Petition for Writ of Certiorari — Bulter v. Kempthorne, (2008) (No. 711)
Supreme Court brief2008
Ask Donna
What actually matters in this document.
Text
Supreme Court, Us.
FILED
\) “~)
Willem K: Suter, Clerk
No. ae
IN THE
SUPREME CoOurrT OF THE UNITED STATES
William C. Butler,
Petitioner
Vv.
Dirk Kempthorne, Secretary,
U.S. Department Of The Interior,
Respondent
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit, Denver, Colorado
PETITION FOR WRIT OF CERTIORARI
William C. Butler, pro se
31951 Lodgepole Drive
Evergreen, Colorado 80439
(303) 674-8317
QUESTIONS PRESENTED
BACKGROUND: Petitioner, a federal employee for
17.5 yrs. in good standing, was separated at age 51
ina 1995 nationwide reduction-in-force. He timely
filed with the U.S. Office of Special Counsel a com-
plaint of prohibited personne! practices, unfairness,
and denial of seniority. Petitioner then became a
bona fide member of a certified age-discrimination
class of 74 male and female geologists over age 40.
He has never been granted a hearing, and the case
has not been tried on its merits.
Cana US. District Court dismiss a federal employ-
ment case for lack of subject matter jurisdiction and
deny the appellant due process if the appellant was
granted a Right-To-Sve Letter from the U. S$. Equal
Employment Opportunity Commission that states
their decision is final and there are no further odmin-
istrative remedies available?
Cana U.S. District Court dismiss a federal employ-
ment case for lack of subject matter jurisdiction and
deny the appellant due process if the appellant was
a bona fide member of a certified age-discrimin-
ation class who timely filed an individual age-dis-
crimination action when the class was decertified?
Can a U.S. District Court dismiss a federal employ-
ment case for lack of subject matter jurisdiction if a
complaint was timely filed with Office of Special
Counsel and the issue is one of equitable tolling
(running of limitations) with the Merit Systems
Protection Board —a non-jurisdictional issue?
LIST OF PARTIES
WILLIAM C. BUTLER, petitioner/appellant
DIRK KEMPTHORNE, Secretary, U.S. Department of the
Interior, respondent/defendant
No parties are corporations.
JURISDICTION
Petitioner's jurisdiction in U.S. District Court is Title VII of
the Civil Rights Act of 1964, 42 USC §2000e-5 and the
1967 Age Discrimination in Employment Act (ADEA)
29 USC 633(a). Petitioner also claimed discrimination
for being wrongly discharged, and being denied
equal employment opportunities (see doc. 1, Com-
plaint, cover page [jurisdiction] with EEOC's Right-To-
Sue Notice). Opinions are in appen. doc. 1A. 1B, 2,
and 3. A partial MSPB opinion is on p. 14.
TABLE OF CONTENTS
™ page
EIST ERR SAS nea Meee a
a claus ge elena i
et es awe eb oon i
Nee mews aee's iV
NERS SS Spd a A ae a ee ee iv
Federal Statutes and Rules... .......... vii
Other Federal Documents.............. ix
ee Pe kD |
FS EN oe 6
|. Petitioner timely filed with U.S. Office of
Special Counsel and later with
MSPB/EEOC
ll. Aright to due process of law must be
understood in context of equal-
and-fair-treatment issues .......... 9
Ne cn cdees 22
lll. Filing a class complaint suspends the
statute of limitations for exhaustion
of administrative remedies ........ 24
PO vc bc evcecsctcese 27
I ne cee essences 28
ee se wnen 30
Why the Supreme Court Should Hear This Case . . 41
RN ta ti oie de cad oleh we 43
I re ee eae hl. sce ae wae 45
Document 1A: Judgment from 10" U.S.
District Court, Colorado.......... 45
Document 1B: Order On Defendant's
Motion to Dismiss (Doc. #27) ...... 47
Document 2: Order and Judgment U.S.
Court of Appeals, 10"? Circuit ...... 59
Document 3: Order on Petition For
Rehearing, U.S. Court of Appeals
SRP ECE RS Seach ee 64
Document 4: Office of Speciai Counsel
Fg ke a a 65
Document 5: W.C. Butler's Letter to U.S.
Congressman David Skaggs...... 66
Document 6: Rocky Mountain News
Article - Feds’ Bonuses Raise Ire .... 68
Document 7: Rocky Mountain News
Article — Designer Downsizing ...... 70
Document 8: Boulder Weekly Article —
Bad Science: Politics &Patronage
Reign in Downsizing .............. 72
Document 9: DSZ & Associates’ Author-
ization to Investigate and W.C.
Butler's Interrogatories........... 8]
Document 10: Reimer's Letter Re: Gary
Hill’s Contempt For Civil Service... 87
Document 1!: O’Connor’s Letter Re:
Gary Hill's Contempt For Merit
PO Pk cae 6 OU aw We ce~ 0 « 9]
Document 12: Federal Employees News
Digest Article About U.S.G.S. RIF... 93
Document 13: Confidential Memo From
Program Chiefs To Chief Geologist
Admitting They RIF'ed Employees
es ce ees 94
Document 14: Petitioner's Response to
Judge's Order To Show Cause... . 96
TABLE OF AUTHORITIES
CASES
page
Adam et. al. v. Norton, 9'> Cir. Doc. No. 04-
17365, N.D. CA No. C-98-2094 CW ...... 18, 25, 98
American Pipe & Construction Co v. Utah,
414 US. 538, 94 S.Ct. 756, 38 L.Ed.2d 713
aN ee re 33, 37, 103
Andrews v. Orr, 851 F.2d 146, 48 FEP 643
as eu ge eek 4 Hoe OA 37, 39
Baldwin County Welcome Center v. Brown,
466 U.S. 147, 152, 104S.Ct. 1723, 1726, 80
oO Bea ho eg ly 40
Barrett v. Civil Service. Commission, 69 F.R.D.
Sad. 04 FP Cie Ge. FPF Ee ccc cc ccc rceces 38
Beeman v. Middendorf, 425 F.Supp. 713,
3 ge Se are a 38
Boddy v. Dean, 821 F.2d 346, 45 FEP 586
PG IE Wha std ie sees mew eugancete ss as 40
Brodrick v. District of Columbia, 7 MSPR
EE oe ae a ee a all ar gag eh 21
Chisholm v. U.S. Postal Service, 665 F.2d 482,
er Oe Gas EE ks 6 6h sna) cede eee ees 38
Crown, Cork & Seal Co. Inc. v. Parker,
462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d
I 6.05, 6.02. a ou vaudabe eater bas wis 34, 38
Dawson v. U.S.P.S., 45 MSPB 194, (1990) ........ 101
Drake v. U.S. Dept. of Commerce,
ois eh ie cee be bh ewe 2)
Eastland v. Tennessee Valley Authority,
553 F.2d 364, 15 FEP 1115, (5'" Cir. 1977),
cert. denied, 434 US 985, 98 S.Ct. 611, 54
a8 Fg. erry er ene 38
Ellis v. Naval Air Rework Facility, 404 F.Supp.
377, 386, 391 (N.D. Cal. 1975), rev'd on other
grounds, 608 F.2d 1308 (9 Cir. 1979) .......... 38
-
Federal Express v. Holowecki, et. al.,
U.S. Supreme Court No. 06-1322 (552 U.S.
2008) decided Feb. 27, 2008 ................. 15
Gomez-Perez v. Potter, Postmaster General,
U.S. Supreme Court (06-1321) decided
AS EI SF ae eae ee 20
Griggs v. Duke Power Co., 401 U.S. 424, 91
eR me OE Fd) 32
Hazen Paper Company v. Biggins,
EE 32
McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ....... 1]
Meacham v. Knolls Atomic Power Laboratory,
aka KAPL, Inc., et. al., U.S. Supreme Court
No. 06-1505 (decided 6-19-2008) ........... 7, 40
Monreal v. Potter, 367 F.3d 1224, 93 FEP
SLI LE 38
Nelson v. County of Allegheny, 60 F.3d
aia cw a's we etececeueee 33
O'Connor v. Consolidated Coin Caterers Corp..,
517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d
er es Le eee ee ewes es 0. 32
Parnell v. U.S. Dept. of the Army, 58 MSPR
es wa 20
vi
Scott v. U.S. Dept. of Treasury, 1 MSPR 42
RE ered ke ee Ce ee ae vs «~ ee
Steele v. Louisville & Nashville R. Co., 323
U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) ........ 9
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122
Tee @ fe} oe. ee 17
Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)... 11
United States of America v. Gary W. Hill,
8:02-cr-00431-JDW, U.S. District Court,
pee erect, FONTS, FL ww. cee 3, 20
Valentino v. U.S. Postal Service, 511 F.Supp.
917, 25 FEP 24, D.D.C. (1977), aff'd 674 F.2d 56,
218 U.S. App. D.C. 213, 28 FEP 593,
Sh Cae ss abi wale vie nels 6% 6 = 0 « 38
Wards Cove Packing Co.., Inc. v. Atonio, 490
U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) .. 32
Washington v. Davis, 426 U.S. 229 S.Ct.
yo eB eo 10
Wilburn v. U.S. Dept. of Transportation, 757
Fem an ae SR, UE 04s ois os ea cence cs 26
Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
102 3.C¥. UIZ7. 73 UB. ZO4 IPG)... wee 40
FEDERAL STATUTES and RULES
vil
FS os ces cccecceececteens 7
F.R.Cv.P. Rule 23(b)(3) .......... Reapoe. 26, 33
ee... dic euecuaedus 13
rere 13
CO 13
osc ncscocaceveveus 13
5 US.C. §1214(a)(1)(A) ..........- wesuspueas 13
SUSC. SI916........ ioe ener Re 20
Teor 13
ae 35
SE pe nin ses 7
I nn. occ kcccccaccceceus 20
vi cccekcavcueteus 19
ee ues 10, 20
5 U.S.C. §2302(b)(1,4,6, 8,10) .......... 20, 21, 35
se. ccc ancwecccunes 20
i eeseened 34
ee ds cca esuau pac 34
5 U.S.C. §7702(a)(1)(B) ............ idee onan 12
IS, ...... wc ccc ce ccccveus 9
UI go. ac ccc ccccvosecccees 34
I .. eco esensves 12, 36, 41
UE gd... oe cn uncuvwes 34
ree 11,21
ee ET ere 7
SCPR BUMLIONE .... «5... 5. oc cece 14, 103
ee a 34
Ee dg. ccc ce ces 37, 103
eel ES eee 13
ne iedesaue 3
re 40
ee cc cecawuns 10
TPGER GUAT co. oo ck a dece cee 10
29 CER. $1614.102ic)IS) .................-.. 10
pe Er ee 1]
ee I og no cc ccc ccccevecsvvees 34
poe re 26
29 CPR. SIGI4.20e) ............. 27, 28, 29, 101
EE ko. ce cowecepevdieseewe 34
ec cet ccs ees eeenc ten 4]
pg ES 15, 34
in ccc ceec cesses owen 18
es oa ec esse assess eee 40
Er 19
42 U.S.C. §2000e et seq. Title VIICRA..... 19, 34, 39
ee ee 18
ia ian on kc cod docs e034 34
ee I so voce cccctcccecenecss 34
Civil Service Acts of 1866, 1870,1883
a nr ie ak 9 wg 0d 19, 20
Civil Service Reform Act Pub. L. No. 95-454 Stat.
I ns gk ok so esse obec 10, 19
Lloyd-LaFollette Act of 1912...............4.. 19
U.S. Constitution 5'* Amendment.............. 9
U.S. Constitution 14° Amendment............. 9
OTHER FEDERAL DOCUMENTS
United States Geological Survey, Report Of
Investigation On [1995 RIF] Class Complaint,
September 28, 2004, by DSZ & Associates,
RF PED oboe ck vccccvesecsens 4, 30
httos://e-aopedl.Mspb.dov ............ ee eues 13
U.S.F.R. v.60, n. 165, Aug. 25, 1995,
RE ee PO eT ee Oe Ee 7
ix
STATEMENT OF THE FACTS
1. Petitioner was a federal career geologist GS-
1350-13 in good standing from May 2, 1978-
Oct. 14, 1995, stationed in the Central Region
| (Denver, CO), Geologic Division (GD), U.S.
Geological Survey (U.S.G.S.), Dept. of Interior.
: 2. Petitioner was served a defective Reduction-in-
: Force (RIF) Notice on Aug. 14, 1995. 550 GD
: scientists (37% of workforce) were separated in
this RIF, and about 800 were adversely affect-
ed. The RIF Notice did not contain the require-
ed MSPB appeal form, or a required reason
for separation. Nor did it mention appeal
rights with EEOC or OSC. Notice stated that
appellant's deadline for filing with MSPB was
contingent upon “absent a showing of good
| cause”. Petitioner showed good cause by
| timely filing with OSC.
3 3. Petitioner's birthday is Jan. 7, 1944, making him 51
yrs. old on the effective day of the RIF.
4. For purpose of the RIF, the Agency quickly de-
veloped experimental competitive level codes
(CLC’s) for the Geologic Division increasing
the number of geologist job categories from
about 60 to over 400 - almost one for each
scientist separated.
5. Petitioner's competitive level code (position) was
changed immediately before the RIF from 019
to 059 to put him into a unique one-person
“group” that prevented him from competing
for other 019 positions. Appellant had an
OPM-computed adjusted service date (ASD)
of 5-2-1966 which is senior to non-RIF’ed
employee D. Higley whose ASD is 12-9-1967.
Higley’s CLC was changed from 019 to 046 so
petitioner could not exercise his seniority. Both
parties were the same GS-grade in the same
tenure ac in the same small petroleum re-
source assessment group in the same Branch
and both did exactly the same work. Appel-
lant was 10 yrs. older than Higley. Appellant
identified 26 other non-RIF'ed geologists who
had less ASD seniority than appellant (see doc.
