this language

was of minimal consequence because the district court

also said “Therefore, in conclusion, the Court finds

that summary judgment is appropriate and is

mandated to all claims prior to that date”. Pet. App.

9a. The Appeals Court noted that the court’s written

Order provided that “Plaintiffs claims based on

allegedly discriminatory or retaliatory events that

occurred prior to September 21, 2003 are untimely,

and summary judgment is granted as to these claims”

Id. The written Order, however, adopted “the reasons

stated at the hearing” and barred all claims based on

allegedly discriminatory or retaliatory events that

occurred prior to September 21, 2003. Pet. App. 39a

This ruling was never changed.

A bench trial was held on Betz’s age discrimination

and constructive discharge claims and the court ruled

in favor of the DHS. Pet. App. 22a. While sustaining

an objection to evidence offered by Betz, the court

agreed with the Government's position that the trial

was based upon a constructive discharge case arising

in 2003 and excluded evidence relevant to retaliation

including her job duties in 1998 and performance

appraisals from 1996-1999 before her EEO complaint.

T-7. The district court made no findings of facts or

ruling on the retaliation-based constructive discharge

claims after the trial. Betz’s 1999 EEO complaint was

not presented in evidence at trial.

8

in finding no age discrimination, the district court

found that Betz had been upgraded in 1997 at age 59

and in 1999 at 61. Pet. App. 66a. The court found it

“significant” that Betz had not shown how she was

being discriminated against at age 63 in 2003 when

she hadn’t been at 59 and 61. Jd. The Appeals Court

upheld the district court’s conclusion that Cangemi’s

inquiry about Betz’s retirement plans did not create an

inference of age discrimination. Pet. App. 6a. The

Court also rejected Betz’s argument that its analysis

of comparable employees was too restrictive. Pet. App.

fa

Betz argued the district court erroneously

restricted evidence to events of 2003, with limited

exceptions, in conformance with its oral order at

summary judgment barring evidence of events pnor to

September 21, 2003. The Eighth Circuit concluded that

the summary judgment ruling was not an expected

pre-trial ruling by the parties or referenced at trial

Pet. App. 10a. The Government’s statement of the case

at trial cited the district court’s language that Betz *

may not present any evidence of discriminatory or

retaliatory acts prior to ... September 21, 2003, ... such

evidence |is| time-barred.” After the trial, the district

court referenced its prior order stating “This court

previously ruled during the motion for summary

judgment that her claim would have been limited to

discriminatory conduct occurring 45 days before her

EEO complaint. That would have been on or after

September 21, 2003. That was the court's

consideration with regard to Ledbedder (sic)”. Pet.

App. 24a. The Eighth Circuit concluded the district

court did not exclude evidence that Betz did not offer

and found no error in finding that DHS did not

9

discriminate against Betz because of her age. Pet. App.

10a.

Betz’s contention that the district court erred

utilizing evidence of events prior to 2003, while

precluding her full opportunity to present evidence

from the same time period, was rejected as “specious”

by the Eighth Circuit. Pet. App. 9a-10a. This was

premised on admission of limited evidence from pre-

September 21 and the court’s inquiry about Betz’s

duties in 1999. Pet. App.10a. The Eighth Circuit

affirmed the partial summary judgment ruling that

Betz’s retaliation and constructive discharge claims

were subject to the requirement that federal employees

must generally report discrimination to an EEO

counselor within 45 days of an occurrence under 29

C.F_R. Sec. 1614.105(aX1). Pet. App. 9a. The Appeals

Court rejected Betz’s continuing violations theory and

concluded the acts of discrimination and retaliatory

adverse employment decision constituted a separate

actionable ‘unlawful employment practice’ and

concluded Betz equated denial of upgrade with a

failure to promote that were discrete acts. Pet. App.

L5a.

The district court ruled after trial that Betz had not

been constructively discharged and this ruling was

affirmed. Pet. App. 10a-lla. The Eighth Circuit

adopted the Government’s argument that Betz’s

complaints were nothing more than being “overworked

and underpaid.” Pet. App. lla. The Court held that

performing Betz’s duties in return for her GS-7 salary

(about $39,000 when she resigned) was not objectively

intolerable. Jd.

10

The district court conducted the trial as though

Betz’s retaliation-based constructive discharge claim

was dismissed at summary judgment because it was

premised on her 1999 EEO complaint. The court

omitted ruling on the claim at trial. The Eighth Circuit

noticed this omission and ruled Betz’s EEO charge for

her retaliation-based constructive discharge claim was

timely. Pet. App. 15a. The Appeals Court, however,

ruled as though the claim had been tried and found

that her working conditions were not intolerable as a

matter of law. Pet. App. 15a. The Court reasoned that

DHS paid Betz about $39,000 annually and because

she did not contend that the agency or Cangemi

required her to perform duties or to work hours that

were in any way “inhumane?” or “unacceptable”, her

conditions were not intolerable. Pet. App. 16a.

REASONS FOR GRANTING THE WRIT

I. Review is Necessary to Clarify Exceptions

to 29 C.F.R. Sec. 1614.105(a)(2) for Federal

Employees to Prosecute Retaliation-Based

Constructive Discharge Claims Under the

ADEA.

This Court should recognize the exceptions in 29

C.F.R. Sec. 1614.105(a)X2) to the requirement that a

federal employee contact an EEO counselor within 45

days of a discriminatory act or personnel matter and

extend the scope of a retaliation-based constructive

discharge claims under 29 U.S.C. Sec. 633(a), the Age

Discrimination in Employment Act of 1967 (ADEA).

This is an issue of first impression for this Court.

To make out a claim for retaliation, Betz had to

show that she participated in a protected activity, that

1]

DHS treated her in a manner that was materially

adverse, and that there was a causal relationship

between the two. Pet. App. Ilda. See Burlington

Northern & Santa Fe Ry. v. White, 548 US. 53, 68

(2006): see also Gomez-Perez v. Potter, 128S. Ct. 1931,

1936 (2008)

The Fighth Circuit upheld the district court's

conclusion that Betz’s previous EEO discrimination

complaint in 1999 put her on notice of the 45-day

requirement under 29 C.F.R. Sec. 1614.105(a)(1) for

filung a retaliation complaint after each act of

retaliation. Pet. App. 14a. Betz contended the

exception to the deadline under 29 C.F.R. Sec.

1614.105(aX2) should have extended this deadline

because she was unaware that the same deadline

applied to reporting acts of retaliation by Cangemi to

an EEO counselor. Betz’s affidavit averred that she

was not aware of the 45-day notice requirement for

retahation and she received no training or information

about retaliation.

This Court should recognize an exception to the

requirement of reporting acts of retaliation to an FEO

counselor within 45-days of the retaliation in cases of

retaliation-based constructive discharge by federal

employees such as Betz. The reasons for such an

exception are many

First, retaliation is not specifically enumerated in

29 C.F.R. Sec. 1614.105(a). Betz’s 1999 EEO complaint

focused on acts of discrimination by Cangemi and not

retaliation. Indeed, the applicability of retaliation

claims to federal employees under 29 U.S.C. Sec.

633(a) was not clarified until this Court’s decision in

Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008). The

12

district court presumed its application. The Court

should not create a system whereby all federal

employees who pursue an EEO discrimination

complaint will be strictly accountable for procedural

requirements for filing all subsequent retaliation

claims. The provisions of 29 C.F.R. Sec. 1614.105(a)(2)

acknowledge that employees may not be aware of the

45-day reporting requirement for acts of

discrimination or personnel matters. This was the

situation with Betz

In the case of a personnel action, the requirement

is to contact the EEO counselor within 45-days of the

effective date of the action. 29 C.F.R. Sec

1614.105(a)(1)(emphasis added). In a retaliation-based

constructive discharge, the 45-days can easily pass

before the employee has any sense that inaction is

»

retaliatory. For example, in Betz’s case, Cangem! was

required by government regulation to annually

conduct her performance appraisal and review her

position to ensure it accurately described her duties

and responsibilities. When it was not done, she

inquired. She received a variety of excuses from

Cangemi for not conducting her performance

appraisal, performance work plans and responding to

requests for desk audits and upgrades. Sometimes she

received no response. The pattern of inaction and non

responsiveness by Cangemi to Betz’s requests to

undertake standard personnel practices for her

position occurred without an “effective date” of action

but continued over a period of time. He did not make

contact with personnel employees about initiating desk

audits or upgrades. There were no specific personnel

actions taken, such as a demotion or direct denial of an

upgrade or desk audit, from which to demarcate

discrete acts. Many times there was simply no

13

response by Cangemi to Betz’s requests for her

performance appraisal, a desk audit of her position, or

an upgrade of her position and pay scale. Her duties,

meanwhile, increased in volume and complexity.

This differed from the scenario posed by the district

court, citing Ledbetter for the proposition that people

know when they don’t get paid. Pet. App. 46a. The

Fighth Circuit, in turn, characterized all of the pre

September 21 matters that prevented her from

obtaining additional compensation as “discrete acts

that required her to contact an EEO counselor within

45 days of their occurrence” analogizing them to acts

such as termination, failure to promote, denial of

transfer, and refusal to hire discussed in National R. R.

Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).

Pet. App. 15a. Cangemi’s retaliatory actions and

inactions were not “personnel actions” with “effective

dates” as contemplated in 29 C.F.R. Sec. 1614.105(a){2)

and the exception to the 45-day requirement for

contacting an EEO counselor should apply. The Court

made no distinction between events pertaining to

retaliation and_ retaliation-based constructive

discharge in affirming the district court’s barring pre-

September 21 matters. Pet. App. 15a.

The lower Courts’ rulings rewarded DHS for

Cangemi’s actions in delaying any response or giving

no response to Betz’s requests that simply let the 45

days for filing an EEO charge run out. This scenario

differs significantly from an employee seeking a

specific promotion, or being transferred or demoted,

where the personnel action is not contingent on the

occurrence of other events. The Courts below rejected

Betz’s equitable tolling and continuing violations

arguments. Pet. App. 15a, 45a.

14

Circuit courts addressing constructive discharge

require employees to try to work out any differences or

address the circumstances creating the intolerable

conditions before resigning. See e.g., West v. Marton

Merrell Dow, Inc. , 54 F.3d 493, 498 (8™ Cir. 1995\“An

employee who quits without giving her employer a

reasonable chance to work out a problem is not

constructively discharged”); Jones v. Fitzgerald, 285 F.

3d 705, 715-16 (8" Cir. 2002)(“A plaintiff must take

affirmative steps short of resigning that a reasonable

employee would take to make her conditions of

employment more tolerable”); Clowes v. Allegheny

Valley Hospital, 991 F. 2d 1159, 1161 (3d Cir. 1993);

Nance v. Goodyear Tire & Rubber Co., 527 F. 3d 539,

554-55 (6" Cir. 2008); Wolf v. Northwest Indiana

Symphony Society, 250 F. 3d 1136, 1143 (7™ Cir. 2001);

Woodward v. City of Worland, 977 F. 3d 1392, 1402

(10 Cir. 1992); Garner v. Wal-Mart Stores, Inc. , 807 F.