64, p. 34-39 for verified affidavit; p. 50 for Per-
sonnel Office's list of CLC changes).
6. 98% of all 784 adversely-affected employees had
their CLC’s changed. This allowed manage-
ment to target people for separation and
downgrades rather than to cut positions. OPM
rules allow only positions to be cut. OPM
formulas put the most senior employees at the
top of the retention registers and these people
fill the uncut positions. This standard proce-
dure was overridden by the Agency.
7. Management illegally evaluated people rather
thon positions when making pre-RIF staffing
plans. This is confirmed by testimony of staffing
committee members as shown by their meet-
ing notes. These were the documents that
survived shredding after each meeting.
8. The Agency maintained an illegal “Add-Back List”.
After the RIF, the separated employees under
age 40 were rehired without competing for
positions. Those positions were not available to
RIF'ed employees over 40. This scheme cir-
cumvented OPM rules for fair competition
and showed age animus.
: 2
9. The cornerstone of federal employment practices
is fairness and equal opportunity as evidenced
by the Civil Service Reform Acts, Civil Rights
Acts, Executive Orders, and non-discriminatory
policies that promote merit principles rather
than an archaic spoils and favoritism system. It
is fact that the Agency had a good faith duty
to treat all protected employees uniformly and
to use equitable standards, such as in honoring
seniority.
10. Petitioner timely wrote an official complaint to
The Office of Special Counse! (OSC) on Aug.
25, 1995, about prohibiied personnel practices,
including political intrusion, denial of seniority,
gross unfairness, appalling procedures, and
vindictiveness by a supervisor, Office Chief
Gary Hill. (OSC File No. MA-95-2067). OSC
replied (appen. doc. 4) that Complaints Exam-
iner, J. Sandra Thomas, would interview ap-
pellant, but she never sent a questionnaire
and never interviewed him. OSC “dropped
the ball” failing to perform their legal obli-
gation to investigate. Appellant was ready
and willing to provide additional information.
11. Supervisor Gary Hill was convicted in U.S. District
Court as a felon for stealing $50,000 worth of
U.S. Government property under 18 U.S.C.
§641. (United States of America v. Gary W. Hill,
8:02-cr-00431-JDW). Appen. doc. 10 and 11
also document Hill's contempt for civil service
rules via his overt admissions to witnesses that
he schemed to circumvent merit principles.
12. Petitioner did not appeal in 1995 to Merit Systems
Protection Board (MSPB) or Equal Employment
3
Opportunity Commission (EEOC) as he waited
for an investigation from OSC that never hap-
pened. Meanwhile, class actions were being
filed by the anti-RIF committee CREAM
(Central Region Employees Against Misman-
agement) of which petitioner was a member.
13. Seventy-four U.S.G.S. employees over age 40 in
Denver were separated or downgraded
(91.4%), but only seven employees under 40
were separated or downgraded (8.6%). These
data are from U.S.G.S. Final Report (Sept. 28,
2004, Agency Summary, p. 11). Ten times as
many employees over 40 were affected but
business necessity and budget deficit were
never shown by the Agency. The 405 early-out
retirements in 1995 (the oldest of the work-
force) were not included in the 91.4% of
RIF'ed employees over age 40. Taking out the
oldest employees from the population sample,
made the RIF'ing of those over 40 even less
likely simply by chance. Statistics thus show an
intentional discrimination (disparate impact).
Such a gross statistical disparity constitutes a
prima facie case of discrimination.
14. Christine Turner-Peterson of the Geologic Division
orepared an official report prior to the RIF that
concluded 400 early-out retirements would be
necessary to cover a worst-case 20% budget
reduction. If 400 retired, no RIF would be nec-
essary. 405 did accept early-outs. Neverthe-
less, five months after receiving a full budget
from Congress, management went ahead
with a massive worst-case-scenario RIF. The
15.
16.
17.
18.
19.
20.
GD budget was not cut, thus showing a RIF
was unnecessary for fiscal reasons.
An anonymous class-action appea! to the Oct.
1995 RIF was timely filed in Nov. 1995 with the
U.S.G.S. Equal Employment Office (EEO),
Denver, CO. EEO took 4 years to investigate
discrimination claims filed in 1995-1996.
A sextage-discrimination class action timely
filed by geologists Throckmorton &Nichols in
Jan. 2000, was changed by a Federal judge in
May 2003 to an age-discrimination class action
including all male and female geologists over
age 40 in the Central Region.
As a party to the action, petitioner submitted
interrogatories to the Agency in May 2004 that
included a 1995 letter to his U.S. Congressman
complaining of prohibited personnel practices
and age discrimination.
Petitioner timely filed a Right-Of-Action in June
2005 with MSPB after the class was decertified
in May 2005 on res judicata grounds. (doc. 64,
attach. C, p. 45-45b).
U.S.G.S. management gave themselves multiple
bonuses (some as many as 5) after the RIF and
sent memos to staff urging them to spend
year-end money quickly and buy things be-
cause they were flush. (appen. doc. 6).
Two weeks after the RIF, Nov. 1, 1995, the G.D.
Program Managers and Coordinators sent
Chief Geologist Leahy a confidential memo
(appen. doc. 13) complaining about how they
could explain to the workforce that they had
just rolled over millions of dollars for the last two
fiscal years yet just RIF’ed hundreds of employ-
5
ees (court doc. 64, attach. D, p. 46). Given
that the budget was not cut, the RIF is now
seen to have been a pretext.
21. Agency untimely filed 2 documents missing
deadlines for Motion For Extension Of Time To
File Answer To Complaint, and the deadline for
filing Defendant's Answer.
22. Petitioner has diligently pursued his appeal
rights from August 1995 to the present.
23. Petitioner's complaint was denied by 10" US.
District Court and U.S. Court of Appeals for lack
of jurisdiction (appen. doc. 1A, 1B, 2, 3).
ARGUMENT
|. Petitioner timely filed with U.S. Office of Special
Counsel and later with MSPB/EEOC
Petitioner will show with evidence that he was en-
titled to file a civil action in federal court by EITHER his
timely OSC complaint OR his timely age-discrimi-
nation complaint. The evidence shows: 1) a break-
down of merit-based decision-making, 2) disparate
treatment and impact, 3) abuse of authority by
management, and 4) inequality — all discriminatory
issues in RIFs. These substantive issues comprise the
contextual background in which the procedural
denial of due process and jurisdiction, and the
subsequenl dismissal of a cornplaint, are made.
lf a defective RIF Notice (court doc. 1, p. 28A-28B) is
served, an appeal within 30 days is difficult to con-
struct when no reason is given for the separation. A
6
reason is required by 5 C.F.R. §351.802 (a)(1) and
U.S.F.R. v. 60, n. 165, Aug. 1995, p. 44,253-54,..”...a
specific reduction in force notice must cover the
action to be taken, the effective date of the action,
and the reasons for the action.”. [emphasis added].
Once a complaint is filed by a separated employee,
the burden of proof in an ADEA case is on the em-
ployer to show there were reasonable factors other
than age (Meacham v. Knolls Afomic Power Labor-
atory , Supreme Court no. 06-1505 (decided 6-19-
2008). However, the Agency's argument is that pet-
itioner is not female, and thus he cannot opt-in to
their sext+age discrimination claim, and secondly
that OSC is not allowed to accept a timely com-
plaint of prohibited practices before MSPB receives
it. Both defenses are incorrect because OSC invest-
igates RIFs, and the sex+age claim included males.
The 10! US. District Court ruled it nas no jurisdiction
over petitioner's case per F.R.Cv.P. Rule 12(b){1)..
“(lack of jurisdiction over the subject matter.” Peti-
tioner was denied jurisdiction because he allegedly
did not exhaust administrative remedies. To the con-
trary, petitioner not only timely filed an official com-
olaint with the U.S. Office of Soecial Counsel speci-
fying prohibited personnel practices (facts #10,
supra), he also filed a timely individual age-discrim-
ination complaint with MSPB after his class was de-
certified. The latter complaint was denied by an
administrative judge who speculated that petitioner
nad “no interest in filing an action”. This was an ad-
mitted presumption by the judge, but a false con-
clusion contrary to facts presented in petitioner's
7
2500-word Response To Order To Show Cause, July 8,
2005 (doc. 1, p. 38-43). The Agency’s Motion To
Dismiss (doc. 27, p. 7, 11) states that MSPB remarked,
“IB]utier does not give any explanation for his failure
to pursue his rights... or even allege .... his rights were
being preserved...” The district court echoed this
falsehood. Appen. doc. 14 proves this is clear error.
That denial resulted in EEOC granting petitioner a
Right-To-Sue Notice (below) because there were no
more administrative options available. The courts
claimed it was not really a right to sue (appen.
doc.1B, p. 55; appen. doc. 2, p. 61). Petitioner dis-
putes this. He has established a right to invoke Fed-
eral jurisdiction by timely filing official documents
(below), e.g., the OSC complaint. Petitioner also per
class membership filed a Right-of-Action with MSPB
on June 8, 2005, that preserved his rights.
In arguing its defense, the Agency cited subjective
MSPB opinions about the instant case. The Agency
stated in its Motion To Dismiss (court doc. 27, p. 7),
“for the first eight years after the RIF, [Butler] did not
wish to pursue the EEO process at the agency level
and did not wish to file Board appeals”. However,
the petitioner's comprehensive Response To Order To
Show Cause {id.} defined his “wishes” and intentions;
they were quite the opposite. Petitioner filed a com-
plaint, wrote Congress, was ao member of the anti-RIF
Committee, collected and provided evidence, and
kept in touch with the class representative for years.
The Agency has repeatedly used the fact that EEOC
denied consideration of appeliant’s Petition For
8
d
Review which was denied for lack of jurisdiction and
not on its merits (doc. 27, p. 7-8). The trial court
(Order to Dismiss, doc. 59, p. 6) echoed the
Agency's “no interest” and denial theme which is
not allowed per 5 U.S.C. §7702(b)(2). After MSPB’s
decision to deny and a petition is filed...
“(T]he Commission shall, within 30 days after
notice of the petition, determine whether to
consider the decision. A determination of the
Commission not to consider the decision may
not be used as evidence with respect to any
issue of discrimination in any judicial proceed-
ing concerning that issue.”
The Agency has violated this regulation and preju-
diced petitioner's case.
ll. A right to due process of law must be understood
in context of equal-and-fair-treatment issues
The U.S. Constitution operates directly on the Federal
government as an employer, i.e., the “no person
shall be deprived of due process” clause of the Fifth
Amendment (1791) allows petitioner the right to file a
timely complaint with the U.S. OSC and later with the
U.S. MSPB/EEOC. Equal treatment is implied in that
clause (Steele v. Louisville & Nashville R. Co., 323 U.S.
192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). The Fourteenth
Amendment (1868) is the “equal protection” clause
stating that no person shall be denied this protective
rignt under its jurisdiction. If lhe Agency chooses to
favor one person or group (under age 40) over
another (over age 40) for retention, it must be able
to justify it with compelling reasons and interests. In
the 1995 RIF, US.G.S. violated these two rights by
9
failing to protect its workforce from discrimination,
and allowing a timely-filed complaint to go unheed-
ed. The essence of discrimination is that a person or
group has been treated differently, and that is what
the Agency did. The discrimination was intentional
(see appen. doc. 8, 10, 11, 13) and the petitioner has
established a prima facie case (court doc. 8, Plain-
tiff's Motion For Summary Judgment - Default To
Provide Answer) under Equal Protection and Due
Process clauses per Washington v. Davis, 426 U.S. 229
§.Ct. 2040, 48 L.Ed.2d 597 (1976).
Civil Service Reform Act Pub. L. No. 95-454 Stat. 111
(1978), 29 C.F.R. §1614.101, and 5 U.S.C. §2302(b)
identify illegal practices as any personnel actions
based on: race, color, religion, sex, age, national
origin, handicapping condition, marital status,
political intrusion, obstructing anyone from com-
peting for employment, and giving unauthorized
preferential treatment to any employee. They were
enacted to... “promote the full realization of equal
employment opportunities through a continuing
affirmative program in each agency.” 29 C.F.R.
§1614.102(a}(3) states, “ ...all government agencies
shall eradicate every form of prejudice or discrim-
ination from the agency's personnel policies, prac-
tices, and working conditions.” Also, 29 C.F.R. §1614.
102 (c)(5) states that agencies are responsible for
assuring that individual complaints are fairly, timely,
and thoroughly investigated. Given these concrete
mandates, petitioner argues clear error was com-
mitted by the trial court in dismissing his case.
10
by
7
1
‘
;
_
;
3
’
When a complainant uses the words: get even,
vindictive, unfair, devious, appalled, using politics [in
decision-making], victim, targeting employees, mis-
treatment, this situation smells, and a sad day for
Federal employees, the description and tone ident-
ify factors associated with prohibited personnel
practices per 5 U.S.C. §1221(e)(1). These words
encompass a discriminatory situation. The plain
meaning of the OSC letter is clear. Abuse of author-
ity and denial of seniority are prohibited in the Fed-
eral workforce. Vindictive is defined as retaliating,
seeking revenge, and being spiteful. These are
functional equivalents to discrimination, and against
Federal policy per 29 C.F.R. §1614.103(a) that states
any complaints of retaliation are considered com-
plaints of discrimination. Such a claim should nave
triggered a serious and full response by OSC.
Petitioner’s complaint to OSC also stated that he was
qualified for positions in his Branch (having been its
Deputy and Acting Chief for five years and super-
visor of 200 peer employees), and that he had
seniority over some non-RIF'ed geologists. OPM RIF
guidelines (5 C.F.R. §351.401-.705) indicate peti-
tioner’s seniority was wrongfully denied.
The RIF was a brilliant pretext because the budget
deficit never materialized and money was being
returned (appen. doc. 8, 13). The burden of proof to
show it was not a pretext was the Agency’s per
McDonnell Dougias Corp. v. Green, 411 U.S. 792, 93
§.Ct. 1817, 36 L.Ed.2d 668 (1973) and per Texas Dept.
of Community Affairs v. Burdine, 450 U.S. 248, 101
S.Ct. 1089, 67 L.Ed.2d 207 (1981).