2d 1536, 1539 (11 Cir. 1987). Strict application of 29

C.F.R. Sec. 1614.105(ax1) to retaliation-based

constructive discharge claims acts to eviscerate such

claims for federal employees.

This Court observed in the Title VII context that

the anti-retaliation provision protects an individual

not from all retaliation but from retaliation that

produces an injury or harm. Burlington Northern vu.

White, 548 U.S. at 67. Retaliation-based constructive

discharge claims are distinct from discrimination

claims under 29 C.F.R. Sec. 1614.105(ax(1). In

Burlington Northern this Court held that a plaintiff

must show that a reasonable employee would have

found the challenged action materially adverse, which

in this context, means it might well have dissuaded a

reasonable worker from making or supporting a charge

of discrimination. Burlington Northern, 548 U.S. at 68.

Employees unable to determine within 45-days if they

are the victim of retaliation as compared to

discrimination or harassment will lose the claim under

the Highth Circuit’s holding. Shrewd supervisors like

Cangemi, a lawyer, can wait 45 days before retaliating

by contriving reasons for not conducting performance

reviews and performance work plans, which would

have given her opportunity for additional

compensation, refusing to respond to requests for desk

audits, refusing to give her opportunity for upgrades

that would have increased her salary, and piling on

additional job duties including those of higher grade

employees without additional compensation, or

otherwise retaliating.

The ADEA’s substantive provision and its anti-

retaliation provision are not coterminous. See e.Z.,

Burlington Northern, 548 U.S. at 67. The substantive

provision seeks to prevent injury to individuals based

on who they are, i.e., their status. 548 U.S. at 63. The

anti-retaliation provision seeks to prevent harm to

individuals based on what they do, i.e., their conduct.

Id. The scope of the anti-retaliation provision extends

beyond workplace-related or employment-related

retaliatory acts and harm. 548 U.S. at 67. A plaintiff

must show that a reasonable employee would have

found the challenged action materially adverse, “which

in this context means it well might have ‘dissuaded a

reasonable worker from making or supporting a charge

of discrimination”. 548 U.S. at 68 (citations omitted).

Betz’s retaliation-based constructive discharge was

the cumulative total of retaliatory events by Cangemi

that extended well past the 45-day limits set by the

lower courts. Federal employees like Betz may not be

able to determine if they've been retaliated against

16

within 45 days. Limiting the scope of retaliation-based

constructive discharge claims to within 45 days of the

occurrence of the underlying events will effectively

emasculate federal employees from such claims. Betz

should have been permitted to proceed with an

extended scope of claim as allowed by 29 C.F.R. Sec.

1614.105(aX(2). A decision by this Court is needed to

clarify the scope of retaliation-based constructive

discharge claims and exceptions in 29 C.F.R. Sec.

1614.105(a)(2) for federal employees under the ADEA

il. Review Should be Granted to Address the

Standard for a_ RKetaliation-Based

Constructive Discharge Claim by a Federal

Employee Under the ADEA, 29 U.S.C. Sec.

633(a).

The Fighth Circuit strayed drastically from the

standerd for constructive discharge established by this

Court and other circuit courts. The Appeals Court held

that Betz’s working conditions were not intolerable as

a matter of law. Pet. App. 15a. While seemingly

applying the proper standard, the Court held that “As

we have said, DHS paid Ms. Betz about $39,000

annually, and she did not contend that the agency or

Mr. Cangemi required her to perform duties or to work

hours that were in any way inhumane or

unacceptable”. Pet. App. 16a. The Fighth Circuit

unilaterally created a higher burden of proof for

retaliation-based constructive discharge claims for

federal employees by requiring proof of conditions that

are inhumane or unacceptable.

In Pennsylvania State Police v. Suders, 542 US

129, 134 (2004), this Court held in a Title VII sexual

harassment case in order to establish constructive

17

discharge, the plaintiff must also show that the

abusive working environment became so intolerable

that her resignation qualified as a fitting response.

Federal circuit courts have adopted a reasonable

person standard in constructive discharge cases to

assess whether the employee's resignation was proper

under the circumstances. See e.v., Tatom v. Georgia

Pacific Corp., 228 F. 3d 926, 932 (8 Cir. 2000);

Feliciano-Hill v. Principi, 439 F.3d 18, 27 (ist Cir.

2006); Flaherty v. Metromail Corp., 235 F.3d 133, 138

(2d Cir. 2000); Duffy v. Paper Magic Group, Inc., 265

F.3d 163, 167 (3d Cir. 2001); Heiko v. Colombo Sav.

Bank, 434 F.3d 249, 262 (4th Cir. 2006); Haley v.

Alliance Compressor LLC, 391 F.3d 644, 649-50 (5th

Cir. 2004); Goldmeier v. Allstate Ins. Co. , 337 F.3d 629,

635 (6th Cir. 2003); Williams v. Waste Management of

Illinois, 361 F.3d 1021, 1032 (7th Cir. 2004); Poland v

Chertoff, 494 F.3d 1174, 1184 (9th Cir. 2007); Potts v.

Davis County, 551 F.3d 1188, 1194 (10th Cir. 2009);

Bryant vu. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009);

Veitch v. England, 471 F.3d 124, 130 (D.C. Cir. 2006)

Requiring federal employees like Betz to show

conditions were “inhumane” created a new standard

for retaliation-based constructive discharge not

followed in other circuit courts. “Inhumane” has been

equated with severe abuse more extreme than an

individual being beaten unconscious and sustaining

scars and a physical deformity. See e._g., Reyes-Morales

v. Ashcroft, 435 F. 3d 937, 942 (8 Cir. 2006 Asylum

case). Federal employees should not be required to

show they have been tortured or kept in inhumane

conditions to prove constructive discharge. This

wrongfully elevates constructive discharge to

unconscionable persecution and is not the correct legal

standard. See Premratananont v. South Suburban

18

Park & Recreation District, No. 97-1090, 1998 WL

211543, at *2 (10% Cir. April 30, 1998Xciting

Woodward v. City of Worland, 977 F. 2d 1392, 1402

(10" Cir. 1992)\Constructive discharge claims may

also be based on other types of intolerable working

conditions such as retaliatory conduct for making a

complaint of discrimination). This Court should review

the standard for what is needed to show intolerable

conditions for a reasonable employee for a retaliation-

based constructive discharge articulated by the Eighth

Circuit.

The Eighth Circuit analyzed Betz’s retaliation-

based constructive discharge claim by requiring direct

evidence (e.g., inhumane treatment) to create

intolerable working conditions. This herculean

standard will most likely never be met in a retaliation

based constructive discharge claim by federal

employees. If inhumane conditions did exist, this

standard would require the conditions to continue

after the employee gave the Government a chance to

work out the problem in order to maintain a claim.

Direct evidence alone, however, is unnecessary for

constructive discharge based on cumulative acts of

retaliation. Instead, retaliation by delaying

performance appraisals and performance work plans,

delaying and ignoring responses to the employee’s

inquiries about them, delaying and refusing to respond

to inquiries for desk audits and upgrades, piling on

additional job duties without hope of increased

compensation or grade increase, and other acts by a

supervisor that lead to working conditions becoming

intolerable will accumulate in over 45 days to become

a constructive discharge and should be fully actionable

under the ADEA

19

Betz presented evidence that her pay was

unacceptable for her duties. She performed higher

grade level duties than her own for several years. Her

requests for performance appraisals, upgrades and

desk audits were ignored or given flimsy excuses. The

DHS’ failure to follow mandatory regulations covering

these areas for Betz was not mentioned by the Court.

Cangemi, the SAC, went to the break room the

afternoon on October 29, 2003, to confront her face to

face. She felt threatened. Standing two feet away, he

told her that her request for an upgrade “wasn’t going

to happen”. She realized she would not be upgraded

like other employees under any circumstance and

resipned.

The Eighth Circuit adopted the Government’s

mantra that Betz’s intolerable working conditions

essentially amounted to her complaining of being

“overworked and underpaid”. Pet. App. 11a. The Court

found no clear error and that the district court was not

required to find that her performing her duties at GS-7

pay was not objectively intolerable. Betz had the same

GS-7 grade since 1999 despite the office and her duties

growing from three states to five plus Customs in

2003. She performed FF'MS duties performed by GS-11

employees and trained Sylvia Seamans on FFMS. The

lower courts noted there was no evidence of Seamans’

age. Pet. App. 8a. Proof that Seamans was younger

than Betz, however, was unnecessary to show Betz’s

different treatment because of age. See e.g., Oncale v.

Sundowner Offshore Serus., Inc., 523 U.S. 75

(1998\employee permitted to prove an adverse

employment action because of sex without evidence

that employees of the opposite sex were treated

differently). Betz was the only employee in her position

in the St. Paul office. Comparison to higher grade

20

employees performing similar duties in the office was

relevant to show disparate treatment. Comparison to

Oswald in the Omaha office performing nearly

identical duties was likewise probative of

discrimination. As is Oncale, Betz need only show she

was discriminated and retaliated against because of

her age and EEO activity. No evidence of other

employees performing higher grade level duties than

their pay was introduced. There was no testimony by

others who felt they were “overworked and underpaid”.

Requiring federal employees to prove inhumane

treatment to show retaliation based constructive

discharge, or constructive discharge in general, allows

employers to pile on higher grade level duties to older

employees who complain about discrimination and not

allow them to be fairly paid, or be evaluated, the same

as others. The requirement of inhumane treatment

creates a herculean burden that transforms

retaliation-based constructive discharge claims into

claims of near brutality in order to prevail. Federal

employees should not have to face imhumane

treatment before resigning. This burden does little to

advance a safe, professional, and tolerable work

environment for federal employees. The law must

preserve the safety and civility of the workplace for

federal employees who complain about retaliation by

the employer and this Court should review the issue in

the context of retaliation-based constructive discharge.

21

lil. Review is Necessary to Establish

Procedural Fairness for Enforcing Pre-

Trial Rulings By the District Court

Barring Evidence of Events Before the 45-

day Filing Period Under 29 C.F.R. Sec.

1614.104(a)(1) Before September 21, 2003,

But Using Events From the Barred Period

to Find No Age Discrimination While

Excluding Evidence From the Same

Period.

The Eighth Circuit affirmed the district court’s

finding that DHS did not discriminate against Betz

because of her age. Pet. App. 10a. In finding no age

discrimination, the district court found that Betz had

been upgraded in 1997 at age 59 and in 1999 at 61.