1]
Complainants have the right to file with an appro-
priate agency, such as OSC, until such time that
MSPB is notified per 5 U.S.C. §7702(f). The trial court
stated that the appellant did not timely file his ap-
peal with MSPB in 1995. To the contrary, the
petitioner initially filed with OSC which is legally
binding until the appeal went to MSPB. Per 5 U.S.C.
§7702(a)(1)(B) and §7702(f)...
“fi]Jn any case in which an employee is re-
quired to file any action, appeal, or petition
under this section and the employee timely
files the action, appeal, or petition with an
agency other than the agency with which the
action, appeal, or petition is to be filed, the
employee shall be treated as having timely
filed the action, appeal, or petition as of the
date it is filed with the proper agency.”
[emphasis addeg].
The law is clear. Petitioner has a right to invoke this
statute. It is also clear that no time frames are
specified. Furthermore, petitioner is exercising his
right to invoke the “absent a showing of good
cause” condition in the RIF Notice (court doc. 1, p.
28A,B) in order to timely file with OSC instead of
MSPB. The Agency never denied this condition exists,
and never indicated that it was improperly used by
petitioner.
OSC is authorized to investigate mismanagement
and misconduct, and shall protect Federal employ-
ees from prohibited personne! practices. It investi-
gates gross mismanagement, waste of funds, and
abuse of authority, or any violation of any law, rule,
12
ee UL
, -
-
or requlation, including any activity relating to polit-
ical intrusion in personnel decision-making per 5
U.S.C. §1212(a}(2) and (a)(3) and §1214(a)(1)(A) and
§1216(a)(4) and 5 C.F.R. §1800.1(a}(12). 5 U.S.C.
§1212(a)(3) further regulates that OSC shall review
and forward to the Attorney General or an agency
head under 5 U.S.C. §1213 disclosures of violations of
any law, rule, or regulation, or gross mismanagement
or gross waste of funds, or abuse of authority. Peti-
tioner thus appropriately contacted OSC in 1995.
The Agency has never offered an answer, other than
a standard affirmative-defense denial for petitioner's
above-noted claims. Appen. doc. 8 provides public
information about the politics and patronage of the
U.S.G.S. down-sizing in 1995.
The role of MSPB per 5 U.S.C. §1204 is similar to OSC.
The U.S. government website https://e-appeal.mspb.
gov/faq.aspx, states:
“#4. If a personnel action, whether appeal-
able to the Board or not, is taken or about to
be taken as a result of a prohibited personnel
practice, you may file a complaint with the
Office of Special Counsel, asking the Special
Counsel to seek corrective action...”
“#6. Who has the burden of proof in appeals
proceedings? The Agency if you show that
there was harmful error in the agency's pro-
cedures, that the agency decision was based
on a prohibited personne! practice, or that the
decision was not in accordance with the iaw.”
13
The following is stated (B.J. Sapin) about Dr. Butler’s
MSPB appeal in MSPB 295 Opinion and Order, 2006,
doc. no. DE-0351-5-0377-I-1:
“12 However, because the record does not
establish the date that appellant Throck-
morton received the ID denying class
certification, the Board cannot find that the
appellant Butler's individual complaint was
untimely. Additionally, even if Butler's com-
plaint was untimely, he must be afforded an
opportunity to establish good cause for his
untimely filing. 913 In the majority opinion, my
colleagues have found that appellant Butler
timely filed his appedgl...... Accordingly, |
would remand Butler’s appeal to the Field
Office for adjudication on the merits. ..... 116
Yet, regardless of the 'ong processing time, the
appellonts’ class EEO complaint was proc-
essed according to tlie regulations that
govern the processir 3 of such complaints.
EEOC ordered the agency to notify all
potential class members of the acceptance of
the class complaint and the agency com-
plied. Thus, the agency and EEOC accorded
the class members an expectation that they
would continue to be given the benefit of class
status, including the tolling of any time limit to
file individual complaints or appeals, until the
class complaint was resolved.” Also, id.... “We
hold that the filing of a timely class complaint
of discrimination at the agency level extends
the time for filing a Board appeal under 5
C.F.R. § 1201.154(b).” [emphasis added].
14
The Agency states, "[D]r. Butler never timely filed any
action alleging discrimination... His letter to the OSC
was insufficient.” (Defendant's Reply In Support Of
Motion To Dismiss, doc. 36, p. 7). Petitioner emphat-
ically disagrees. The Agency shows ignorance here.
The Supreme Court in Federal Express v. Holowecki,
et. al., U.S. Supreme Court No. 06-1322 (552 U.S. 2008)
decided 2-27-2008, held that because EEOC did not
discharge its own administrative duties after accept-
ing a pre-formal compiaint against FedEx, and be-
cause of the basic concept of fairness, it is allowing
the employees’ lawsuit to proceed and allowing the
suspension of the statute of limitations. The concept
of “Manifest Intent” invoked by the Court parallels
this instance case. It shows the petitioner's actions,
e.g., his OSC letter, were sufficient as an initial claim
of discrimination. The Agency’s argument of insuf-
ficiency fails under the reasoning of Federal Express
v. Holowecki, et. al. (Id.). Petitioner's intent is easily
understood and indisputable in his complaint to
OSC, and in his writing and meeting with his U.S.
Congressman David Skaggs. This action started the
ball rolling on a claim of prohibited practices.
Petitioner reasonably believed per 3 letters from OSC
that he would be interviewed for additional infor-
mation. Per ADEA, the intake questionnaire filed by
FedEx employees in 2001 (supra) sufficed as an EEOC
charge of discrimination (per 29 U.S.C. §621 ef. seq.),
and the courts treated it as a charge of discrimin-
ation even though EEOC did not consider the ques-
tionnaire as its official intake form. The Court further
noted that although the official “Charge of Discrim-
ination” form was not filed until six months after the
15
questionnaire, and 2-3 months after the lawsuit was
filed, due process was offended. The employees’
expectation of tolling was upheld, i.e., the claim was
timely filed and the exhaustion of administrative
remedies was satisfied. Therefore, because it was
the discriminated FedEx employees’ manifest intent
in submitting the questionnaire to activate the ad-
ministrative process, as judged on its tone and
content, the burden of compliance shifted to EEOC
to obtain additional information about employee
claims. The Court said it is the duty of requlatory
agencies to solicit information about claims once the
agency has been notified, and whether or not the
agency carries out its duties is not within the control
of the appellant. The Supreme Court ruled that
substance over form prevails in determining whether
a discriminated employee who has not used the
right form can nonetheless express an official com-
plaint in a legally recognizable way. The Court also
ruled that nowhere in EEOC rules does it explicitly say
that the form “Charge of Discrimination” must be
used to file a charge and that no statute compre-
hensively defines “charge”. The Court continues by
noting that because the meaning of charge is un-
clear and not exhaustive, a charge is sufficient if it is
a statement that alleges the defendant has en-
gaged or is about to engage in unlawful or discrim-
inatory acts. The Court notes that although regu-
lations identify procedures for filing a charge, they
deficiently do not state the full content of a charge.
In appellant's similar case, he has plainly shown his
intent. The Agency has admitted that petitioner was
51 years old in 1995, i.e., in a protected group (doc.
32, p. 8), and that he claimed to be a victim. The
16
_ SS oe eh
Agency also admitted petitioner claimed other
unlawful practices. Details of victimization were set
forth in his August 1995 letter to OSC. Per this ruling, a
victim of discrimination does not lose the right to sue.
Petitioner challenges the trial court's judgment that a
timely filed complaint to OSC does not satisfy the
manifest intent of initiating a formal complaint. The
district court’s Order To Dismiss (appen. doc. Ib, p.
56} made an incredible statement that ..."[P]laintiff
complained in the August 25 letter only that his
termination was ‘a result of difference of opinion with
a former office chief’ and that he was ‘a victim of
politics’’. “Only”? Clearly there was much more.
Upon reading this OSC letter, a reasonable person
would conclude that the court missed the complaint
of prohibited practices (unique CLCs), unfairness, a
concern for denial of seniority, and a collapse of civil
service merit principles. The Agency also decided
that the following four documents (p. 22-32) support-
ing the appellant's claim are “not sufficient”, al-
though the written evidence from the Agency itself
empirically indicates otherwise.
In its Order To Dismiss (appen. doc. 1B, p. 56}, the
Court stated, “an administrative complaint must be
sufficiently precise to describe generally the action(s)
or practices(s) that form the basis of the complaint.”
But “precise” and “generally” are oxymoronic. And,
per Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122
§.Ct. 992, 152 L.Ed2d 1 (2002), a complaint cannot be
dismissed because of the sufficiency of facts pre-
sented in the complaint, |.e., a complaint does not
need to be a prima facie case. Nonetheless, the
17
petitioner presented a prima facie case that the
Agency never refuted (court doc. 8).
In downsizing, no federal employee should be de-
nied seniority and retreat rights. Seniority is earned
based on many factors including performance,
achievement, length of service, and career status. It
is a fundamental accrued right per OPM. In the
instant case, it was found that a 10-yr.-younger em-
ployee with less OPM-calculated seniority and doing
the appellant’s exact work was saved from the RIF
simply by illegally changing a CLC (disporate treat-
ment). This was a specific intentional act (fact #5,
supra). Classifying employees to effectuate discrim-
ination, including age, is unlawful by 42 U.S.C.
§ 2000e-2(a)(2) and 29 U.S.C. §623(a)(1) and (a)(2):
“Ti]t shall be unlawful for an employer to limit,
segregate, or classify his employees in any
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
employee...” [emphasis added}.
Petitioner found after demographics were analyzed
by experts (Prof. Paul Switzer, Statistics Dept., Stan-
ford University), that the petitioner was also a victim
of age discrimination (disparate impact). In Adam
et. al. v. Norton, 9" Cir. Doc. No. 04-17365, N.D. CA
No. C-98-2094 CW, the court found that the Agency
in the 1995 U.S.GS. RIF offered special meetings for
only the under-40 age group instructing them how to
avoid being RIF'ed. This included guidelines on how
to re-write their position descriptions with privileged
information from the staffing committee. That is
18
obvious Conspicuous disparate impact denying
hundreds of older employees equal opportunity.
The Civil Rights Acts of 1866, 1870, 1883 (Pendleton
Act), the Lloyd-LaFollette Act of 1912, Title Vil Civil
Rights Act of 1964, 42 U.S.C. §2000e ef. seq., the Civil
Service Reform Act of 1978, 5 U.S.C. 2302, and the
ADEA of 1967, 29 U.S.C. §633(a) are Federal statues
that protected the >etitioner and now allow him
Federal jurisdiction. These statues are the under-
pinnings of equal opportunity. They are part of the
effort to rid government of the spoils system and
bring fairness, merit, and equality to hiring, firing, and
personnel decision-making (appen. doc. 7 & 12).
They iorm the implicit “fairness doctrine” of civil
service. Title Vil prohibits disparate impact against
any protected class of Federal workers and prohibits
discrimination in all aspects of employment, includ-
ing employee classification and RIFs. Petitioner's
1995 OSC letter claimed that an abusive newly-
devised classification scheme using revised codes
specific to the RIF cost him his job. The courts have
erroneously never acknowledged that the petitioner
claimed prohibited personnel practices and prefer-
ential treatment of employees by the Agency.
The 1978 CSRA legislates that merit principles be
promoted for Federal workers and it prohibits vin-
dictiveness, discrimination, and influencing personnel
actions for politically-motivated reasons. This Act
ensures against arbitrary actions and abuses, and it
safeguards against political intrusions, such as de-
scribed by petitioner in 1995 to OSC and to US.
Congressman David Skaggs (appen. doc. 5). 5
19
U.S.C.§2301 (b) (2) and 5 U.S.C. §2302(b)(10}) ban
discrimination of all types, charge OSC with invest-
igation, and state that a supervisor cannot obstruct
equal access to a position. Supervisor Gary Hill, now
a convicted felon, was named in petitioner's 1995
OSC letter (below). Hill's hostile environment and
vindictiveness are recorded in appen.doc. 10 & 11.
Hill's rampant abuse of authority and discretion vio-
lated these statues requiring merit principles. Gary
Hill illegally used politics in making personnel deci-
sions. The OSC letter said that Hill and Butler had
differences of opinion, and Hill was being vindictive
using those differences to color decisions that in-
cluded RIF'ing petitioner. This was payback for an
earlier grievance involving the Agency's misuse of
Bureau of Indian Affair’s project funds.
Reprisals are prohibited forms of discrimination per
Parnell v. Dept. of the Army, 58 MSPR 128, 131 (1993).
5 U.S.C. §2302(b) prevents any Federal employee
authorized to make any personnel action from in-
juring the employment prospects or retention of
others. Gomez-Perez v. Potter, Pos-master General,
U.S. Supreme Court (06-1321) decided 5-27-2008,
allows Federal employees to bring claims for retal-
iation. Revenge (unjust separation) has no place in
the workplace and petitioner wrote OSC because it
has the authority to investigate political intrusion and
prohibited practices in RIFs per 5 U.S.C. §1216. The
1883 Pendleton Act abolished the spoils system and it
is still a central civil service law. It, “protects Federal
employees from dismissal for political reasons.” In 5
U.S.C. §2302(c), all agency heads and officials in
management are required to: 1) prevent prohibited
20
personnel practices including reprisal, 2) comply with
and enforce civil service laws, rules, and regulations,
and 3) ensure in consultation with OSC that Federal
employees are informed of their rights and remedies.
Petitioner's seniority was “willfully and illegally ob-
structed” in violation of 5 U.S.C. 2302(b)(1), (b)(4) and
(b)(6). When classification schemes are specifically
devised to target employees for adverse actions, an
illegal act has occurred. It is a mistake for the trial
court to ignore a timely-appealed complaint of an
illegal act sent to a Federal investigative agency.