Pet. App. 28a. Oddly, the court cited Fed. R. Civ. P. 50

in granting judgment for the DHS. Pet. App. 24a. The

court found it “significant” that Betz had not shown

how she was being discriminated against at age 63 in

2003 when she hadn’t been at 59 and 61. Jd. The court,

however, unfairly excluded events from before 2003

while using events from the same period against Betz.

The Eighth Circuit found specious Betz’s contention

that the court’s remark about evidence in the midst of

the summary judgment hearing affected the court’s

rulings and decision at trial. Pet. App.9a-10a. This was

premised on admission of limited evidence from pre-

September 21 and the court’s limited inquiry about

Betz’s duties in 1999. Pet. App. 10a.

The district court’s ruling that Betz could not offer

evidence of discriminatory or retaliatory acts prior to

the 45-day period before September 21, 2003 was not

reversed at any time by the district court. See Pet.

App. 46a. Once the court makes a definitive ruling on

22

the record admitting or excluding evidence, either at or

before trial, a party need not renew an objection or

offer of proof to preserve a claim of error for appeal.

See Fed. R. Evid. 103(aX(2). Betz was not required to

continue to offer evidence from the prohibited period

that was barred by the court’s previous ruling. Indeed,

when she attempted to offer such evidence, it was

largely excluded as irrelevant by the district court.

The summary judgment ruling excluding evidence

of discriminatory and retaliatory events before

September 21, 2003 remained in place and was

acknowledged at trial. Pet. App. 24a. The court did not

rule on motions in limine filed by the parties. The

district court recognized the summary judgment ruling

and cited to Ledbetter in its trial ruling. Jd. The

prejudicial exclusion of evidence of events of

discrimination and retaliation by the ruling was

compounded by the exclusion of relevant evidence Betz

offered at trial. The Eighth Circuit did not address

Betz’s arguments that the district court excluded

relevant evidence. Instead, the Court characterized the

summary judgment ruling as an “alleged evidentiary

ruling” and concluded that the district court “did not

exclude evidence that Ms. Betz did not offer” and

therefore could not have erred. Pet. App. 10a

At trial, the district court sustained the

Government’s objections and excluded evidence of

events before 2003 offered by Betz, including:

1) Betz’s job performance appraisals from 1996

through 1999. Excluding this evidence

foreclosed opportunity for follow up and was

relevant to Cangemi’s discriminatory and

retaliatory motive after her EEO charge in 1999

23

and comparison to his failure to appraise her

thereafter.

2) Requests for upgrades in her position before

2003 was excluded. The court deemed this

evidence irrelevant. This precluded inquiring

why Cangemi failed to seek upgrades from Betz

after her EEO Charge in 1999 as well as

conduct performance appraisals and

performance work plans. This was relevant to

Betz’s claims and working conditions after her

upgrade requests. Her upgrades in 1997 and

1999 were cited by the court as evidence she

was not discriminated against in 2003. The

ruling precluded inquiry into her upgrade in

1999 as it related to her EEO charge. It

precluded other questions relating to Cangemi’s

reasons for not pursuing upgrades for Betz

before 2003.

3) Al Oswald’s performance appraisal stating the

reasons for his promotion to GS-9 on May 18,

2003 was because of his “superior performance

and qualifications” was excluded as irrelevant.

Oswald was a 50-year old Betz used as a

comparator. Oswald received a pay increase and

promotion when the Government contended

there was no money for upgrades.

4) Exhibit 105 relating to Betz’s job in 1998 was

excluded as irrelevant to the events leading to

the constructive discharge in 2003.

The exclusion of this evidence, while referring to

Betz’s upgrades in 1997 and 1999 at 59 and 61 to show

she was not discriminated against, was extremely

24

prejudicial. Betz was unable to present evidence to

rebut these findings. Betz was not responsible for the

court’s general questions about her duties in 1999 that

had little to do with discriminatory animus. The

court’s rulings set the parameters for evidence for

events in 2003. The court allowed background evidence

of Cangemi’s inquiry of Betz about her retirement

plans in 2001 that were dismissed as “medium

conjyunct”. Pet. App. 3la. This Court should recognize

that a district court abuses its discretion when its

evidentiary rulings are made arbitrarily in light of its

pretrial ruling barring evidence to deny a plaintiff fair

opportunity to present evidence of discrimination. See

White v. Honeywell, Inc., 141 F. 3d 1270, 1274 (8 Cir.

1998); Hindman v. Transkrit Corporation, 145 F. 3d

986, 993, fn. 26 (8 Cir. 1998\(“A plaintiffs ability to

prove discrimination indirectly, circumstantially, must

not be crippled by evidentiary rulings that keep out

probative evidence because of crabbed notions of

relevance or excessive mistrust of juries”), citing Estes

v. Dick Smith Ford, Inc., 856 F. 2d 1097, 1103 (8 Cir.

1988). Review is necessary to recognize the abuse of

discretion standard for federal district courts when

evidentiary rulings are arbitrarily applied to deny

plaintiffs fair opportunity to present evidence of

discrimination in ADEA trials.

20

IV. Review Should Be Granted When the

Court of Appeals Makes Findings of Fact

on a Federal Employee’s Retaliation-Based

Constructive Discharge Claim That Has

Been Previously Dismissed by Summary

Judgment And Was Not Tried Before The

District Court.

The Eighth Circuit noted that “... Betz’s EEO

charge was timely as to her retaliation-based

constructive discharge claim, which the court does not

seem to have addressed separately, but we conclude

that her working conditions were not intolerable as a

matter of law.” Pet. App. 15a. The Court observed

“Although an employee would certainly not want to

work for a supervisor who retaliated against her for a

now-moot discrimination charge filed four years ago,

we do not believe those circumstances would make the

job intolerable. As we have said, DHS paid Ms. Betz

about $39,000 annually, and she did not contend that

the agency or Mr. Cangemi required her to perform

duties or to work hours that were in any way

inhumane or intolerable.” Pet. App. 16.

At the onset, the Court of Appeals wrongly

presumed that the trial covered Betz’s retaliation-

based constructive discharge claim and the district

court overlooked it. Pet. App. 15a. There was

admittedly no evidence of Betz’s 1999 EEO charge at

the trial that, for the most part, was restricted to

events in 2003. Betz’s 1999 EEO complaint was

addressed in the DHS’ summary judgment motion and

the district court’s ruling. Pet. App. 45a (“Therefore, to

the extent the alleged wage discrimination and

constructive discharge maybe considered retaliation,

plaintiffs conduct prior to September 21, 2003, this

26

Court considers the claims to be time-barred”). The

claim was not addressed by the district court with

findings of fact in the post-tnal order. Pet. App. 22a-

46a.

While Betz’s 1999 EEO charge was part of the

record at summary judgment, the panel’s decision

improperly portrayed it as though it was presented at

trial. The Appeals Court did not rule on the summary

judgment of Betz’s retaliation-based constructive

discharge claims. Significantly, the district court did

not make findings of fact or conclusions of law about

the claim after trial. Pet. App. 22a-36a. The Court’s

characterization and ruling regarding Betz’s

retaliation-based constructive discharge claim is not

supported by the trial record.

The standard governing appellate review of a

district court’s finding in discrimination cases is

clearly erroneous as articulated in Federal Rule of

Civil Procedure 52(a). Anderson v. City of Bessemer

City, N.C., 470 U.S. 564, 573,105 S.Ct. 1504, 1511, 84

L.Ed. 2d 518 (1985). This standard does not entitle a

reviewing court to reverse the finding of the trier of

fact simply because it is convinced that it would have

decided the case differently. Jd. The reviewing court

oversteps the bounds of its duty under Rule 52(a) if it

undertakes to duplicate the role of the lower court. Jd.

“In applying the clearly erroneous standard to the

findings of a district court sitting without a jury,

appellate courts must constantly have in mind that

their function is not to decide factual issues de novo”.

Anderson, 470 U.S. at 573,105 S. Ct. at 1511, citing

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

U.S. 100, 123, 89 S. Ct. 1562, 1576, 23 L.Ed. 2d 129

(1969).

2]

In a bench trial, the district court is required to

find the facts specifically and state separately its

conclusions of law. King v. United States, 553 F. 3d

1156, 1161 (8 Cir. 2009). The court must provide

sufficient findings of fact to enable the appeals court to

review its decision. Jd. The appeals court may not

make these findings of fact or exercise discretion in the

district court’s stead. Jd. Other federal courts of

appeals have reiterated the principle that an appellate

court should not make findings of fact in the district

court’s stead. See, e.g., Atlantic Thermoplastics Co.,

Inc. v. Faytex Corp., 5 ¥.3d 1477, 1479 (Fed. Cir. 1993)

(“Rule 52(a) makes clear the separate and distinct

roles of the trial and the appellate court. This court

must review factual findings made by the district

court; it may not guess at findings left unmade. Fact-

finding by the appellate court is simply not

permitted”); McClain v. Lufkin Indus., Inc., 519 F.3d

264, 277 (5th Cir. 2008) (“The reviewing court

oversteps the bounds of its duty under Rule 52(a) if it

undertakes to duplicate the role of the lower court”)

(citing Anderson v. City of Bessemer, 470 U.S. 564, 573

(1985)).

The absence of a trial ruling on the retaliation-

based constructive discharge claim was not merely an

oversight, but the result of the district court’s

dismissal of the claim by its summary judgment ruling

barring all claims and acts pre-September 21, 2003.

Under the district court’s ruling, there could be no

retaliation for events outside of the claim period of

September 21 to November 5, 2003. Betz’s 1999 EEO

complaint was considered too remote by the district

court to fall within the claims period and dismissed the

claim at summary judgment. Pet. App. 45a. The

absence of any mention of the retaliation claim in

28

closing argument or a ruling on the claim after trial

underscored this point.

Because the Eighth Circuit improperly made

findings of fact on Betz’s retaliation-based constructive

discharge claim when the district court did not make

findings of fact on the claim that it dismissed at

summary judgment, while finding that Betz’s EEO

charge for the claim was timely filed, the claim should

be remanded to the district court for trial on the

merits.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Dated: February 2, 2010

Respectfully submitted,

Stephen Charles Fiebiger

STEPHEN C. FIEBIGER &

ASSOCIATES, CHTD

2500 West County Road 42

Suite 190

Burnsville, MN 55337

(952) 746-5171

fieblaw@earthlink.net

Attorney for Petitioner

APPENDIX

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix E:

Appendix F:

Appendix G:

i

INDEX TO APPENDICES

Eighth Circuit Opinion

(August 28, 2009) ..... la

District Court Judgment

(July 8, 2008) ................. 19a

District Court Order re judgment as a

matter of law

ST nT. ss -50- 6 6. 5.0% 4.0.0 '08 Zla

District Court, Transcript of July 2,

2008 Proceedings re findings of fact

and conclusions of law .......... 22a

District Court written Order re

Motion for Summary Judgment

eo Ss 39a

District Court Transcript of May 31,

2007 Proceedings re Summary

Judgment Oral Order .......... 41a

Eighth Circuit Order denying Petition

for Rehearing and Rehearing en banc

(November 4, 2009) ........ ... 48a

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 08-3027

[Filed August 28, 2009]

Marlene Betz,

Appellant,

Michael Chertoff, Secretary,

Department of Homeland Security,

)

)

)

)

)

)

)

)

)

Appellee. )

)

Appeal from the United States

District Court for the

District of Minnesota.