Per 5 C.F.R. §351.505, “each agency shall preserve
intact all registers and records relating to an employ-
ee for a least one year from the date the employee
is issued a specific notice." However, the staffing
committee knowingly destroyed evidence used
during their deliberations concerning people rather
than positions (see court doc. 48, p. 10-13 for 15
examples). These documents were shredded at the
end of meetings using newly purchased shredders
(see facts #7, supra). This again shows the abusive,
corupt, and criminal nature of the RIF (spoliation). A
RIF is designed to eliminate positions and is not a
pretext to target people per Drake v. U.S. Dept. of
Cominerce,18 MSPR 475 (1983) and Brodrick v.
District of Columbia, 7 MSPR 203 (1981).
Upon receiving a RIF Notice, petitioner wrote an
official response to OSC raising questions about
prohibited personnel practices, the improper use of
CLCs to selectively target people, denial of seniority,
vindictiveness, deviousness, unfairness, and politica!
21
decision-making by a supervisor Gary Hill. Age dis-
crimination (disparate impact) was not yet known
because the data had not been analyzed by the
experts on either side, and standard deviations and
probabilities not calculated. Such is the nature of
disparate impact — during the train wreck (RIF) each
passenger does not know the full extent of damage
but collectively they read about it later. This OSC
letter follows below (court doc. 1, appen. B, p. 28):
DOCUMENT #1:
UNITED STATES DEPARTMENT OF THE INTERIOR
U.S. GEOLOGICAL SURVEY
Box 25046, M.S. 971
Denver Federal Center
Denver, Colorado 80225
August 25, 1995
Ellen Oskoui
Office of Special Counsel
1730 M. St. NW
Washington, D.C. 20036
Dear Ms. Oskoui:
This letter is in reference to the recent RIF in the
Geologic Division of the U.S. Geological Survey. | am
one of the many government employees who was
terminated and | believe this action was taken as a
result of differences of opinion with a former office
chief, Mr. Gary Hill, who is now the Chief of Program
Planning and Coordination in the Director's Office.
For 17.5 yrs. | have worked for the Branch of
22
4
4
:
:
4
Petroleum Geology as a career employee. A copy
of my RIF notice/termination letter is attached F.Y.1.
This RIF was not about reducing positions in pro-
grams. It was about targeting people for various
reasons. My non-RIF’ed colleagues even say that
the procedure used to eliminate people was totally
unfair. Some positions for the most esoteric research
imaginable were saved because of the people
involved. | think any outside institution, such as the
National Academy of Science, would be appalled
at what positions were cut and which were saved.
As you know, employees were given competitive
level codes, i.e., each person was in his/her own
CLC, so for most, there was no bump-and-retreat
privilege. | can identify at least 20 positions on the
staffing plan for the Geologic Division that | can
easily fill without any retraining. Yet, because | have
my very own unique CLC, |! can be terminated no
questions asked. | have B.S., M.S. and PhD. degrees
in geology, have been project chiefs, principal
investigator, Deputy Branch Chief for 5 yrs. and
Acting Chief, have worked on special high priority
projects at the request of the Armed Services
Committee of the U.S. Congress, have personal
letters from the Dept. of Energy and the Director of
the U.S. Geological Survey referencing my excellent
work on Federally-owned land and national
petroleum assessments, etc., etc. The point! wish to
make is that my position and qualifications (docu-
mented in my 28-page career record on file with
OPM) can easily justify an ability to fill many positions,
so the only way to “get even” by a vindictive-
23
2
5
;
P
a
;
minded person is to cleverly abolish the job defined
by the CLC (059), which incidentally, does not
correctly describe my current duties. My seniority
means absolutely nothing. | am a victim of politics.
There is no other logical explanation for what has
occurred.
| cannot believe that the Office of Personnel Man-
agement has allowed this kind of devious RIF proce-
dure and mistreatment of valued employees to oc-
cur. | chose not to work for industry because of my
belief in the fairness of the Civil Service system. This is
indeed a sad day for all Government employees.
Sincerely,
s/_ William C. Butler
-- end document #1 --
The Agency erroneously stated (Motion To Dismiss,
court doc. 27, p. 14) that, “Butler's OSC letter is of no
import...". The letter speaks for itself and proves
otherwise. The petitioner would have embellished
the claims of unfairness, getting even, mistreatment,
vindictiveness, loss of seniority, improper and abusive
use of one-person CLCs, if OSC had interviewed him
“in detail” as they had stated (appen. doc. 4}.
lll. Filing a class complaint suspends the statute of
limitations for exhaustion of administrative
remedies
24 .
rye Mee ey a.
E
;
3
d
:
Appellant was denied seniority (disparate treatment)
as noted in his OSC letter. He later learned after the
Agency and other experts in Adam ef. al. v. Norton,
9'h Cir. Doc. No. 04-17365, N.D. CA No. C-98-2094 CW
Statistically analyzed the demographics of who was
RIF'ed that he was also a victim of disparate impact,
i.e., in a protected class but whose age put him into
the targeted group. It was found to be statistically
significant that management “cleaned house” of
the over-40 group.
An age-animus atmosphere prevailed in the U.S.GS.
in 1992-95. This was an officially sponsored culture of
discrimination. See appen. doc. 10 and 11 for state-
ments made by Office Chief Gary Hill. Hill is quoted
as saying, “| want to be able to cherry-pick people
for the RIF." Acting Regional Geologist Tom Fouch is
on record as saying to the staffing committee, “Give
me more than 400 new competitive level codes so
everyone has their own.” The Director of the Survey,
Gordon Eaton, also made ageist remarks about
“wanting new blood” and wanting to clean house,
and made jokes about how the older employees
were like dinosaurs. He did this in formal recorded
speeches to his employee audiences at all three GD
regions. He circulated flyers on 3-23-1995 with a Gary
Larson cartoon showing a young dog saying to his
mother, “You gotta help me Mom.... this assignment
is due tomorrow and Gramps doesn't understend
the new tricks.” The cartoon was for those employ-
ees who were potentially going to be RIF'ed (court
doc. 64, attach. J, p. 61). !t was cruel and inappro-
priate. Eaton’s favorite joke was, “What is the dif-
ference between Jurassic Park and the Geologic
25
eae =
a ae. ee SAL,” Poe eee ee Oe
=,’ Se"
cw, 88,
y
i
,
'
i
,
a
is
fj
i
,
;
i
,
be
,
*
|
|
|
Division?” The answer he gave was, “One is an
amusement park filled with dinosaurs and the other is
a movie.” These cartoons and jokes showed sys-
tematic and symptomatic contempt for merit-based
principles, especially for the most senior yet most
experienced and respected scientists who fairly
earned seniority. Some eminent emeritus scientists,
such as Warren Hamilton, resigned in disgust.
The Throckmorton-Nichols case became an age-
discrimination case in 2000 on advice of a Federal
Judge and the class was eventually certified. The
overriding issue for the 74 male and female geolo-
gists was age discrimination. Judge R. Taoka ruled
that the question of law and fact common to class
members predominated over questions affecting
individuals (F.R.Civ.P. Rule 23(b)(3). It is recognized
that because of the concept of fairness, employees
who are “similarly situated” are entitled to similar
treatment. Wilburn v. Dept. of Transportation, 757
f.2d 260, 262 (Fed. Cir. 1985). District court stated,
“[P]laintiff was not similarly situated.... Plaintiff is not a
member of that class because he is not female.”
(appen. doc. 1B, p. 57). Petitioner, however, was a
bona fide male class member. District Court erred.
In May 2003, the Agency made petitioner a bona
fide class member in an age-discrimination action
and never challenged his inclusion. Petitioner was
then bound by its conditions per 29 C.F.R. §1614.204
(c)(3). The Agency argued that appellant was not
“similarly situated”, but it waited until after he filed a
lawsuit in district court in 2007. The Agency argued
for dismissal because the petitioner had no right to
26
ee Se ee ee ee ae eee we en ee eS ee AS ee ee ee Pore Se ee a
7)
“piggyback” his claim with Throckmorton and
Nichols because “he was not similarly situated”.
Petitioner, however, is arguing a class-action right,
not the right to “opt-in” to someone else's case. The
Agency is confused on the distinction between these
two types of actions. Per 29 C.F.R. §1614.204(e}, peti-
tioner was ordered to be a class member. The fol-
lowing two letters, plus the Agency’s own final invest-
igative report, provide evidence to the contrary of
the Agency's allegation of not being “similarly
situated”. Ali three Agency documents appear prior
to case dismissal in the appellant's pleadings (court
doc. 48, p. 62-66, attach. A, B, C, of June 1, 2007).
DOCUMENT #2:
J. Michael Bieszad
Chief Employment Relations Sec.
U.S. Geological Survey, CR
Bldg 53, Box 25046, MS 609
Denver, CO 80225-0046
William Butler
31951 Lodgepole Drive
Evergreen, CO 80439
Dear Mr. Butler:
On May 6, 2003, the Equal Opportunity Commission's
Office of the Federal Operations reversed a decision
issued by EEOC Administrative Judge Ronald Taoka
dated March 23, 2000 and certified an equal op-
portunity class complaint filed by Constance
Throckmorton (Class Agent). The class inciudes
27
7
|
3
;
|
oS a
yy Serr Fes
eee ee ee ee eee ee ee a), PT ae
geologists in the Denver commuting area, 40 years of
age and over, who were separated or downgraded
pursuant to the October 1995 Reduction-in-Force.
The decision requires the United States Geological
Survey, U.S. Department of the Interior, to notify
potential class members of the class certification.
You are hereby notified that you have been ident-
ified as a potential class member in accordance
with 29 C.F.R. §1614.204(e).
Information concerning the specifics of this class
complaint is contained in the attachments to this
letter. Should you have any questions about this
matter please contact the class agent, Constance
Throckmorton.
Sincerely,
s/ Michael Bieszad
Enclosures:
Notice to Potential Class Member
Decision re: Class Action Appeal No. 01A03994,
Hearing No. 320-AO-8196X
-- end Agency document #2--
DOCUMENT #3:
UNITED STATES DEPARTMENT OF THE INTERIOR
U.S. GEOLOGICAL SURVEY
RESTON, Virginia 20192
28
7 see ee et ND ee A
Cay ROU Sn. “gia
.
;
4
5
3
. 4
‘
d
- :
q
C
4
;
;
4
|
;
:
4
:
2
-
:
|
,
|
In Reply Refer To:
Mail Stop 602 December 4, 2003
To: Potential Class Member [William Butler]
From: Patricia $. Hagan, Acting Chief
Office of Equal Opportunity
Subject: Constance K. Throckmorton, Class Agent v.
Gale Norton, Secretary, Department of the
Interior, Appeal No. 01A030994
This is to advise you that on November 24, 2003, The
Equal Employment Opportunity Commission's (EEOC)
Office of Federal Operations issued a denial of re-
quest for [Agency's] reconsideration in the appeal of
the above matter and certified a class of geologists
40 years of age and over in the Denver, CO, area
who were involuntarily separated or down-graded
due to the October 1995 Reduction-in-Force (RIF).
The decision requires the United States Geological
Survey (USGS), U.S. Department of the Interior, to
notify potential class members of the acceptance of
the class complaint in accordance with 29 C.F.R.
§1614.204(e).
A copy of the November 24, 2003, EEOC decision
certifying the above described class is provided
herewith for your information. If you have any
questions concerning this notice or need further
information, you must contact the class repre-
sentative at the following address:
Constance K. Throckmorton
1 Big Cone Spruce
Littleton, Colorado 80127
Phone: 303-972-8620
29
Email: cthrockmorton@msn.com
cc: Constance K. Throckmorton, Class Agent
E. Melodee Stith, Director, Office for Equal
Opportunity
Patricia §. Hagan, Acting Chief, Office of Equal
Opportunity
S. Kaye Cook, Chief, Office of Personnel
Debra Charette, Assist. Solicitor, Personnel
Litigation & Civil Rights, Division of
General Law, Office of the Solicitor, DOI
--end OEO document #3 --
In 2004 the Agency contracted an investigation into
age discrimination among RIF'ed employees. Its final
report is 15 volumes (=7,500 pages). The first 1’
pages are reproduced below. Note that this class is
Throckmorton, Nichols, and others. The petitioner
was a member of “and others”.
DOCUMENT #4:
UNITED STATES GEOLOGICAL SURVEY
REPORT OF INVESTIGATION ON CLASS COMPLAINT
l. DESCRIPTION OF CLASS COMPLAINT
Names of Complainants: Constance Throckmorton
and Kathryn Nichols, ef. al, Class Agents, Case
Number CA-WGS-00-001
Title and Series of Complainants’ and Class
Members’ Positions: Geologists, GS-1350
30
Sweten Te
oy es Bik
2 SS . ?
Cert ie & ase 4? 3
RTT eek Ge RET) Tee Ue Ot ES oe ae one ater
Name and Location of Agency and Unit Involved in
Class Complaint: Central Region, Geologic Division,
U.S. Geological Survey, Denver, Colorado
Date of Alleged Discrimination: October 1995
Kind of Discrimination Alleged: Age, over 40
Nature of Action, ision ndition Giving Rise to
Class Complaint: Reduction in Force
i. DESCRIPTION OF INVESTIGATION
Identity of Investigator: Molly Smith, DSZ Associates,
Inc., 1730 N. Lynn St., Ste. 601, Arlington, VA 22209
Identity of Statistician: Dr. Barry Zamoff, DSZ &
Associates, Inc., 1730 N. Lynn St., Ste. 601, Arlington,
VA 22209
Date Report of Investigation Submitted to Agency:
September 28, 2004
Places of Investigation: Reston, VA and Denver, CO
Dates of Investigation: February 21, 2004 — July 15,
2004
Method of Investigation: On-site and Telephone
interviews; Interrogatories
lll. DESCRIPTION OF BASES AND ISSUES IN CLASS
COMPLAINT
Whether the United States Geological Survey discrim-
3}
inated against Geologists, 40 years of age or older,
on the basis of their age, in the Denver, CO, com-
muting area, who were either separated or down-
graded as a result of the reduction in force in
October 1995.