Submitted: June 11, 2009

Filed: August 28, 2009

Before SMITH, ARNOLD, and SHEPHERD, Circuit

Judges.

2a

ARNOLD, Circuit Judge.

After leaving her job with the Department of

Homeland Security, Marlene Betz brought an action

against DHS under the Age Discrimination in

Employment Act (ADEA). See 29 U.S.C.A. § 633a. She

claimed that Mark Cangemi, her _ supervisor

throughout her employment, denied her upgrades and

related salary increases on several occasions and

eventually constructively discharged her because of

her age and in retaliation for her having filed an EEO

charge alleging age discrimination. The district court’

granted, in part, DHS’s summary judgment motion for

failure to comply with administrative deadlines. The

court then held a bench trial on Ms. Betz’s claim that

she was constructively discharged because of her age

and entered judgment for DHS on that claim. Ms. Betz

appeals and we affirm.

In 1995, Ms. Betz began working in the St. Paul

office of the Immigration and Naturalization Service as

a secretary at the GS-5 pay-grade level. Her

supervisor, Mr. Cangemi, was the assistant district

director for investigations. In 1997, INS upgraded Ms.

Betz from a GS-5 to a GS-6 after having conducted

what is called a desk audit of her job. (The government

may upgrade an employee’s position without requiring

the employee to compete for a different job by

conducting a desk audit, in which the government

reviews the tasks that the employee is performing to

determine whether she is properly classified.) Ms. Betz

requested a desk audit in 1998, and as a result was

' The Honorable James M. Rosenbaum, United States District

Judge for the District of Minnesota.

3a

upgraded the next year to a GS-7. But before that

upgrade, in August, 1999, Ms. Betz had filed an EEO

complaint asserting that she had not received the

requested desk audit because of her age; unbeknownst

to her, Mr. Cangemi had already approved her desk

audit request. After 1999, Mr. Cangemi ceased giving

Ms. Betz annual performance appraisals, did not

revise her job description, and denied her later

requests for an increase in her GS-7 pay-grade level

(though she received scheduled step increases within

that level). Ms. Betz resigned in November, 2003,

shortly after Mr. Cangemi refused her last upgrade

request.

In early 2003, when the Department of Homeland

Security was created, the Bureau of Customs

Enforcement and INS merged to form Immigrations

and Customs Enforcement (ICE), a division of DHS.

The INS St. Paul office, where Ms. Betz worked, had

been responsible for immigration investigations in

three states. When DHS was formed, that office

acquired responsibility for two additional states and

Customs matters and became a_e so-called

Special-Agent-in-Charge (SAC) Office of ICE, with Mr.

Cangemi as the acting SAC. Ms. Betz remained the

only administrator-secretary in the office, and the

volume and complexity of her workload increased.

According to Ms. Betz, her new duties included those

that GS-11 employees performed and thus she should

have been upgraded from GS-7 to GS-11.

Ms. Betz asked Mr. Cangemi for an upgrade in the

spring of 2003 and he said that he would check into it.

When he did not mention it again, she again asked

him on October 1; she mentioned her additional duties

and told Mr. Cangemi that if she did not get an

4a

upgrade she would be forced to retire. He responded

that there was nothing that he could do. She brought

up the topic for the last time on the morning of 29

October. Mr. Cangemi testified at trial that he told her

“categorically ... that it was not going to happen.” Ms.

Betz testified, in turn, that she felt that given her

workload and “not seeing any opportunity of being

advanced in grade or being compensated for that it

didn’t leave a whole lot of opening for me to do. ... it

was either continue working at the grade I was being

paid, doing the level of work I was doing, or retiring.

And I just felt I had no options.” She told Mr. Cangemi

at that time that she was going to retire. She was

sixty-five years old.

That afternoon, Mr. Cangemi came into the break

room while Ms. Betz was there. She testified that he

told her that there was nothing that he could do about

her “demands” for an upgrade, and that if she was

upset, she should go home and return when she

completed her paperwork for retirement. She testified

that she felt intimidated by his presence. At trial, Mr.

Cangemi testified that Ms. Betz seemed upset when he

saw her in the break room and that he told her that

she could go home, but he denied mentioning her

completing any paperwork.

Ms. Betz filed this action, contending that because

of her age and in retaliation for her 1999 EEO

complaint, Mr. Cangemi failed to upgrade her so that

she would be paid commensurate with her duties and

that his failure to do so resulted in her constructive

discharge.

5a

I.

Ms. Betz argues that the district court erred in

several ways in entering judgment for DHS following

a bench trial on her claim that she was constructively

discharged because of her age. We review the district

courts factual findings, including the ultimate

determination of whether discrimination occurred, for

clear error, and its legal conclusions de novo. See Fed.

R. Civ. P. 52(a); Littleton v. Pilot Travel Centers, LLC,

568 F.3d 641, 647 (8th Cir. 2009); Tadlock v. Powell,

291 F.3d 541, 546 (8th Cir. 2002). Rule 52(a)(6) directs

us to “give due regard to the trial court’s opportunity

to judge the witnesses’ credibility.” At the close of the

evidence, the district court (citing Fed. R. Civ. P. 50,

which governs judgment as a matter of law in a jury

trial) concluded that Ms. Betz did not make out a case

of constructive discharge, but it also made factual

findings in support of its judgment for DHS. We review

the court’s findings for clear error and need not

determine whether the evidence could have supported

a judgment in favor of Ms. Betz.

A.

In her brief, Ms. Betz first contends that the

district court erred in finding that she was not

discriminated against on account of her age. She

begins by referring to evidence that she says shows

that Mr. Cangemi gave false reasons for denying her

an upgrade, and that a factfinder could infer from

their falsity that the given reasons were a pretext for

age discrimination. See Loeb v. Best Buy Co., 537 F.3d

867, 873 (8th Cir. 2008). We agree that an employer’s

false explanation may support — though it does not

require — an inference of discrimination. Reeves v.

Sanderson Plumbing Prods., Inc.,530 U.S. 133, 146-47

(2000). But the question of what inferences the

6a

evidence could have supported is at best tangential to

our limited standard of review, which requires us to

accept the district court’s finding that Mr. Cangemi did

not discriminate against Ms. Betz on account of her

age unless, after having reviewed the evidence, we are

“left with the definite and firm conviction that a

mistake has been committed.” United States v. United

States Gypsum Co., 333 U.S. 364, 395 (1948); Littleton,

568 F.3d at 647; see Fed. R. Civ. P. 52(a). We are not

convinced that the district court made a mistake in

failing to infer an impermissible discriminatory

animus on Mr. Cangemi’s part from this evidence.

Ms. Betz also relies on a conversation that she had

with Mr. Cangemi as evidence that he discriminated

against her because of her age. In July, 2001, Mr.

Cangemi asked Ms. Betz about her retirement pians

shortly after a co-worker about her age had retired.

She testified that the inquiry upset her and said that

she was going to see if a buyout was available. Mr.

Cangemi did not bring up the topic again. The court

found that “[iJn the world, people ask each other w.rat

their plans are for the future,” and that Mr. Cangemi’s

“simple inquiry ... was not an_ indication of

discrimination based on age.” The court added that

although age “cannot be permitted to be the

determining factor, {i]n this case, there is no indication

that this was a determining factor of anything.” We

have held that “[rleasonable inquiries into an

employee’s retirement plans do not permit an

inference of age discrimination,” Lewis v. St. Cloud

Univ., 467 F.3d 1133, 1137 (8th Cir. 2006) (internal

quotation marks and citation omitted), and thus the

court’s failure to infer bias from Mr. Cangemi’s

question cannot be clear error.

7a

Ms. Betz based her age discrimination claim, in

part, on her assertion that similarly situated younger

employees were classified as GS-11, as compared to

her GS-7 grade. To prove discrimination by comparing

herself to others, Ms. Betz had to show that the other

employees were younger than she and were similarly

situated “in all relevant respects.” See Forrest v. Kraft

Foods, Inc., 285 F.5a 688, 691-92 (8th Cir.2002). We

will overturn the district court’s finding that the

employees were not similarly situated only if it is

clearly erroneous. See Hayes v. Invesco, Inc., 907 F.2d

853, 856 (8th Cir. 1990). To be similarly situated two

employees ordinarily must deal with the same

supervisor or the decision-maker must be the same in

both instances. See Morgan v. A.G. Edwards & Sons,

Inc., 486 F.3d 1034, 1043 (8th Cir. 2007). Ms. Betz

maintains that the district court’s approach to

determining whether an employee was comparable to

her “was too restrictive under the circumstances.”

Here the district court found, based on evidence in

the record, that Mr. Cangemi had no authority over

the allegedly similarly situated employees when their

GS-11 status was authorized. Al Oswald, one of the

employees whom Ms. Betz compared herself to, worked

in the Omaha, Nebraska, INS office. He was younger

than Ms. Betz when his supervisor chose him for a

GS-11 position. There was evidence that Mr. Cangemi

had nothing to do with that decision, and his office did

not even have authority over the Nebraska office at the

time. Ms. Betz argues that Mr. Oswald is nonetheless

similarly situated because by the time he began

working in the GS-11 position in Omaha, DHS had

been formed and Mr. Cangemi was in charge of a

district that included Nebraska. But the relevant

decision had already been made, and Ms. Betz has

8a

presented no evidence to show that Mr. Cangemi was

involved in, or even aware of, Mr. Oswald beginning

his GS-11 duties. We see nothing that would compel

the district court to deem him similarly situated to Ms.

Betz.

Ms. Betz also contended that her salary grade

should have been compared to that of Barbara [sic]

Seamans in the St. Paul office, whose pay-grade level

was GS-11. The district court stated that it did not

know Ms. Seamans’s age and Ms. Betz has not

indicated where we might find that information in the

record. Nor have we seen it. The district court found,

moreover, that Ms. Seamans was upgraded to GS-11

status before Mr. Cangemi had any authority over her,

and Ms. Betz has offered us no evidence to the

contrary. We see no basis for determining that the

district court clearly erred in finding that Mr. Oswald

and Ms. Seamans were not similarly situated in all

relevant respects to Ms. Betz.

We believe that Ms. Betz’s evidence of age

discrimination was, at best, weak, and we thus cannot

conclude that the district court clearly erred by finding

that none existed.

Ms. Betz argues in the alternative that the district

court erroneously excluded evidence and thereby

prevented her from showing that Mr. Cangemi

discriminated against her based on her age. But Ms.

Betz did not offer into evidence many of the documents

that she now contends were wrongly excluded. She

maintains that we may nevertheless address the

court’s “exclusion” of these items because she was

precluded from presenting them based on a statement

9a

that the court made during a hearing on DHS’s

summary judgment motion. We disagree.

As we have said, the district court granted partial

summary judgment to DHS based on Ms. Betz’s failure

timely to seek administrative remedies. Federal

employees generally must report discrimination to an

EEO counselor within 45 days of an occurrence. 29

CFR § 1614.105(a)(1). Because Ms. Betz did not

contact an EEO counselor about any of her claims in

this case until November 5, 2003, the court concluded

that she could not proceed with any claims based on

occurrences before September 21, 2003, which is 45

days before November 5. When ruling on the summary

judgment motion at the close of the hearing, the court

said that Ms. Betz “may not present any evidence of

discriminatory or retaliatory acts prior to the 45-day

period,” and Ms. Betz relies on these words to excuse

her failure to offer such evidence at trial. But in the

same sentence the court explained that “claims based

on evidence — such evidence are time barred,” and then

summarized its ruling: “Therefore, in conclusion, the

Court finds that summary judgment is appropriate

and is mandated to all claims prior to that date.” The

court’s written order followed. It provided that

“Plaintiff's claims based on allegedly discriminatory or

retaliatory events that occurred pricr to September 21,

2003 are untimely, and summary judgment for

defendant is granted as to these claims” and made no

reference to evidentiary rulings.

Particularly given the context, we find specious Ms.

Betz’s contention that the court’s remark about

evidence in the midst of the summary judgment

hearing excused her from offering evidence at trial

that she now says the court wrongly “excluded.” (We

10a

reject as well her related assertion that the court’s

purported prohibition on pre-September 21 evidence

was “particularly egregious” because the court relied

on events during that time period in its decision.)

Summary judgment hearings, of course, are not

ordinarily used to make pre-trial evidentiary rulings,

and we have seen nothing in the record to indicate that

either party requested or expected the court to make

such rulings. And Ms. Betz made no reference at trial

to the alleged evidentiary ruling. Instead, her conduct

during the trial was inconsistent with her present

assertion that the court had prohibited her from

presenting evidence of pre-September 21 occurrences:

She offered and the district court admitted evidence of

some matters that occurred during that time period,

and the court itself asked her what duties she had

performed in 1999. Because the district court simply

did not exclude evidence that Ms. Betz did not offer,

the court plainly could not have erred. In addition, the

material that Ms. Betz contends was wrongly excluded

contains little or no evidence that is even related to the

question of discriminatory animus.

We therefore conclude that the district court did

not err in finding that DHS did not discriminate

against Ms. Betz because of her age.

B.

Even if the court had erred in finding that DHS did

not engage in age discrimination, Ms. Betz would not

have been entitled to relief because she has not

established that the court erred in finding that she

was not constructively discharged. To make out a case

of constructive discharge, Ms. Betz had to show that a

reasonable person would have found her working

conditions intolerable, and that Mr. Cangemi intended

lla

to make her resign or, at a minimum, that her

resignation was reasonably foreseeable given the

conditions under which she was working. Reedy uv.

Quebecor Printing Eagle, Inc., 333 F.3d 906, 910 (8th

Cir. 2003).

“The intolerability of working conditions is judged

by an objective standard,” and to prevail on a

constructive discharge claim, a plaintiff must show

that his or her “working conditions were rendered so

objectionable that a reasonable person would have

deemed resignation the only plausible alternative.”

Tatom v. Georgia-Pacific Corp., 228 F.3d 926, 932 (8th

Cir. 2000). To prevail on appeal, Ms. Betz must show

that the district court clearly erred in finding that her

working conditions were not intolerable. Cf. Tadlock v.

Powell, 291 F.3d 541, 547 (8th Cir. 2002).

As the DHS observes, Ms. Betz essentially argues

that her employment conditions were intolerable

because she was overworked and underpaid. Although

we can envision circumstances in which an employee

must do so much work for so little compensation that

the working conditions become intolerable, especially

when the conditions are imposed for discriminatory

reasons, we do not think that the court clearly erred in

finding that Ms. Betz’s conditions were not intolerable.

We do not believe that the district court was required

to find that performing Ms. Betz’s duties in return for

her GS-7 salary (about $39,000 annually when she

resigned) was objectively intolerable.

Not surprisingly, none of the constructive-discharge

cases that Ms. Betz cites in her brief is based on

inadequate compensation: The plaintiff in Wright v.

Rolette County, 417 F.3d 879, 886-87 (8th Cir. 2005),

12a

cert. denied, 546 U.S. 1173 (2006), claimed that she

was forced to quit because of a hostile work

environment, a frequent basis for constructive

discharge claims, see, e.g., Nichols v. American Natl

Ins. Co., 154 F.3d 875 (8th Cir. 1998); Delph v. Dr.

Pepper Bottling Co., 130 F.3d 349 (8th Cir 1997). (We

concluded in Wright, 417 F.3d at 886, that the

supervisors conduct, though “serious and

reprehensible,” did not as a matter of law create an

intolerable work environment.) Ms. Betz cites two

other constructive discharge cases, both brought under

the ADEA. In the first, we reversed a judgment for the

plaintiff because the record evidence could not support

a finding that the plaintiffs working conditions were

intolerable. Tatom, 228 F.3d at 931-32. The plaintiff

had quit rather than accept a 120-day suspension for

a safety violation. Id. at 930-31. As we observed in

Tatom, id. at 932, we have previously held that “such

things as loss of supervisory responsibilities, a feeling

of being unfairly criticized, dissatisfaction with work

assignments, and loss of pay are insufficient to

constitute a constructive discharge.”

Although we upheld a verdict for the plaintiff in

Smith v. World Ins. Co., 38 F.3d 1456, 1461-62 (8th

Cir. 1994), the final case that Ms. Betz cites, that case

presented circumstances far different from those

before us. We stated in Smith, id. at 1461, that “an

offer of early retirement constitutes a constructive

discharge when the choice is_ [between] early

retirement or continuing to work under intolerable

conditions, like the threat of termination without

benefits,” and held that the plaintiffs evidence

satisfied this standard. The plaintiff testified that his

employer “threatened to ‘turn the screws’ and ‘build a

file’ against [him] if he did not resign” and made clear

l3a

that he would not get benefits unless he took early

retirement. 7d. In addition, the individual who

convinced the plaintiff to resign had admitted to

another witness that he wanted to “get rid of” older

employees, including the plaintiff. Jd. at 1462.

The cases that Ms. Betz relies on are of no

assistance to her, and we conclude that the district

court did not clearly err in finding that her working

conditions were not objectively intolerable.

Il.

In her final point, Ms. Betz contends that the

district court erred in concluding that her retaliation

claims based on retaliatory events before September

21, 2003, were barred because her EEO charge was

untimely. We disagree.

To make out a claim of retaliation, Ms. Betz had to

show that she participated in a protected activity, that

DHS treated her in a manner that was materially

adverse, and that there was a causal relationship

between the two. See Burlington Northern & Santa Fe

Ry. v. White, 548 U.S. 53, 68 (2006); Littleton v. Pilot

Travel Ctrs., LLC, 568 F.3d 641, 643-44 (8th Cir.

2009); see also Gomez-Perez v. Potter, 1288S. Ct. 1931,

1936 (2008). She alleged that Mr. Cangemi retaliated

against her because of her 1999 EEO age

discrimination charge by refusing to give her annual

evaluations, which would have given her an

opportunity for additional compensation, and refusing

to give her upgrades that would have increased her

salary, and that these acts eventually caused her

constructive discharge.

l4a

A federal employee generally must contact an EEO

counselor “within 45 days of the date of the matter

alleged to be discriminatory.” 29 CFR § 1614.105(a)(1).

Ms. Betz first contacted an EEO counselor about the

alleged retaliation on November 5, 2003, and the

district court granted summary judgment to DHS on

claims based on retaliatory events that occurred more

than 45 days earlier. Ms. Betz relies, however, on one

of several exceptions to the deadline: Under

§ 1614.105(a)(2), the EEOC or the agency “shall extend

the 45-day time limit” if the employee shows that “she

was not notified of the time limits and was not

otherwise aware of them.” Ms. Betz asserted that

despite knowing about the deadline for reporting

discriminatory acts, she was unaware that she had to

report acts of retaliation to an EEO counselor. The

district court rejected her assertion: The court

observed that Ms. Betz had brought at least one

previous EEO charge and thus was well aware of the

general requirement for filing a timely EEO charge.

The court found that it was therefore likely that Ms.

Betz knew that she should contact an EEO counselor

if she believed that she was being retaliated against

for having filed an EEO charge. We do not believe that

the court clearly erred in finding that she was

sufficiently familiar with the 45-day time requirement

to be bound by it. We also note that Ms. Betz’s conduct

indicates that she did not distinguish between

discrimination and retaliation when filing an EEO

charge: In November, 2003, she first contacted an EEO

counselor about her contention that she had suffered

both discrimination and retaliation for the past three

years.

Ms. Betz also argues that her claim of retaliation

was not time-barred because it was based on a

l5a

continuing violation that did not end until after

September 21, 2003. The Supreme Court has held that

the continuing violation doctrine applies in hostile

work environment claims, where, although one

incident may not support a claim, the claim may be

supported by a series of incidents that occur over a

period of time, National R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 122 (2002), but Ms. Betz did not

bring a hostile environment claim. Under the Court’s

holding in Morgan, “discrete discriminatory acts are

not actionable if time barred, even when they are

related to acts alleged in timely filed charges.” Id. at

113. “Discrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire are easy

to identify. Each incident of discrimination and each

retaliatory adverse employment decision constitutes a

separate actionable ‘unlawful employment practice.’ “

Id. at 114. In her brief, Ms. Betz equates the denial of

an upgrade with a failure to promote, and we conclude

that the pre-September 21 matters that she contends

prevented her from obtaining additional compensation

are discrete acts that required her to contact an EEO

counselor within 45 days of their occurrence. She did

not do so and is therefore barred from bringing an

action based specifically on those occurrences.