Complainants assert both disparate treatment and
disparate impact. They assert that the Competitive
Level Code (CLC) was purposely misused to displace
those over 40 and that the result of the RIF disparate-
ly impacted employees over 40.
Disparate treatment based on age: Hazen Paper
Company v. Biggins, 113 S.Ct. 1701 (1993); O’Connor
v. Consolidated Caterers Corp.. 571 U.S. 308 (1996).
Disparate impact: Wards Cove Packing Company v.
Atonio, 490 U.S. 642 (1989); Griggs v. Duke Power
Company, 401 U.S. 424 (1971).
--end cover page of Agency document #4 -
The Agency's report includes discovery from at least
66 class-member complainants, including appellant,
whose interrogatories (appen. doc. 5 & 9) appear as
Exhibit D-13 and are titled at p. 11:
“Affidavit of William Butler: (DOB 1/7/44), Class
Member, former Geologist, GS 1350-13, Office
of Energy and Marine Geology, GD, CR, USGS,
dated May 25, 2004.” {emphasis added].
Note that the appellant is once again clearly ident-
ified as a class member. A class is certified when
32
there is numerosity, commonality, typicality, and
adequacy. A Class issue is superior to individual
litigation when these conditions are met (F.R.Cv.P.
Rule 23(b)(3)) which states,
“(t]he court finds that the questions of law or
fact common to the members of the class
predominate over any questions affecting only
individual members, and that a class action is
superior to other available methods for tne fair
and efficient adjudication of the controversy”.
Petitioner was in a class that was intending to litigate
age discrimination, and he was given the option of
either cooperating and accepting the requirements
or opting out. The appellant did not opt out. There-
fore, because the class was a single common issue,
logic demands that petitioner was similarly situated.
It follows, there is clear error for the district court to
state that petitioner was not similarly situated.
The conclusive information in the above four docu-
ments was submitted repeatedly to the district and
appellate courts. It shows the appellant was similarly
situated as the other 74 geologist class members
who were both male and female in the Central
Region and who were over 40 complaining of age
discrimination. A class action suspends the running
of the statute of limitations for all putative members
of the class until class certification is decided per
American Pipe & Construction Co. v. Utah, 414 US.
538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). When the
class was decertified in May 2005 due to the doc-
trine of res judicata, petitioner timely filed an in-
dividual action per Nelson v. County of Allegheny, 60
F.3d 1010 (39 Cir. 1995). The latter states that from
33
the date the class action is filed until class certif-
ication is decided, the running of limitations is sus-
pended. If a class certification is denied, the
limitations period begins to run again, and class
members have the remainder of the period to file
their own actions. Thus, petitioner was protected
against a limitations defense. A suspension of the
running of the limitations period applies even if the
class certification motion is der ‘ed for lack of com-
monality or typicality per Crown, Cork & Seal Co. v.
Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628
(1983).
Appellants are entitled (5 U.S.C. §7701(a)(1)} toa
MSPB hearing which petitioner was never granted
after making the request four times in writing in a 19-
month period. Per 5 U.S.C. §7703(a)(1}, the peti-
tioner has Federal jurisdiction wherein, “any em-
ployee adversely affected or aggrieved by a final
order or decision of MSPB may obtain judicial re-
view...", and 5 C.F.R. 1201.157 gives the appellant
the right to sue in U.S. District Court. If states that any
final decision of MSPB under 5 U.S.C. §7702 will notify
the appellant of his or her right to petition the EEOC,
or to file a civil action in an appropriate United States
district court. Appellant Butler did both. 5 U.S.C.
§7702 involves any type of discrimination covered by
CRA and ADEA. The administrative judge failed to
docket the individual class members when the class
was decertified per 29? C.F.R. §1614.109(a) and
§1614.204(k). Also, 5 U.S.C. §7702(e)(3) guarantees
nothing will affect the right to trial de novo under Title
Vit CRA and ADEA. ‘Per 42 U.S.C. §2000e-16(c),
34
"...an employee or applicant for employment,
if aggrieved by the final disposition of his
complaint, or by the failure to take final action
on his complaint, may file a civil action as
provided in section 2000e-5 of this title in which
the head of the department, agency, or unit,
as appropriate, shall be the defendant.”
Per 5 U.S.C. §1221(a), an employee has the Right Of
Action with respect to any personnel action taken
against such employee as a result of o prohibited
personnel practice described in 5 U.S.C. §2302(b) (8)
to seek corrective action from MSPB which the ap-
pellant did seek. This statute relates to, “a violation
of any law, rule, or regulation, or gross mismanage-
ment, a gross waste of funds, or an abuse of
authority..." And, per 5 U.S.C. §1221(b) this right of
action (supra) may not be construed to prohibit any
employee from seeking corrective action from the
MSPB before seeking corrective action from the
Office of Special Counsel. Thus, petitioner has again
shown he was entitled to file a complaint with OSC
on Aug. 25, 1995. Complaints are legal if filed in
letter format, such as the petitioner's. The letter was
followed by a Right of Action to MSPB (court doc. 64,
p. 45-45b) timely filed after class decertification.
The EEOC OFO sent petitioner a Notice of Right-to-
Sue dated Dec. 6, 2006 (see court doc. |, cover
page + appen. A, p. 23-24), received Dec. 14, 2006.
The first paragraph of p. 2 follows:
Petition No. 0320070015
MSPB Docket Number DE-0351-05-0377-I-1]
35
PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0900)
This decision of the Commission is final, and
there is no further right of administrative ap-
peal from the Commission’s decision. You
have the right to file a civil action in an ap-
propriate United States District Court, based
on the decision of the Merit Systems Protection
Board, within thirty (30) calendar days of the
date that you receive this decision.
FOR THE COMMISSION:
s/ Cariton M. Hadden, Director
Office of Federal Operations
-- end EEOC’s right-to-sue letter excerpt--
That statement is self-explanatory and unambiguous
regarding the appellant's exhaustion of adminis-
trative remedies. However, the district court made
this statement in the Order To Dismiss (doc. 59, lV B,
p. 8)... “[P]laintiff provides no authority for his con-
tentions that either the EEOC's notice of right to sue
or his communication with his Congressman demon-
strate exhaustion of administrative remedies.” What
does “final decision” and “no further right of admin-
istrative appeal” and “you have the right to file a
civil action” mean if not its literal obviousness? The
petitioner never claimed, as the Agency states, that
a personal meeting and letter to one's Congressman
exhausted remedies, but they do show intent. On
the other hand, the petitioner has argued from
statutes, e.g., 5 U.S.C. §7702(f) allowing timely filing
36
8 ee ede ele ee ie Re | es ee Be ee Ve
ae ee eS Tee eee ee ee ee
ee
“
,
BS
a’
2
et
with OSC (court doc. 30, Plaintiff's Opposition To
Motion To Dismiss, p. 7-8). It is cited 9 times in various
pleadings in the appeals court docketing statement
at 133. 142, 163, 195, 263, 308, 341, 342, 360.
Petitioner has also argued from case precedents
(see court doc. 1, Complaint, #11, p. 42)...
“[W]hen a case is pending, the timeliness for
filing an appeal is extended (American Pipe &
Construction v. Utah, 414 U.S. 538 (1974) and 5
C.F.R. 1201.27(a) present a clear statement of
this timing issue: ‘When a class appeal is filed, 4
the time from the filing date until the judge
issues his or her decision under paragraph (b) 4
of this section is not counted in computing the
time limit for individual members of the
potential class to file individual appeals.
;
Petitioner is allowed per 5 C.F.R. §1201.27(a) to file an
individual action when the class was decertified.
Scott v. Dept. of Treasury, 1 MSPR 42 45 (1996). These
authorities have never been rebutted. Instead, the
Agency has argued false premises of the petitioner
“piggybacking” other actions, and weakly argued
subjective “insufficiencies” of the complaint.
Petitioner has exhausted administrative remedies. In
American Pipe & Construction Co. v. Utah (supra),
the Supreme Court stated the rule that “the com-
mencement of a class action suspends the applic-
able statute of limitations as to all asserted members
of the class who would have been parties had the
suit been permitted to continue as a class action.”
Id. at 554, 94S.Ct. at 766; Andrews v. Orr, 851 F.2d
37
146, 48 FEP 643 (6'" Cir. 1988). Later, the Supreme
Court applied this rule in a Title Vi! case and clarified
the duration and effect of the tolling. Crown, Cork &
Seal Co. v. Parker (supra); There the court stated,
“fo]nce the statute of limitations has been tolled, it
remains tolled for all members of the putative class
until class certification is denied. At that point closs
members may choose to file their own suits or to in-
tervene as plaintiffs in the pending action.” Id. at
354, 103 S.Ct. at 2397-98. [emphasis added}.
it is well established that ina cl tion it is not
necessary for ail class members to have exhausted
administrative remedies; it is sufficient if such reme-
dies are exhausted by one named representative.
Valentino v. United States Postal Service, 511 F.Supp.
917, 25 FEP 24 (D.D.C. 1977), aff.'d, 674 F.2d 56, 218
U.S. App. D.C. 213, 28 FEP 593 (D.C. Cir. 1982);
Beeman v. Middendorf, 425 F.Supp. 713, 18 FEP 778
(0.D.C. 1977); Barrett v. Civil Service Commission, 69
F.R.D. 544, 11 FEP 1089 (D.D.C. 1975); Chisholm v.
United States Postal Service, 665 F.2d 482, 27 FEP 425
(4'» Cir. 1981); Eastland v. Tennessee Valley Authority,
553 F.2d 364, 15 FEP 1115 (S' Cir. 1977), cert. denied,
434 U.S. 985, 98 S.Ct. 611, 54 L.Ed.20 479 (1977): Ellis v.
Naval Air Network Facility, 404 F.Supp. 377, 386, 391
(N.D. Cal. 1975), rev'd on other grounds, 608 F.2d
1308 (9 Cir. 1979). Tne 10" Circuit District Court itself
has held that a named plaintiff is entitled to pursue
individual relief if class certification is denied. See
Monreal v. Potter, 367 F.3d 1224, 93 FEP 1562 (10! Cir.
2004). A named plaintiff, such as the petitioner, wno
has exhausted class administrative remedies is
deemed to have exhausted individual administrative
38
.
:
!
remedies as well, and thus may pursue individual
relief if class certification is denied.
The Agency concedes that on Nov. 10, 1995, two
geologists, Constance Throckmorton and Kathryn
Nichols, who were separated from the U.S.G.S. in the
same RIF as the petitioner, timely initiated EEO
counseling. On Jan. 18, 2000, Throckmorton and
Nichols filed a formal corplaint and sought class
certification. EEOC certiiiec the class as males and
females over age 40 and remanded the case for a
final agency decision. Thus, according to the district
court's findings, the Dept. of the Interior had notice
that plaintiffs who were subjected to this RIF in Oct.
1995, timely filed their complaint. Petitioner Butler
clearly falls within the definition of a male class mem-
ber over age 40 who was RIF’ed in 1995.
On Feb. 15, 2005, The Agency, not surprisingly, issued
its final decision with a finding of “no discrimination”.
Actually, their own 2004 report shows gross discrim-
ination (fact #13, 14, supra). Throckmorton filed an
appeal to MSPB and sought class certification. It was
denied on May 2, 2005 and the petitioner filed a
timely appecl to MSPB. Filing requirements in requ-
lation containing limitations period for individual
administrative employment discrimination complaints
are not jurisdictional and are subject to equitable
tolling. Civil Rights Act of 1964, §701 et seq., 42 U.S.C.
§2000e ef seq. In Andrews v. Orr (supra) the court
found the plaintiffs presented a case for application
of equitable tolling when they reasonably relied on a
pending class action in delaying filing their individual
compiaint, acted with diligence upon being inform-
39
|
ey eee ee ee ey ee ee a Oe
ee ee ee ee eee he, ae en
ed of their need to file a complaint and established
that there was no prejudice to the defendant be-
cause of the class action. Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723,
1726, 80 L.Ed.2d 196 (1984). In Boddy v. Dean, 821
F.2d 346, 45 FEP 586 (6 Cir. 1987) the court ruled that
filing requirements of 29 C.F.R. §613.214 re not
jurisdictional and that equitable tolling was justified
the plaintiffs r n ieved that an
earlier class action would preserve their rights. In
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102
§.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court
held that the charge-filing time requirements are not
jurisdictional prerequisites and are “subject to waiver,
estoppel and equitable tolling.” This argument was
made repeatedly (F.R.Cv.P. Ruleé60 doc. 64, p. 15-27).
In the instant case, petitioner reasonably believed
that he was a member of a class action and
promptly filed an individual Right-Of-Action upon
learning from the class representative that the class
certification had been reversed. The administrative
judge did not inform the petitioner that he had a
right to file individually.
In a disparate impact (group statistical evidence)
ADEA age discrimination action, the Agency has the
burden of proof and persuasion in an affirmative
defense against discrimination. 29 U.S.C. §623(f)(1).
Yet, it has never denied the appellant's claim with
evidence, and has relied only on subject matter
jurisdiction as a defense. See Meacham v. Knolls
Atomic Power Laboratory, aka KAPL, Inc., et. al.
(supra). If the Agency did not believe the appellant
40
should be a class member, they had time to chal-
lenge it; however, they cannot now un-ting that bell.
Petitioner has been denied due process of law
based on his timely 1995 complaint to OSC in
violation of 5 U.S.C. §7702(f}, and also on his timely
individual Right-of-Action appeal to MSPB/EEOC
after the age-discrimination class was decertified.
But, per Title 29 §1614.407, the U.S. District Court is
authorized to hear Federal employment claims.
“[A] claimant who has filed an individual com-
plaint, an agent who has filed a class com-
plaint or a complainant who has filed a claim
for individual relief pursuant to a class com-
plaint is authorized under Title Vil, the ADEA
and the Rehabilitation Act to file a civil action
in an appropriate United States District Court.”
WHY THE SUPREME COURT SHOULD HEAR THIS CASE
The U.S. Supreme Court should hear this case be-
cause the Federal workforce is large, and the ques-
tions presented concerning Constitutional issues of
due process and equal protection apply. The rights
of all Federal employees are potentially affected by
the outcome. The Court can make an important
policy statement about whether management of a
Federal agency can hijack a RIF, i.e., develop the
rules then run the RIF independently of OPM. Arbi-
trary reclassification to effectuate separations in a RIF
clearly violates ADEA. Scientists, wno are temporarily
acting as managers, cannot turn a RIF into a “Lord of
the Flies” scenario and target people. |f this case is
heard, the Court can provide input to discourage
A|
:
.
.
4
5
]
:
\.
-
;
:
‘
F
4
;
further abuses. Future litigants will benefii by a ruling
of expected equality and due process.
There ore multiple issues of wrongful separation in this
case: 1) manipulation of a RIF to favor one group
over another, 2) proof required that a RIF is really
necessary, 3) whether there is truly a Federal duty of
good faith and fair dealings in Agency-run RIFs, 4) do
Federal employees really have accrued seniority
after achieving career status after their first three
years, and 5) what constitutes “sufficiency” for a
complaint of discrimination. The Court would be
expressing an opinion on an important issue: How
corrupt can a Federal RIF be before it is stopped?
A few abusive managers with contempt for merit
principles cannot be allowed to target people. They
must be held to the concept that people fill Federal
positions, and it is the position that is either needed or
eliminated per a legitimate unbiased staffing plan.
Lists of names Cannot be drawn up targeting em-
ployees for separation months before a staffing plan
of positions is in place. Can a legitimate RIF adverse-
ly affect 784 non-managers and zero managers?
Hearing this case will strengthen and clarify Federal
employee rights in class actions and in actions where
EEOC has issued Right-To-Sue Notices. The role of the
investigative U.S. Office of Special Counsel can be
defined with respect to an intake of complaints
compared to MSPB. Can OSC a@rop a complaint
without a follow-up interview with the complainant?
42
A hearing will strengthen merit-based principles and
show that equal employment opportunity is alive
and not just a slogan. Bogus retention registers (1-
person CLC's) and politically-motivated pay-backs
by supervisors are wrong, and if this case is heard,
future RIFs will benefit from the Court's opinion. The
case provides an excellent opportunity to clarify and
resolve similar adverse-action issues. Also, the lower
courts need guidance on the rights of bona fide
class members filing individual actions when a class is
decertified. In sum, this case is awash in important
principles that affect a huge Federal workforce.
CONCLUSION
Although the central issue in this case is procedural
(jurisdiction), it is mixed with several significant sub-
stantive issues. Jurisdiction and due process must be
viewed in the context of the preservation of fairness
and the expectation of preserving rights based on
timely-filed complaints. Jurisdiction is tied to admini-
strative remedies and remedies are tied to factual
matters. Matters which have nothing to do with job
performance, such as politics and vindictively tar-
geting people, cannot trump merit and the doctrine
of fairness and equality in employment.
Petitioner has shown that there was an environment
of hostility toward older employees and unfairness
associated with the 1995 U.S.G.S. RIF. There is irrefut-
able evidence of this age-animus culture, particular-
ly shown by the abusive experimental CLC method-
ology. It denied: seniority, bump-&-retreat rights, and
the right to compete for 100 positions immediately
43
_ added back and filled by employees under age 40
without competition after the RIF. The statistical-
disparity proof of this discrimination is overwhelmingly
in favor of petitioner.
Equality in Federal employment exists, but this case
shows the doctrine occasionally needs reinforce-
ment. Petitioner has attempted in good faith to
bring the inequality to the forefront in both the OSC
letter and as a member of a certified class action
claiming age discrimination. Petitioner's rights did
not just evaporate when the class was decertified. :
Thus, he seeks to invoke this well-established
“equality doctrine” having exhausted all admini-
strative remedies per EEOC's Notice Of Right-To-Sue.
The case was dismissed on a subjective technicality -
whether or not the petitioner exhausted his admini- |
strative remedies. Fairness says a Right-To-Sue letter |
answers this and it should be honored. Due process ;
is requested from the U.S. District Court because it
has jurisdiction for the types of prohibited practices
described, and which were sufficiently made known
‘ to US. Office of Special Counsel and to the Agency
through the class action.
: This petition should be granted to reverse a clear
: error; jurisdiction can be established, and the case
can finally be tried on its objective merits.
William C. Butler, petitioner pro se
November 26, 2008
44
APPENDIX DOCUMENT 1A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-00055-MJW-CBS
WILLIAM C. BUTLER,
Plaintiff,
V.
DIRK KEMPTHORNE, Sec., U.S. Dept. of the Interior,
Defendant.
JUDGMENT
Pursuant to and in accordance with the Order on
Defendant's Motion to Dismiss (document 59)
entered by the Honorable Michael J. Watanabe,
United States Magistrate Judge on August 24, 2007,
incorporated herein by reference, it is ORDERED that
the Defendant's Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(1), which was filed on April 3, 2007
(document 27) is granted. It is FURTHER ORDERED
that judgment is entered in favor of Kirk Kempthorne,
Secretary, U.S. Department of the Interior, and
against William C. Butler. If is FURTHER ORDERED that
the Complaint and this civil action are dismissed with
prejudice.
Dated at Denver, Colorado this 24' day of Aug. 2007
45
4 FOR THE COURT:
a GREGORY C. LANGHAM, CLERK
By: s/ Chris Vagner
Chris Vagner
Chief Deputy Clerk
APPENDIX DOCUMENT 1B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 07-cv-00055-MJW-CBS
WILLIAM C. BUTLER,
Plaintiff,
Vv.
DIRK KEMPTHORNE, Sec., U.S. Dept. of the Interior,
Defendant.
ORDER ON
DEFENDANT'S MOTION TO DISMISS (Docket No. 27)
MICHAEL J. WATANABE
United States Magistrate Judge
This case is before this Court pursuant to the Order Of
Reference Pursuant to 28 U.S.C. § 636(c) filed on
March 28, 2007, and the parties’ unanimous consent
to disposition of this action by a United States
Magistrate Judge.
|. PLAINTIFF'S ALLEGATIONS AND CLAIM
Plaintiff, a geologist, claims that Defendant discrim-
inated against him based on his age when he was -
separated from the United States Geological Survey
4/7
(USGS), an agency within the United States Depart-
ment of the Interior, in October 1995 during a
reduction in force (RIF). Plaintiff alleges thai he was
employed by the USGS for more than seventeen
years when, on August 14, 1995, he received a
notice stating that his position would be eliminated
on October 14, 1995. On or about October 14, 1995,
the USGS implemented the RIF and Plaintiff was
separated from the USGS. Plaintiff asserts that he was
fifty-one years old at the time of his separation.
Plaintiff’s claim of age discrimination is asserted
pursuant to the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. §§ 621-634.
ll. PENDING MOTION
On April 3, 2007, Defendant’s Motion to Dismiss Pur-
suant to Fed.R.Civ.P. 12(b)(1) (docket no. 27) was
filed. Defendant argues that the Court lacks subject
matter jurisdiction because Plaintiff failed to exhaust
administrative remedies. On April 6, 2007, Plaintiff
filed his response to the motion to dismiss. On April 27,
2007, Defendant filed a reply and on April 30, 2007,
Plaintiff filed an amended response. The Court has
carefully considered the motion to dismiss, the re-
sponses, the reply thereto, and the applicable case
law and Federal Rules of Civil Procedure. The Court
now being fully informed enters the following order.
i
lil. STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure
allows the Court to dismiss an action if the Court
lacks subject matter jurisdiction. Because federal
48
courts are courts of limited jurisdiction, there is a
presumption against the existence of jurisdiction
and “[t}he party invoking the jurisdiction of the court
has the duty to establish that federal jurisdiction does
exist." Basso v. Utah Power & Light Co., 495 F. 2d 906,
909 (10m Cir. 1974): see also United States v. Bustillos,
31 F.3d 931, 933 (10m Cir. 1994) (noting that “[f]he
party seeking to invoke the jurisdiction of a federal!
court must demonstrate that the case is within the
court's jurisdiction.”).
Motions to dismiss a complaint for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) generally
take one of two forms. See Holt v. United States, 46
F.3d 1000, 1002-03 (10in Cir. 1995).
First, a facial aitack on the complaint's
allegations as to subject matter jurisdiction
questions the sufficiency of the complaint. In
reviewing a facial attack on the complaint, a
district court must accept the allegations in the
complaint as true. Secon”? a party may go
beyond allegations contained in the com-
plaint and challenge the facts upon which
subject matter jurisdiction depends. When
reviewing a factual atte ok on subject matter
jurisdiction, a district court may not presume
the truthfulness of the complaint's factual
allegations. A court has wide discretion to
allow affidavits, other documents, and a
limiled evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1)}. In such
instances, a court's reference to evidence
outside the pleadings does not convert the
motion to a Rule 56 motion.
49
Id. (internal citations omitted). The Court must con-
vert a Rule 12(b6)(1) motion to dismiss into a summary
judgment motion if “resolution of the jurisdictional
question is intertwined with the merits of the case.”
Id. at 1003. “The jurisdictional question is intertwined
with the merits of the case if subject matter juris-
diction is dependent on the same statute which
provides the substantive claim in the case.” Id.
Defendant's motion to dismiss for lack of subject
matter jurisdiction in the instant action falls into the
second category because Defendant is challenging
the factual basis for jurisdiction and not the suffi-
ciency of the complaint. The Court also finds that
the issue of exhaustion of administrative remedies is
not intertwined with the merits of the case. Therefore,
the Court will consider the documents submitted by
the parties that are relevant to the exhaustion issue
and will not convert Defendant's motion into a
motion for summary judgmert.
IV. DISCUSSION
A. Factual Background. As noted above,
Plaintiff was notified of the pending RIF in an August
14, 1995, letter. A copy of the RIF notice is attached
to the Complaint at Appendix B, pages 28A-28B. The
RIF notice advised Plaintiff that he could challenge
his separation by appealing to the Merit Systems
Protection Board (MSPB) within thirty days after the
effective date of the RIF. On August 25, 1995, Plaintiff
wrote a letter to the Office of Special Counsel of the
Department of the Interior (OSC) challenging his
pending separation. A copy of Plaintiff's August 25
50
|
|
oh gS aed
letter to the OSC is attached to the Complaint at
appendix B, page 28. Plaintiff complained in the
August 25 letter that “[t]his RIF was not about re-
ducing positions in programs. It was about targeting
people for various reasons.” (Compl. at App. B, p.28.)
Plaintiff specifically asserted that his termination was
“a result of differences of opinion with a former office
chief” and that he was “a victim of politics.” (Id.)
Plaintiff did not file an appeal fo the_MSPB within
thirty days after the effective date of the RIF.
Two other geologists, Candace Throckmorton and
Kathryn Nichols, who also were separated from the
USGS in the same RIF, initiated counseling with an
equal employment opportunity (EEO) counselor on
November 10, 1995. According to the report filed by
the EEO counselor, a copy of which is attached to
Defendant's motion to dismiss as Exhibit A-3,
Throckmorton and Nichols
alleged that they and all other female
Geologists . . . age 40 or older (as of October
15, 1995) in the Denver commuting area who
were separated or changed to a lower grade
as a result of the U.S. Geological Survey (USGS)
reduction-in-force (RIF) effected on October
14, 1995, were discriminated against illegally
by disparate impact as compared to men
similarly situated.
(Def.’s Mot. to Dismiss at Ex. A-3, 9.2.)
On January 18, 2000, Throckmorton and Nichols filed
a formal complaint regarding the October 1995 RIF.
A copy of the January 18 formal complaint is at-
tached to Defendant's Motion to Dismiss as Exhibit A-
5]
1. Throckmorton and Nichols sought class certifi-
cation for their complaint and alleged that “[f]he
class consists of all female geologists . . .. age 40 or
older (as of October 15, 1995) in the Denver com-
muting area who were involuntarily separated or
downgraded in a discriminatory manner through
those RIF actions.” (Def.'s Mot. to Dismiss at Ex. A-1,
p.2.) An administrative judge initially denied class
certification. However, in March 2003, the Equal
Employment Opportunity Commission (EEOC)
reversed the administrative judge's class-certification
decision and ordered that the complaint be allowed
to proceed on a class basis. The EEOC determined
that the appropriate class included both male and
female geologists over age 40 who were affected
adversely by the RIF. The EEOC also remanded the
matter to the USGS for a final agency decision on the
issue Of whether the class was subjected to discrim-
ination on the basis of age in the RIF. On February 15,
2005, the agency issued a final agency decision
finding no discrimination.
Pursuant to the relevant regulations, Throckmorton
then filed an appeal of the final agency decision to
the MSPB and again sought class certification. On
May 2, 2005, the administrative judge assigned to the
case denied the request for class certification.
On June 8, 2005, Plaintiff filed an appeal to the MSPB
challenging the 1995 RIF. On June 24, 2005, an ad-
ministrative judge issued an order to show cause to
Plaintiff regarding the timeliness of his appeal. On
July 12, 2005, the administrative judge dismissed
Plaintiff's appeal as untimely. Plaintiff then filed a
52
:
3
|
.