We note that Ms. Betz’s EEO charge was timely as

to her retaliation-based constructive discharge claim,

which the court does not seem to have addressed

separately, but we conclude that her working

conditions were not intolerable as a matter of law. See

Tatom, 228 F.3d at 932. Virtually all viable

constructive discharge claims involve a hostile work

environment, which Ms. Betz does not allege was

present here. And even if we assume, without deciding,

that she could show that Mr. Cangemi engaged in the

16a

retaliatory acts that she alleges and that we can

consider those acts in assessing her constructive

discharge claim, we do not believe that she could make

out a case. Although an employee would -ertainly not

want to work for a supervisor who retaliated against

her for a now-moot discrimination charge filed four

years ago, we do not believe those circumstances would

make the job intolerable. As we have said, DHS paid

Ms. Betz about $39,000 annually, and she did not

contend that the agency or Mr. Cangemi required her

to perform duties or to work hours that were in any

way inhumane or unacceptable. In fact, she asserted

that others did similar work (but were paid more). Ms.

Betz has not shown that the district court committed

reversible error with respect to any of her retaliation

claims.

III.

The judgment of the district court is affirmed.

l7a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 08-3027

[Filed August 28, 2009]

Marlene Betz,

Plaintiff - Appellant

v.

Michael Chertoff, Secretary,

Department of Homeland Security,

Defendant - Appellee

Nee Ne eee ee”

Appeal from U.S. District Court for

the District of Minnesota - Minneapolis

(0:06-cv-00172-JMR)

JUDGMENT

This appeal from the United States District Court

was submitted on the record of the district court, briefs

of the parties and was argued by counsel.

After consideration, it is hereby ordered and

adjudged that the judgment of the district court in this

cause is affirmed in accordance with the opinion of this

Court.

18a

August 28, 2009

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

APPENDIX B

®&A0450 (Rev. 5/85) Judgment in a Civil Case

UNITED STATES DISTRICT COURT

District of Minnesota

Case Number: 06-cv-172-JMR-RLE

[Filed July 8, 2008]

Marlene Betz

V.

Michael Chertoff, Secretary, Department of

Homeland Security

Nee ee ee eee ee ee”

JUDGMENT IN A CIVIL CASE

QO Jury Verdict. This action came before the Court

for a trial by jury. The issues have been tried and

the jury has rendered its verdict.

& Decision by Court. This action came to trial or

hearing before the Court. The issues have been

tried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED THAT:

judgment shall be entered for defendant as a

matter of law.

20a

July 8, 2008 RICHARD D. SLETTEN, CLERK

Date

s/J. Dunbar Fannemel

(By) J. Dunbar Fannemel,

Deputy Clerk

Form Modified: 09/16/04

2la

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

No. 06-CV-172(JMR/RLE)

[Filed July 7, 2008]

Marlene Betz

Vv.

Michael Chertoff, Secretary,

Department of Homeland Security

ee a a a a

ORDER

This matter was tried to the Court on June 30 and

July 1, 2008. The Court entered its findings of fact and

conclusions of law into the record on July 2, 2008. For

the reasons stated on the record, [T IS ORDERED that

judgment shall be entered for defendant as a matter of

law.

Dated: July 7, 2008

s/ JAMES M. ROSENBAUM

JAMES M. ROSENBAUM

United States District Judge

22a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No.: 0:06-cv-00172-JMR-RLE

[Filed October 24, 2008]

MARLENE BETZ,

Plaintiff,

VS.

MICHAEL CHERTOFF, Secretary,

Department of Homeland Security,

Defendant.

New Ne Nae Ne Ne Ne Ne Ne Ne ee Se”

TRANSCRIPT

OF

PROCEEDINGS

(ORDER)

The above-entitled matter came on for hearing

before Chief Judge James M. Rosenbaum, on July 2nd,

2008, at the United States District Courthouse, 300

South Fourth Street, Minneapolis, Minnesota 55415,

commencing at approximately 11:50 a.m.

23a

CALIFORNIA CSR NO.: 8674

ILLINOIS CSR NO.: 084-004202

IOWA CSR NO.: 495

RMR NO.: 065111

[p.2)} APPEARANCES

STEPHEN C. FIEBIGER & ASSOCIATES,

Chartered, 2500 W. County Road 42, Suite 190,

Burnsville, Minnesota 55337, by STEPHEN C.

FIEBIGER, Attorney at Law, appeared as counsel on

behalf of Plaintiff.

OFFICE OF THE UNITED STATES ATTORNEY,

300 South Fourth Street, Suite 600, Minneapolis,

Minnesota 55415, by LONNIE F. BRYAN, Assistant

United States Attorney, appeared as counsel on behalf

of Defendant.

[p.3] THE CLERK: The matter on the caiendar is

Marlene Betz versus Michael Chertoff, Civil Number

06-172.

THE COURT: This matter comes before the court

on plaintiffs claim of unlawful discrimination based

upon her age, particularly in her compensation, and

claims that she was actively and constructively

discharged for that reason.

The record indicates, and the court finds, that the

plaintiff retired from the Department of Homeland

Security on November 28th, 2003. It is her contention

that she was forced to depart from that position, as

24a

I’ve indicated, basically due to wage discrimination

and based upon her age. This court previously ruled

during the motion for summary judgment that her

claim would have been limited to discriminatory

conduct occurring 45 days before her EEO complaint.

That would have been on or after September 21, 2003.

That was the court’s consideration with regard to

Ledbedder. That notwithstanding, the case was clearly

tried and set forth the matters which she contended

going long past and previous to that, going back as far

as 1998 and 1999.

The court has considered all of the evidence

admitted in its consideration of the case. The matter

has been heard, both sides have rested, and now the

court determines that the plaintiff has failed to prove

her claim and will grant judgment as a matter of law

in favor of the [p 4] defendant pursuant to Rule 50 of

the Federal Rules of Civil Procedure.

By way of background, the court now finds that the

plaintiff was an administrative assistant employed at

the St. Paul office of the Federal Immigration and

Naturalization Service, then “INS.” In March 2003,

that organization merged into the Department of

Homeland Security, becoming known as the Bureau of

Immigration and Customs Enforcement, “ICE.”

Throughout 2003, that agency went through

significant changes, and the plaintiff became

responsible for a number of additional tasks, which

included providing administrative support to

additional offices and personnel. It was the plaintiffs

firm belief that she deserved additional compensation

for her increased workload. One option she had

previously exercised was to request a cesk audit. If a

desk audit were provided and found that the plaintiff

25a

had been performing at a higher level, it might lead to

an upgrade. That would be a reclassification at a

higher grade on the General Schedule, the GS scale.

As of September 21, 2003, the plaintiff was

compensated at GS 7-7. In her view, she was deserving

of an upgrade to GS 11. Earlier in 2003, around March

or April, she asked Mr. Cangemi, her supervisor and

the agent in charge, for a desk audit or an upgrade.

Mr. Cangemi told her he would see what he could do.

No upgrade was forthcoming. [p.5] On September 21st,

Mr. Cangemi, through his deputy, awarded the

plaintiff three days of paid leave. She felt that that

was an inadequate award for the higher level of work

which she perceived herself to be doing.

On October Ist, the plaintiff told Mr. Cangemi that

were she not able to receive be upgrade, she would be

forced to retire. According to Mr. Cangemi -- it is

uncontroverted -- that he claims he requested an

upgrade, although no physical evidence in support of

that were offered. It was Mr. Cangemi’s statement

that no such upgrades came through, and it is

uncontroverted that no upgrades were given in that

office during all of 2003. The plaintiff replied, when

she found that there was nothing Mr. Cangemi could

do, that she had no choice but her option to retire. She

indicated to him that that was her wish and her desire

on November 3, 2003, a date dictated by considerations

related to the federal retirement account. Then other

incidents took place about which the court will opine

in a moment.

The plaintiff then went and spoke with Mary

Hernandez, who had been supervising her work on a

day-to-day basis, although unofficially, in the sense

26a

that no formal transfer of supervision had been

provided. But it appears to be uncontroverted that her

work was most closely affiliated with Ms. Hernandez,

partially because Mr. Cangemi, also [p.6] having

absorbed larger responsibilities, traveled on a regular

basis, as much as 50 percent of the time, leaving the

administrative staff, all of which were encompassed by

Ms. Betz, without an active supervisor on a day-to-day

basis. Ms. Hernandez was troubled that the plaintiffs

departure would cause difficulties in the office, since

everyone did not know exactly what she was doing,

and somehow they would need to accomplish the tasks

that had been reserved to Ms. Betz. The plaintiff

initially refused. At that point, Ms. Hernandez

suggested, and offered, a 1,000-dollar special award,

and this special award would be used, if you would, to

upgrade her compensation for one month’s period of

time. She agreed to stay for 30 more days. During this

30 days, when she did continue to labor, she was

provided compensation at the grade 7, step 7 level. The

1,000-dollar award was apparently passed through,

but either never approved, but certainly never

awarded.

Upon her departure, no one replaced her. Her work

was divided among existing employees. None of those

who assumed those responsibilities received either an

upgrade or any additional compensation. No one

disputes, no one suggested during the course of this

trial, and the court makes no finding, that she was

anything but a hard-working, conscientious, loyal

employee who performed well in her position.

However, the evidence reflects that there were no [p.7}

desk audits, quality step increases or any upgrades

which were placed in the St. Paul office at any point in

2003 or, indeed, for any time reasonably thereafter on

27a

the record before this court. Rather, as testified by

Nancy Weir, during this period the only way for an

employee to get an increase in pay was to apply for a

different job within the agency.

All of that is by way of findings and by way of

background.

Under the Age Discrimination and Employment

Act, the ADEA, it is, quote, unlawful for an

employer...to discharge or otherwise discriminate

against any individual with respect to his

compensation, terms, conditions, or privileges of

employment because of such individual’s age, close

quote. And that is from Tatom v. Georgia Pacific, 228

F3d, 926, 930, (8th Cir. 2000), which cited the statute

of 29 United States Code, Section 623(a)(1).

An employee is constructively discharged when the

employer deliberately renders her working conditions

intolerable, and thus, forces her to quit her job. Once

again from Tatom at 931, 932. The employer’s actions

must have been intended to force the employee to quit.

The employee can establish intentional discrimination

by showing that her resignation was a reasonably

foreseeable consequence of the employer’s

discriminatory actions. Accordingly, [p.8] constructive

discharge occurs only when a reasonable person would

find that the working conditions were intolerable.

Reduced to its essence, then, the plaintiffs claim,

and the plaintiff must bear the burden to show two

elements, one that Mr. Cangemi made her working

conditions so intolerable that a reasonable person

would have quit; and two, that he did so because of her

28a

age. The court finds that the plaintiff has failed to

sustain this burden.

First, the plaintiff has failed to prove a constructive

discharge.

She has not shown that a reasonable person would

have found it intolerable to perform her work at the

grade 7, step 7 level.

She had worked at this position for almost two

years, having previously been upgraded in 2001.

The court considers it interesting, and important to

recognize, that she was given an upgrade. She had

been a GS 6 in 1997, at which time she was 59 years of

age. In 1999, she was given an increase and she was

upgraded from the GS 6 to the GS 7. She was 61 years

of age. It is not obvious, and it certainly was not

proven, why or how she was being discriminated

against at age 63, when she hadn’t been at 59 and 61.

The court considers that to be significant.

Her request was to be increased to an 11. She [p.9]

knew, and testified herself, that that was a very large

increase and that she actually could not become an 11

for at least a year or two, would have to stop at an

interim nine, apparently.

Further, while she may have claimed the conditions

were intolerable, an additional offer of $1,000 made

them tolerable enough to be sustained for one more

month. The court notes that the salary matched her

official job description. Part of that, of course, is she

claims that her job description was wrong, but no one

was getting new job descriptions at ICE in 2003. ICE,

29a

the court must recognize, was in the process of being

integrated into the Department of Homeland Security.

Amidst the discussion during the trial, but the court

recognizes, at least having learned over time, that the

creation of the Department of Homeland Security

involved the merger of many, many federal agencies

and created the second largest federal agency behind

only the Department of Defense. All of this was

compressed due to exigent circumstances into a very

short period of time, but those conditions did prevail

while she was employed and during the 2003 period.

No one in St. Paul was being paid at a GS 7 for similar

or comparable work. It is also uncontroverted, as I

said, neither upgrades nor quality-step increases nor

any desk audits took place in 2003 or thereafter during

the time that any evidence was offered in [p.10] this

court.

Now I want to focus, if I can, on portions of the

evidence which were presented. As I’ve indicated, the

plaintiff received increases, including grade-level

increases, at ages 59 and 61. There was no showing

that any change occurred at all. Second, there was a

gross failure to prove what the standards were that

she had to meet to get an increase either to GS 9 or GS

11. There was no evidence provided, and the court has

none showing, that anything that she did was outside

of her grade GS 7-7 classification. Certainly they

adopted a new accounting system, which had, and

carried, additional respcnsibilities, but the

Government had simply changed a system. There was

no showing that anybody who was a 7 was either

incompetent to handle or, indeed, did not handle. The

suggestion was all the people who used this program

had to be higher, but there was no evidence in support

of that offered whatsoever. The court does not have,

30a

and has not been proffered, any objective standard to

show what she did that mandated either a GS 9 or

what she did that mandated an 11. The court

recognized that she gave to it an extended list of her

duties. I think it was in Exhibit 105. Nancy Weir sent

a questionnaire and the duties which she performea.

I can run down the list, but the large increases that

she picked up, after they picked up Nebraska, she got

the federal financial management system, [p.11] and

she did some things with purchase of vehicle repairs

and office supplies. But at no point did she ever have

supervisory authority over anyone. The plaintiff never

had a single report -- that means no person who

reported to her -- she wasn’t responsible for another

employee’s work or their production. The work that

she did before, and the work that she did after, the

merger was clerical. She did maintain electronic

databases, but an electronic database is nothing more

or less than a file organized by a computer. She did

some additional things on time and attendance, and

prepared certain reports but, according to her

description, the reports were extracted from

documents which were submitted by the criminal

agents and merely organized that information. That

does not strike the court as anything but, and there’s

no evidence that it was anything but, clerical work.

It is significant to the court, and the court finds it

highly probative, that after her departure, nobody

filled the position she had occupied. All of her duties

were encompassed and absorbed by the fellow

employees on the site. More than that, no one who

assumed any of her responsibilities either got a grade

increase or a bonus as a result of it, apparently. As I

indicated before, it is uncontroverted that no one got a

ala

desk audit nor was there a grade increase in 2003

entirely at all in St. Paul.

Then there were a number of incidents to which

[p.12] the court was directed. In 2001, approximately

two years before the matters of immediate concern,

Mr. Cangemi had a conversation with the plaintiff.

The court’s notes reflect, and I believe this accurately

reflects the plaintiffs testimony, was she ever asked by

Mr. Cangemi about her retirement plans. She replied

that, in July, 2001, she said that she was going to see

if there is a buyout. That is all. There was no

discussion about her production, there was no

discussion about “You really ought to think about

this.” There was no suggestion that she was becoming,

or was, less competent. There was no suggestion of

anything other than an inquiry. While sex, on one set

of cases, or age in another, cannot be permitted to be

the determining factor. In this case, there is no

indication that this was a determining factor of

anything. In the world, pecg ask each other what

their plans are for the future. iti:is happened to be

medium conjunct, as the court recalls, of a

conversation about another person who actually was

retiring at the time. It is not unusual for people who

are working to ask each other whether or not they’re

going to continue in their employment. And such a

simple inquiry is not an indication, absent more, of

discrimination based on age. And the court of appeals

has strongly suggested that there ought to be some

nexus between such an inquiry and an immediate

action being taken. There was none in this case. It was

fully two years thereafter {p.13] before there was any

other suggestion at all about her departure, and that

was initiated by the plaintiff, who said, “If I don’t get

a raise, I have to leave.” There was no showing

32a

whatsoever that this conversation indicated anything

other than a casual inquiry, in a workplace, asking

whether someone was going to continue.

The second, styled “The Breakroom Incident,” the

court’s notes reflect, and I believe that the record will

follow, that she went into speak to Mr. Cangemi on

October 29, 2003. She asked for an upgrade. He said

no. There’s nothing he can do. She was very unhappy.

Later that afternoon, she went to the breakroom; that

was one of her regular practices. Mr. Cangemi came to

the breakroom at approximately 3:30 p.m. She was

cleaning the coffee pot; that was one of her regular

responsibilities. Mr. Cangemi entered. He said that if

she was disturbed, she could go home and could come

back the next day to put in her paperwork. He claims

he was as much as six feet away from her. She claims

he came within three feet. That was all that happened.

No hands were raised, there was no indication that a

voice was raised. She did not testify that he yelled at

her. She said she felt threatened, she was upset. She

continued her cleaning, and departed. This court must

consider whether or not that was a threat or

intimidation. This was the only such incident that

occurred between them, [p.14] if indeed it rises to the

level of an incident at all. The court does not doubt

that she, feeling unhappy in her employment,

subjectively felt uncomfortable and displeased that Mr.

Cangemi came in and that he spoke with her. But even

the words that she said that he said, the actions that

she described, do not make out an objective threat or

an effort to intimidate. Nothing changed. She had told

him that she wanted to quit. She had told him she felt

she could not continue. And that was the entire

incident. It does not strike the court, and the court

33a

does not find, that it was intimidation, nor does the

court find that it was based upon her age.

The next matter of concern, her desk was moved.

First of all, if there ever was an insignificant factor,

this one strikes the court as being insignificant.

Clearly, things had deteriorated thereafter — and now

I'm talking about right after the first of November.

This is right after she indicates she wishes to leave,

and she will stay -- I'll speak a little more about the

thousand dollars and her relationship with Ms.

Hernandez -- but she’s now moved closer to the person

with whom she is working. There’s no evidence at all

that this is a less desirable or less prestigious location.

There’s no indication that she lost air circulation or

access to windows, or anything like that. All that

happened is she was moved. Frankly, the two of them.

[p.15] quite obviously, were not getting along very well

-- and the two are Mr. Cangemi and the plaintiff -- and

the fact that she was working closer to the person with

whom she was regularly working strikes the court as

not at all any form of discrimination and certainly not

discrimination based on age.

Now I focus on the $1,000. The $1,000 was a

suggestion by the then inline supervisor Ms.

Hernandez, and she proposed to provide additional

compensation for 30 days, which would offer an

incentive to the plaintiff to remain on site and assist in

training others or showing them what she was doing.

First of all, in this court’s view, that money had been

promised. She continued to work and she should have

been given it. That having been said, that is a moral

and personal observation. And I will explain why I do

not believe, unfortunately, that I can order anything

about it. It did not occur. But there’s no suggestion

34a .

whatsoever, none in the record, that the reason she

didn’t get it was because of her age. Now, she

continued to work under what appeared to be a

premise for an additional thousand dollars. And the

reality is she was not working for a regular employer,

she was working for the United States of America. And

this is what was known, at least in this court’s view, as

a claim in “quantum meruit,” which the lawyers will

know, but I will tell you means that if you perform

services for people who wish them performed, you can

imply a contract, and you can [p.16] require payments

under the contract. The problem is that you cannot run

quantum meruit against the United States. It doesn’t

do that. The United States is not susceptible to such a

claim, being the sovereign. In my view, she was

promised it, she performed the services, and she ought

to have been properly given it. But my views are not

the law. I’m bound to apply the law.

The plaintiff has proffered two comparables, two

other people who she feels were not discriminated

against on the basis of age and who received

compensation at the GS 11 level. First, one Mr.

Oswald. Oswald was apparently 53 years old. This is,

of course, not a gender case, no allegation along that

line, and, therefore, I set that aside. The court finds

Mr. Oswald was not comparable. He was in another

office. He was in Omaha. He did not go to, or through,

Mr. Cangemi; but more than that, his raise and

increase did not go through Mr. Cangemi either. There

is absolutely no evidence of what Mr. Cangemi would

have done with his compensation respecting the fact

that he was 53 or any other age, but that does not

show what would have happened to him. Secondly, the

issue in the case is not whether a younger person had

received an 11, the question in the case is whether or

35a

not the denial of the 11 or, indeed, the nine, as a step

toward the 11 to the plaintiff, reflected Mr. Cangemi’s

age bias. And Mr. Oswald does not reflect [p.17] that.

He came out of a different office. The court has no real

evidence as to either his responsibilities or what he did

that got him from a 7 to the 11. There was a

suggestion at one point that the plaintiff heard Mr.

Oswald say, “Well, I’m doing what you are, and I’m

making an 11 and so should you.” First of all, setting

aside whether or not that is rank hearsay, he is not the

person who awards increases. The _ increases,

theoretically, are awarded through che office. His

opinions as to whether or not her work justified an 11

are simply incompetent to offer information on that

subject. And finally, and extremely importantly, it is

uncontroverted that his increase was set in place prior

to 2003. It may have come through at that time, but

there was no increases given, as I’ve indicated, in the

St. Paul office. This came through Omaha by way of

Dallas, I believe, I think Texas, and there’s no

indication whatsoever that either Mr. Cangemi or

anyone in St. Paul had anything to do with it.

And then we have Sylvia Seamans. This court has

scoured the record. I’m not clear at all on what her age

is. I will assume for the purposes of this decision that

she was younger than the plaintiff. I do not know how

much younger. But once again, there is no showing of

the background, how she got her increase from either

whatever lower level she was at, up until the 11 that

she apparently had. I do not find that there is any

indication that [p.18] Mr. Cangemi awarded the 11 to

Ms. Seamans based on her youth as opposed to

denying it to Ms. Betz based upon her age. I believe

that the record indicated, however, respecting Sylvia

Seamans, that she had been already an 11 when Mr.