3
“
,
s
~~ eo’. ea
ie
eS et eS ee
a, eee ee. eee oe
5
;
'
:
E
:
:
7
i
7
petition for review of the administrative judge's
decision. The MSPB consolidated Plaintiff's petition for
review with that of Mary Carey. On September 27,
2006, the MSPB issued its final decision denying the
consolidated petitions for review and upholding the
determinations that Plaintiff's and Carey's appeals
were untimely. A copy of the MSPB's September 27
order is attached to Defendant's Motion to Dismiss as
Exhibit A-2. The MSPB specifically considered whether
Plaintiff and Carey “intended to preserve their right
to file Board appeals but delayed doing so because
they reasonably believed that Throckmorton and
Nichols were pursuing EEO counseling and a discrim-
ination claim on their behalf.” (Def.’s Mot. to Dismiss
at Ex. A-2, p.9.) The MSPB concluded “[t}hat is
not what happened, however.” (id.) The MSPB
specifically stated that neither Carey nor Butler had
shown or even alleged, that as to the first 8
years in the 10-year period between the RIF
and their filing of these appeals, they delayed
filing with the Board based on a belief that
their rights were being preserved because
others were pursuing relief on their behalf at
the agency level and before the EEOC.
(id. at 10.) The MSPB ultimately concluded that “for
the first 8 years after the RIF, [Carey and Butler] did
not wish to pursue the EEO process at the agency
level and did not wish to file Board appeals.” (id. at
11.)
Plaintiff appealed the MSPB's September 2006
decision to the EEOC. On December 14, 2006, the
EEOC determined that it lacked jurisdiction and
denied consideration of Plaintiff's appeal because
53
3
,
:
,
;
j
j
,
hb
.
the MSPB had dismissed Plaintiff's appeal as untimely
and did not consider the merits of his claim of dis-
crimination. The EEOC notified Plaintiff in its Decem-
ber 14 decision of his right to seek judicial review.
Plaintiff then filed the instant action claiming that
Defendant eliminated Plaintiff’s position with the
USGS on the basis of Plaintiff's age in violation of the
ADEA.
B. Legal Analysis. The ADEA “broadly prohibits
arbitrary discrimination in the workplace based on
age.” Lorillard v. Pons, 434 U.S. 575, 577 (1978) (citing
29 U.S.C. § 623(a)). Without addressing the merits of
Plaintiff's age discrimination claim, Defendant argues
that this action must be dismissed for lack of subject
matter jurisdiction because Plaintiff failed to exhaust
administrative remedies. “A Plaintiff's exhaustion of
his or her administrative remedies is a jurisdictional
prerequisite to suit under the ADEA.” Shikles v. Sprint/
United Mgmt. Co., 426 F.3d 1304, 1317 (10m Cir. 2005).
In general, an individual must file a charge with the
EEOC prior to filing suit pursuant to the ADEA so that
the agency “can attempt to eliminate the alleged
unlawful practice through informal methods.”
Lorillard, 434 U.S. at 580; see also 29 U.S.C. § 623(d):
Shikles, 426 F.3d at 1308. After allowing the EEOC sixty
days to attempt to conciliate the alleged unlawful
practice, and assuming the EEOC has not filed suit
on the individual's behalf, the individual may file suit.
See Shikles, 426 F.3d at 1308 (citing 29 U.S.C. § 623(c)
& (d)}). “To the extent that the charge filing require-
ments of the ADEA and Title Vil are similar, courts
must construe them consistently.” Id. at 1309.
54
The issue of exhaustion of administrative remedies is
somewhat more complicated in the instant action
because Plaintiff's claim of age discrimination stems
from an employment action that also was appeal-
able to the MSPB. This is known as a mixed case. See
29 C.F.R. § 1614.302(a). An aggrieved employee ina
mixed case has the option of filing an administrative
complaint with the EEOC or filing an appeal with the
MSPB, but not both. See 29 C.F.R. § 1614(b). If the
employee initially files an appeal with the MSPB and
ultimately disagrees with the final decision of the
MSPB, the employee then may petition the EEOC for
review of the allegedly discriminatory action. See 5
U.S.C. § 7702(b)(1).
Defendant argues that Plaintiff failed to exhaust
administrative remedies because Plaintiff never filed
a timely appeal to the MSPB and he never filed a
complaint of discrimination with the EEOC. Plaintiff,
on the other hand, argues that this action should not
be dismissed for failure to exhaust administrative
remedies because the EEOC issued to him a notice
of right to sue, because he filed a timely challenge
to the RIF in August 1995 when he sent a letter to the
OSC complaining about the RIF, because he wrote
to and spoke with his Congressman in 1995 regarding
the RIF, and because the administrative proceedings
initiated by Throckmorton and Nichols satisfy the
requirement that administrative remedies be ex-
hausted. Plaintiff provides no authority for his con-
tentions that either the EEOC'’s notice of right to sue
or his communication with his Congressman demon-
strate exhaustion of administrative remedies.
55
“7
, a. 2
oe
}
:
:
5
4
:
3
:
3
A
;
Therefore, the Court finds that neither the EEOC's
notice of right to sue nor Plaintiff's communication
with his Congressman provide any basis to deny
Defendant's motion to dismiss.
Plaintiff's August 25, 1995, letter to the OSC also does
not demonstrate that he has exhausted adminis-
trative remedies because Plaintiff never alleged in
that letter that he was discriminated against on the
basis of his age. A relevant regulation regarding
cases of employment discrimination under Title VII
provides that an administrative complaint a be
sufficiently precise . . . to describe generally the
action(s) or practice(s) that form the basis of the
complaint.” 29 C.F.R. § 1614.106(c). As noted above,
Plaintiff complained in the August 25 letter only that
his termination was “a result of differences of opinion
with a former office chief” and that he was “a victim
of politics." (Compl. at App. B, p.28.) Nothing in
Plaintiff's August 25 letter alerted the USGS to the
claim Plaintiff is asserting in this action that he was
terminated because of his age. Therefore, the Court
finds that Plaintiff's August 25 letter does not satisfy
the exhaustion requirement.
Plaintiff's argument that the administrative proceed-
ings initiated by Throckmorton and Nichols satisfy the
requirement that administrative remedies be ex-
hausted also lacks merit.
Federal courts universally hold that an
individual who nas not filed an administrative
charge can opt-in to a suit filed by any similarly
situated plaintiff under certain conditions. This
so-called ‘single-filing rule’ generally allows a
56
plaintiff, who did not file an EEOC charge, to
piggyback on the EEOC complaint filed by
another person who is similarly situated. The
policy behind the single filing rule is that it
would be wasteful, if not vain, for numerous
employees, all with the same grievance, to
nave to process many identical complaints
with the EEOC. As long as the EEOC and the
company are aware of the nature and scope
of the allegations, the purposes behind the
filing requirement are satisfied and no injustice
or contravention of congressional intent
occurs by allowing piggybacking.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095,
1110 (10m Cir. 2001) (citations and internal quotation
marks omitted). Plaintiff was not similarly situated to
Throckmorton and Nichols because they complain-
ed of discrimination against female geologists over
age forty. Plaintiff is not a member of that class be-
cause he is not female. Therefore, the administrative
proceedings initiated by Throckmorton and Nichols
did not make the USGS or the EEOC aware of the
nature of Plaintiff's allegations of age discrimination.
Furthermore, the fact that the EEOC in 2003 expand-
ed the Throckmorton and Nichols class to include all
geologists over the age of forty does not demon-
strate that Plaintiff exhausted administrative reme-
dies. “[G]overnment ‘agencies do not waive a
defense of untimely exhaustion merely by accepting
and investigating a discrimination complaint.’”
Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001)
(quoting Bowden v. United States, 106 F.3d 433, 438
57
—_ Pree es
.
|
(D.C. Cir. 1997}). Plaintiff's claim of age discrimination
was not included in the administrative proceedings
timely filed by Throckmorton and Nichols in 1995. In
fact, as the MSPB found in its September 2006 deci-
sion, Plaintiff did not wish to pursue administrative
remedies for the first eight years after the RIF was
implemented in 1995. Therefore, consideration of
Plaintiff's claim in 2003 does not excuse his failure to
exhaust administrative remedies.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Defendant's Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b}(1) (docket no. 27) is
granted. This case is dismissed with prejudice.
OS ee eee Be ee Ae, ee ee) ee ee ee gS ee ")
Dated: August 24, 2007
Denver, Colorado
S/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
On Nh i ee ee) nS eee
MENT 2
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
WILLIAM C. BUTLER,
Plaintiff-Appeliant,
Vv.
DIRK KEMPTHORNE, Secretary,
U.S. Department of the Interior,
Defendant-Appellee
No. 07-1490
(D.C. No. 1:07-CV-55-MJW-CBS, D. Colo.)
ORDER AND JUDGMENT*
Before KELLY, McKAY, and BRISCOE, Circuit Judges
Pro se plaintiff William C. Butler appeals from the
. dismissal of his employment case for lack of subject
matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).'
He also challenges the denial of his Fed.R.Civ.P. 59(e)
motion to alter or amend judgment and the denial
* (see next page).
' All district court proceedings were conductec before a
magistrate judge with the consent of the parties. See 28
USC § 636(c)(1).
59
of his Fed.R.Civ.P. 60(b) motion for relief from
judgment order.
The district court set forth a detailed summary of the
pertinent facts and we need not restate them here.
R.Doc. 59 at 4-7. suffice it to say that plaintiff, a
geologist, filed this action in 2007 alleging that his
former employer, the United States Geological!
Survey {USGS) (an agency within the United States
Department of Interior (DOI}), violated 29 U.S.C.
§ 633a, a provision of the Age Discrimination in
Employment Act (ADEA), when it eliminated his
position on the basis of his age during an October
1995 reduction in force. Defendant countered with
a Rule 12(b)(1) motion to dismiss, asserting that the
district court lacked subject matter jurisdiction to
consider plaintiff's complaint because he had failed
to exhaust his administrative remedies before filing
suit. That is, plaintiff never filed a timely appeal to
the Merit Systems Protection Board (MSPB) and he
never filed a complaint with the Equal Employment
Opportunity Commission (EEOC).
The district court agreed with defendant. Specif-
*After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed.R.
App.P. 34(a)(2); 10 Cir. R. 34.1(G). the case is therefore
ordered submitted without oral argument. This order and
judgment is not bincing precedent, except under the doc-
trines of law of the case. res judicata, and collateral estopel. It
may be cited, however, for its persuasive value consistent with
Fed. R.App.P. 32.1 and 10" Cir. R. 32.1.
60
ically, it concluded that the EEOC's right to sue letter
did not “demonstrate exhaustion of administrative
remedies" and therefore did not “provide any basis
to deny Defendant's motion to dismiss.” R.Doc. 59 at
8-9. Plaintiff's August 1995 letter to the Office of
Special Counsel (OSC) for the DOI also failed to
demonstrate that plaintiff had exhausted his
administrative remedies because he “never alleged
in that letter that he was discriminated against on
the basis of his age.” id. at 9. Nor could plaintiff rely
on the administrative proceeding initiated by two
women to satisfy the exhaustion requirement
because he “was not similarly situated to" them
since “they complained of discrimination against
female geologists over age forty.” Id. at 10.
Moreover, the fact that the EEOC expanded the
women's “class to include all geologists over the age
of forty [did] not demonstrate that Plaintiff exnausted
administrative remedies.” Id. Tne district court
therefore granted defendant's Rule 12(b)(1) motion
and entered judgment. Plaintiff then filed a “Motion
to Alter Order on Defendant's Motion to Dismiss and
Judgment for Dismissal,” that the district construed as
a Fed.R.Civ.P. 59(e) motion, and denied. R.Doc. 63.
Finally, plaintiff filed a ;motion for relief from
judgment or order pursuant to Fed.R.Civ.P. 60(b),
that the district court also denied. R.Doc. 65. This
apped! followed. Liberally construing plaintiff's pro se
appellate filings, Cummings v. Evans, 161 F.3d 610
(10% Cir. 1998), he asserts — os far as we can discern -
that the district court erred by dismissing his case and
by denying his post-judgment motions because: (1)
the EEOC's right to sue ietter demonstrated that he
had exhausted his administrative remedies, (2) his
6]
August 1995 letter to the OSC served to exhaust his
administrative remedies, (3) the court should have
employed equitable tolling, and (4) he was “part of
a class complaint that was timely filed.” And as such,
“there was no requirement for him to exhaust any
remedies or file anything.” Aplit. Opening Br. At 18.
Our jurisdiction arises under 28 USC § 1291. We
review de novo a dismissal for lack of subject matter
jurisdiction pursuant to Rule 12(b)({1) and review
findings of jurisdictional facts for clear error. Davis ex
rel. Davis v. United States, 343 F.3d 1282, 1294-95 (10
Cir. 2003). “Because the jurisdiction of federal courts
is limited, there is a presumption against our juris-
diction, and the party invoking federal jurisdiction
bears the burden of proof.” Merida Delgado v.
Gonzales, 428 F.3d 916, 919 (10' Cir. 2005) (quotation
omitted). We review the district court’s denial of a
Rule 59(e}) motion for an abuse of discretion. See
Loughridge v. Chiles Power Supply Co., 431 F.3d
1268, 1275 (10 Cir. 2005); Servants of the Paraclete
v. Does, 204 F.3d 1005, 1012 (10 Cir. 2000) {identi-
fying “[g]rounds warranting a motion to reconsider”).
We review the district court’s denial of a Rule 60(b)
motion for an abuse of discretion as well, keeping in
mind “that Rule 60(b) relief is extraordinary and may
be granted only in exceptional circumstances.”
Beugler v. Burlington N. & Santa Fe Ry. Co., 490 F.3d
1224, 1229 (10! Cir. 2007) (quotation omitted).
Having reviewed the briefs, the record, and the of -
plicable law pursuant to the above-mentioned
standards, we conclude that plaintiff has failed to
identify any reversible error in this case or demon-
62
strate that the district court abused its discretion in
denying his post-judgment motions. This case is a
“mixed case” .vhich affords plaintiff the option of
filing an appeal with the MSPB or an administrative
complaint with the EEOC. Here, plaintiff did neither.
Plaintiff cannot rely on his 1995 letter because it did
not allege or complain about age discrimination.