36a

Cangemi began supervising her. There’s simply no

showing one way or the other what role he took in her

decision-making.

That basically reflects the court’s review of the

evidence in the matter. And, so, I have to take a look

a at what the plaintiff was required to prove. First of

all, I cannot find that anything based upon the

plaintiffs age made her feel compelled to depart the

employment based on her compensation. She may have

felt that she was entitled to more money, but that

feeling from people who are good and productive

workers is not unusual. But I do not find that the

conditions were objectively intolerable such that no

reasonable person could have continued to work for the

37 or $39,000 per year that she was making in what

remained a clerical job. Second, she has failed to

establish that she was intentionally discriminated

based upon her age and that her retirement would be

reasonably foreseeable considering the discrimination

with which she was confronted.

Accordingly, I find that she has failed to sustain

her burden of proof. Judgment will be granted in favor

of the defense. And that will be the order of the court.

I thank you.

{p.19] MR. BRYAN: Thank you, your Honor.

(Court stood in recess at approximately 12:15 p.m.,

on July 2nd, 2008).

37a

[p.20]

STATE OF MINNESOTA _ )

) ss.

COUNTY OF HENNEPIN _ )

I, Ronald J. Moen, CSR, RMR, and a Notary Public

in and for the County of Hennepin, in the State of

Minnesota, do hereby certify:

That the said proceeding was taken before me as a

CSR, RMR, and a Notary Public at the said time and

place and was taken down in shorthand writing by me;

That said proceeding was thereafter under my

direction transcribed into computer-assisted

transcription, and that the foregoing transcript

constitutes a full, true and correct report of the

transcript of proceedings which then and there took

place;

That I am a disinterested third person to the said

action;

That the cost of the original has been charged to

the party who ordered the transcript of proceedings,

and that all parties who ordered copies have been

charged at the same rate for such copies.

That I reported pages 1 through 20.

IN WITNESS THEREOF, I have hereto subscribed

my hand this 27th day of July, 2008.

38a

s/ Ronald J. Moen

RONALD J. MOEN,

CSR, RMR

39a

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

No. 06-CV-172(JMR/FLN)

[Filed June 4, 2007]

Marlene Betz

V.

Michael Chertoff

Ne ee ee ee ee eee”

ORDER

This matter is before the Court on defendant’s

motion for summary judgment. The Court heard oral

argument on May 31, 2007. Based on the arguments of

counsel, and the files, records, and proceedings herein,

and for the reasons stated at the hearing, defendant’s

motion is granted in part and denied in part.

1. Plaintiffs claims based on _ allegedly

discriminatory or retaliatory events that occurred prior

to September 21, 2003 are untimely, and summary

judgment for defendant is granted as to these claims.

2. In all other respects defendant’s motion is

denied.

40a

IT IS SO ORDERED.

Dated: June 1, 2007

s/ JAMES M. ROSENBAUM ___

JAMES M. ROSENBAUM

United States Chief District Judge

4la

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

No. 06cv172 (JMR/RLE)

Marlene Betz, )

)

Plaintiff, )

)

vs. )

)

Michael Chertoff, Secretary, )

Department of Homeland )

Security, )

)

Defendant. )

)

Minneapolis, MN

May 31, 2007

10:40 a.m.

BEFORE THE HONORABLE

JAMES M. ROSENBAUM

UNITED STATES DISTRICT COURT JUDGE

(SUMMARY JUDGMENT MOTION)

42a

APPEARANCES:

For the Plaintiff: Stephen Fiebiger & Associates

STEPHEN C. FIEBIGER, ESQ.

Suite 190

2500 W. County Road 42

Burnsville, MN 55337

For Defendants: U.S. Attorney’s Office

LONNIE F. BRYAN, AUSA

Suite 600

300 S. Fourth Street

Minneapolis, MN 55415

Court Reporter: Lorilee K. Fink, RPR CRR

1005 U.S. Courthouse

300 S. Fourth Street

Minneapolis, MN 55415

Proceedings recorded by mechanical stenography;

transcript produced by computer.

** *

[p.22] * **

THE COURT: This matter comes before the Court

on the motion of the defendant seeking summary

judgment. For the following reasons, the defendant’s

motion is granted in part and denied in part.

It appears that the plaintiff worked as an

administrative assistant in the United States

Immigration and Naturalization Service which then

became the Immigration and Customs Enforcement

Division of the Department of Homeland Security.

43a

|p.23] It is her claim that she was paid less than

similarly-situated younger employees n violation of the

Age Discrimination and Employment Act, and that

this wage discrimination created an_ intolerable

environment which caused her to leave her job. She

made contact with an EEO counselor in November of

2003 -- actually, on November 5 of that year, and

officially retired on November 28, 2003.

Summary judgment, of course, is appropriate when

the evidence viewed in the light most favorable to the

non-moving party presents no genuine issue of

material fact. I cite Federal Rules of Civil Procedure

56; and Celotex v. Catrett and Anderson vy. Liberty

Lobby, companion cases decided in 1986, one at 477

U.S. 317, the other at 242.

With respect to all of the claims arising from events

prior to September 21, 2003, the Court grants

summary judgment for defendant because these claims

are time-barred.

A federal employee who wishes to bring an

employment discrimination claim against the United

States is required to contact an EEO counselor, quote,

within 45 days of the date of the matter alleged to be

discriminatory, close quote. That is from 29 C.F.R,

Section 1614.105(a)(1). There are occasions when this

[p.24] deadline may be extended if certain regulatory

conditions are met. I reference again, 29 C.F.R.,

1614.105, here at (a)(2).

Also, it can be waived through waiver, estoppel,

equitable estoppel, and equitable tolling. I cite Zipes v.

Trans World Airlines at 455 U.S. 385, at 393, 1982.

44a

And Coons v. Mineta at 410, F.3d, 1036, at 1040; 8th

Circuit, 2005.

The plaintiff suggests that the United States

waived its limitations defense by failing to plead it as

an alternative defense. The Court does not agree. The

limitations issue is part of the larger issue of whether

the plain. f properly exhausted her administrative

remedies. I reference here Coons at 1040, and Nygren

v. Ashcroft at 109 Fed. Appendix 816, at 819 from the

8th Circuit in 2004.

The plaintiff herself raised the issue in her own

complaint. I reference paragraph 3 thereof, and it has

been raised repeatedly by the United States during

discovery. There has been no waiver by the United

States, and in any case, there was neither prejudice

nor unfair surprise.

Now the plaintiff suggests that the 45-day

limitation relies -- is only available in discrimination

as opposed to retaliation claims, both [p.25] in oral

argument and in her memo at 39. There -- I believe the

Court is of a mind that she is incorrect. They are

definitely distinct legal theories. There is no hint in

the ADEA or Title 7, however, that Congress relieved

federal employees of their obligation to exhaust

administrative remedies simply because they pled a

retaliation claim. In this regard, plaintiffs reliance on

Burlington Northern and Santa Fe Railway v. White

is misplaced. That case did not address any issues

related to exhaustion or administrative remedies or

timeliness. I reference the Supreme Court case at 2405

in 2006.

45a

She knew that this was an affect that was after her

employment, the terms and conditions, the way she

was treated according to her contentions, and the way

she’s being dealt with. She knew that under those

circumstances she needed to go to an EEO person and

there was one there; she had gone on more than one

occasion. The fact that she did not receive

particularized training is not, in this Court’s view,

sufficient to remove the exhaustion requirement which

has been imposed in such cases.

She claims that she was not aware of any 45-day

notice requirement, again, at paragraph 39. But that

does not toll the limitations period. [p.26] Equitable

tolling, quote, is reserved for circumstances that are

truly beyond the control of the plaintiff. I reference

Coons at 410 F.3d at 1040, and is precluded where an

employee has, quote, general knowledge, close quote,

of the right not to be discriminated against or can

obtain such knowledge. And here I cite Briley v. Carlin

at 172 F.3d, 567, at 570; 8th Circuit, 1999.

Here, the record reflects not only that the plaintiff

had previously filed an EEO complaint in 1999, but

also reflects and makes clear that by 2000, she knew

she had been retaliated and could file and EEO

complaint. I refer to her deposition at 101 through 103.

The plaintiff is not entitled, therefore, to equitable

tolling of the limitation period in her retaliation

claims. Therefore, to the extent that the alleged wage

discrimination and constructive discharge maybe

considered retaliation, plaintiffs conduct prior to

September 21, 2003, this Court considers the claims to

be time-barred.

46a

To the extent that she argues that there is a

continuing violation, the Court is guided by the recent

decision from the United States Supreme Court in

Ledbetter v. Goodyear Tire. That’s at 2007 West ({p.27]

Law, 1528298 at *12, May 29, 2007. In that case, the

plaintiff also claimed she received lower pay for

discriminatory reasons.

Now, the upshot of it is, people know when they

don’t get paid if they’re at work, and they know they

didn’t get paid. And the Supreme Court concluded that

claims based on all pay decisions made outside the

limitations period are time-barred, and further

concluded, that plaintiffs claim included a series of

discrete acts instead of a continuing violation, which

means every time you don’t get paid, you know you

didn’t get paid. And here I reference at *11-12.

Here, plaintiff, as I said, consulted with an EEO

counselor in November 5, 2003. She was obligated by

federal regulations to do so within 45 days of the

alleged discriminatory act. It means she may not sit on

her rights. And therefore, she may not present any

evidence of discriminatory or retaliatory acts prior to

the 45-day period before that, which means prior to

September 21, 2003, as claims based on evidence --

such evidence are time-barred.

Therefore, in conclusion, the Court finds that

summary judgment is appropriate and is mandated to

all claims prior to that date. In all other respects, the

defendant’s motions are denied, and I [p.28} will tell

you that there was not a directed motion for a

summary judgment on the $1,000, but somebody better

think abcut that one in a big hurry.

47a

That will be the Court’s ruling. Counsel, you ought

to square this case away. We’re in recess.

MR. BRYAN: Thank you, Your Honor.

x *x *

CERTIFICATE

I, Lorilee K. Fink, certify that the foregoing is a

correct transcript from the record of proceedings in the

above-entitled matter.

Certified by:

Dated: Lorilee K. Fink, RPR-CRR

48a

APPENDIX G

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 08-3027

[Filed November 4, 2009]

Marlene Betz,

Appellant,

Vv.

Michael Chertoff, Secretary,

Department of Homeland Security,

Appellee.

Ne Ne eee ee”

Appeal from U.S. District Court

for the District of Minnesota - Minneapolis

(0:06-cv-00172-JMR)

ORDER

The petition for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

November 04, 2009

49a

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Isl Michael E. Gans