Obviously, he was not similarly situated to them. If he
had been similarly situated, he could have relied on
their administrative exhaustion, and the later
expansion of their class action claims to include sex
and age discrimination. Plaintiff's age discrimination
claim, however, was unexhausted and did not
qualify as a claim that other class members had
exhausted. Plaintiff also contends that he need not
exhaust if another class member has exhausted. But
he cites no authority for this concept where his claim
was not the same as the claim exhausted by the
initial class rmembers. We therefore AFFIRM the
judgment of the district court for the same reasons
set forth in its order on defendant's motion to dismiss
and AFFIRM the district court's orders denying
plawstiff's Rule 59(e) and Rule 60(b) motions.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
63
FS
’
atte te gl a” me 1 et Be Or ie ee
APPENDIX DOCUMENT 3
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
WILLIAM C. BUTLER,
Plaintiff-Appellant,
Vv.
DIRK KEMPTHORNE, Secretary,
U.S. Department of the Interior,
Defendant-Appellee
No. 07-1490
(D.C. No. 1:07-CV-55-MJW-CBS, D. Colo.)
ORDER
Before KELLY, McKAY, and BRISCOE, Circuit Judges
Appellant's petition for rehearing is denied.
Entered for the Court,
s/ Elisabeth A. Shumaker, Clerk
ELISABETH A. SHUMAKER, Clerk
[filed Septermber 3, 2008}
64
"
‘
;
.
APPENDIX D ENT 4
U.S. OFFICE OF SPECIAL COUNSEL
1730 M Street, N.W., Suite 300
Washington, D.C. 20036-4505
November 30, 1995
Mr. William C. Butler
31951 Lodgepole Drive
Evergreen, CO 80439-6656
Re: OSC File No. MA-95-2067
De ur Mr. Butler:
In accordance with 5 U.S.C. §1214(a)(1)}(C) (i) the
Office of Special Counsel is required to advise you of
the status of your complaint within 90 days after our
initial notice to you that we had received your com-
plaint. This letter is to advise you that this matter has
been assigned to me for review. The Office of
Special Counsel receives a large number of com-
olaints and it is our general practice to review such
matters in the order in which they are received. If |
have not already done so, | may be contacting you
in the near future to discuss your complaint with you
in detail. If you have any questions concerning this
matter please call me at (202) 653-7188 or on our toll-
free number at 1-800-872-9855.
Sincerely,
s/ J. Sandra Thomas
Complaints Examiner
65
4
APPENDIX DOCUMENT 5
31951 Lodgepole Dr.
Evergreen, CO. 80439
October 3, 1995
Ce ee eee ee ee
Representative David Skaggs
1124 Longworth House Office Bidg.
Washington, D.C. 20515
», zt» Aes eee
Dear Representative Skaggs:
On August 14, 1995, the Geologic Division of the U.S. |
Geological Survey notified some of its employees
that they were being terminated, i.e., the Division
had engineered a RIF (reduction in force) of about
540 federa' employees. | am sure that you are
awore oi ail the details. | was one of those RIF’'ed
employees. | had 17.5 yrs. of professional service in
the Branch of Petroleum Geology, having been a
Deputy Branch Chief, project supervisor and
research geologist. | do not mind being RIF’ed if
indeed the Federal Government wishes to downsize _
according to Civil Service guidelines. However, the
reduction was manipulated by individuals who
wished to target people rather than positions. How
can Civil Service reconcile the fact that talented,
good people were placed in their own competitive i
level codes so their jobs could be eliminated?
Swe ee ee Ne ee ee eee eee
ur +P a hee ak
Take myself for example... (1) | have BS, MS, and PhD
degrees in geology with many types of honors and
awards, (2) | put in fully sotisfactory work according |
to my supervisors, (3) | have a multitude of inter- |
66
disciplinary talents, and (4) | have authored several
papers at the request of the U.S. Armed Services
Committee. But, the message | am receiving is that |
am not qualified to do any other job in an organi-
zation of thousands of people because | am the only
person in my competitive level code. Where are my
“bump and retreat” rights? The Office of Personnel
Management should be ashamed to allow all these
excellent people be fired because some ambitious
power-seekers in the Survey wanted to “clean
house” for whatever reasons. We had been told for
nearly a year that cuts could happen equally across
the board, i.e., to managers/ supervisors and the rest
of the workforce. You get one guess as to how
many managers and supervisors were cut! [none].
My purpose in writing is just to let you know that both
my RIF’ed and unkRIF'ed colleagues think this situation
smells. We ali came to Civil Service because of its
reputation of being fair. What happened?
Sincerely,
s/ William C. Butler
67
" -
if
-
¢
+
APPENDIX DOCUMENT 6
The following article appeared in the Rocky
Mountain News, Denver, CO, June 16, 1997, front
page. Parts indicated by = are redacted for brevity.
FEDS’ BONUSES RAISE IRE
Fired Workers Say Geological Survey's Incentive
Program Is A Slap In The Face: Some USGS Workers
Got Bonuses After Layoffs
By Burt Hubbard RMN staff writer
A federal agency of Colorado paid about $275,000
in bonuses last year after laying off 167 people.
Nationwide, the geologic division of the U.S. Geo-
logical Survey handed out more than $800,000 in
incentive awards in the year after a major reduction
in staff that initially saw about 500 people lose their
jobs. Most of the money was paid near the end of
the fiscal year. Workers who lost their jobs said the
bonuses are a slap in the face. They had to fire in
the course of the year 16 or 17 extra people to get
the money to pay out bonuses. = One geologist in
Colorado got five bonuses totaling more than $5,000,
and several others got two bonuses within days that
exceeded $5,000. = The bonuses became an issue
after the layoffs in the geologic division in October
1995 reduced staffing to about 1,600 nationwide and
500 in the central region headquarters in Lakewood.
That set off a bitter battle that led to appeals of
many of the dismissals. A \ist of the bonuses issued for
the year ending Sept. 30, 1996 was obtained through
the Freedom of Information Act. = In the 1996 fiscal
year, about $830,000 was handed out, with 70%
coming in the fiscal year's final two months, August
68
and September. In the Lakewood office about 90%
of the $275,000 came in the same two months.
About one-third of the employees received the
incentives. That led [RIF'ed employees] to suspect
that the agency was freely spending money it had
saved from eliminating jobs. = Employees are limited
to no more than two bonuses in each category
during the year, but Plasker said five or six nation-
wide, including two in Colorado, exceeded the limit.
A Lakewood geologist received five bonuses totaling
more than $5,000. Four of them were issued in
August and September. in Colorado, a geologist got
$2,182 on Sept. 19 and $3,182 more the next day. A
geochemist received $3,182 on Sept. 19 and four
days later received $2,727 more. = Howard Wilshire,
who was initially laid off from the California office
and later reinstated, said a letter from Gene Whitney,
when he was head of one of the division’s teams,
shows the agency was in a rush to spend its excess
money. “We have a problem. It's a GOOD
problem, but a problem nevertheless” began the
memo by Whitney written on Aug. 1, 1996.
“According to our books, the Central Energy Team
still has an enormous amount of UNSPENT OE
{operating expenses) in projects. Although we may
be happy because we're rich, the problem is that it
may not be humanly possible (within our purchasing
system) to spend that money between now and the
end of the fiscal year, Sept. 30'.” The memo then
urges staffers to “PLEASE SUBMIT YOUR REQUISITIONS
ASAP.” They’re dumping the money,” Wilshire said.
APPENDIX DOCUMENT 7
The following article appeared in the Rocky Moun-
tain News, Denver, CO, Dec. 9, 1997, over two years
after the U.S.G.S. RIF.
‘Designer Downsizing’ Has Given Federal Managers
New Tool To Ax Employees
In a recent letter on federal work force diversity,
Janice Lachance, director of the U.S. Office of
Personnel Management, said the current admin-
istration “proudly claims credit for downsizing the
federal work force in a manner that does not
adversely affect any (minority) group.”
Lachance's perception of the truth of federal down-
sizing would be greatly enhanced if she would
review what occurred in 1995 at the Interior Depart-
ment's U.S. Geological Survey with the firing of 550
employees, one-quarter of the Geologic Division's
work force. The agency's own documents present-
ed at just concluded public hearings revealed that
professional women were released, reassigned or
demoted at arate 70 percent greater than their
male counterparts. Older scientists were released at
a greater approaching 100 percent greater than
their younger counterparts and, for good measure,
every scientist who had a pending Equal Employ-
ment Opportunity complaint was separated. Would
it be surprising that every manger at the USGS was
retained?
The agency ignored traditional Civil Service regu-
lations and created a system in which incividual
70
employees could be targeted. Nearly every
employee was classified into a unique position and
deemed to have no interchangeable skills or duties
with any other employee, no matter how trivial the
tasks. By failure to correct or even acknowledge this
injustice, OPM now appears to support this “designer
downsizing” so federal managers have a tool to
“reinvent” the patronage system. It took a public
nearing to reveal the facts.
Perhaps the administration is secretly proud of this
atrocity and will continue the cover-up through legal
battles and doublespeak. The government has
already spent over $10 million in defense of this
devastation of diversity. Taxpayers deserve better.
G. Michael Reimer, Golden, CO
;
y
d
;
2
|
i
7\
ee eee ee ee eee.
>)
}
’
:
APPENDIX DOCUMENT 8
The following article appeared in the Boulder Weekly
newspaper, Boulder, CO, Sept. 26, 1996, p. 10-12.
Parts identified by = are redacted for brevity.
BAD SCIENCE
Politics And Patronage Reign In Downsizing:
Reinventing Government The Geological Survey Way
- Reward Your Friends And Punish Your Enemies
By Greg Campbell
President Clinton is making big headlines lately brag-
ging about his success in shrinking the size of govern-
ment. Last Saturday's Rocky Mountain News quoted
Clinton saying, “in everything from hiring people to
buying things. we've eliminated double talk and
bureaucracy.” This would be wonderful news if it
were true. Unfortunately, in the case of the work-
force reduction at the USGS, it hardly is.
According to geological scientists who lost their jobs
as a result of a reduction in force, USGS middle-
managers used the opportunity to downsize as an
excuse to purge the agency of their enemies.
Rather than creating a leaner, more efficient organ-
ization that costs the taxpayers less money through
the skillful whittling and revamping of critical
positions, critics contend that the USGS has lost some
of its most valuable scientific minds to the whims of
vindictive managers. “One point | want to make is
that none of the people who were RiFed are against
the idea of government downsizing,” says one
scientist. “Our question is this: is what happened at
72
‘
.
.
)
i.
]
,
:
j
’
‘
the USGS the proper way to downsize?” In the end,
according to a variety of sources and a number of
appeals that have been filed by about 80 fired
employees with an administrative court, most of the
USGS scientists who could be thought of by manage-
ment as trouble-makers — those who filed harassment
or discrimination complaints, those who disagreed
scientifically with their supervisors, or simply those
who happened to be female — found themselves out
of a job due to the liberties some managers took with
the regulations overseeing RIF’s. And, they claim,
almost all of those same managers used their
positions and their knowledge of the future USGS
staffing plan to make sure they still had jobs, regard-
less of whether or not they were the most qualified
for them. The result of the RIF, in the words of world-
renown retired USGS scientist Warren Hamilton, who
resigned his retirement fellowship in disgust over the
entire affair, is an earth science organization that
“was superb. It will come out of this mediocre or
worse. And it likely won't end up saving the tax-
payers a dime.”
PURGING THE HERETICS
When the USGS went through its RIF in October of last
year, 550 employees were separated in Denver,
Menlo Park, CA, and Reston, VA The Denver office
lost 167 employees. “We knew early on that some-
thing wasn't right,” one scientist told Boulder Weekly,
who, like many others contacted for this story, re-
quested anonymity. “The first clue was the single
person competitive levels.” Certainly, the way the
branch chiefs, office chiefs and other middle man-
agers in charge of orchestrating the RIF pooled the
73
positions for competition is one of the most conten-
tious aspects of the entire reorganization. In order to
prevent the very thing that the appellants say hap-
pened - the arbitrary firing of employees for vindic-
tive reasons — all RIFs in any agency of the govern-
ment must abide by federal RIF regulations, laws that
specify how a RIF is to be implemented so it’s a fair
process that retains the most qualified people.
According to the law, as an agency prepares for
downsizing, management must make an inventory of
all the position in the agency and pool together the
ones which are reasonably interchangeable into a
competitive level. That way, if a position is elimin-
ated, the individual who held that position is not
necessarily lost too. Instead, they compete with
others in their competitive level for the remaining
positions, not unlike a game of musical chairs. In the
end, the most qualified individuals are staffed in the
positions that remain whether or not they held a
position that was eliminated during the downsizing.
This way a vengeful manager can't simply eliminate
a job to get rid of an employee she aislikes. At least
in theory.
But according to many of those fired, the USGS man-
agers charged with creating and approving the
competitive levels found a way around the facet of
the law by crafting position descriptions so specific
thot they couldn't possible be interchanged with
another position. Out of about 300 pre-RIF positions,
there were 295 competitive levels (98.5% reciass-
ified). In other words, if someone's position was
eliminated, there was no one tc compete against
s4
a? ee See eee ee ee eS ae M
since they were the only person in their competitive
level. If it were indeed musical chairs, there would
only be one person playing and there would be
nowhere to sit once the music stopped. By elim-
inating specific positions, USGS managers were
inevitably eliminating individuals.
“The whole thing was flaunting civil service regula-
tions and the civil procedure by targeting individ-
uals,” says Hamilton, who believes that the process
was so befouled by a tone of retaliation and
favoritism that the Merit Systems Protection Board,
the administrative court nearing the appellants’
complaints, will be forced to overturn the RIF. There
are two reasons to think it could be overturned.
Number one, the management clearly circum-
vented the legalities by classifying everyone as
unique and the other is that if it is not overturned
then the word goes out to all other agency man-
agers that they can circumvent the agency
regulations.”
In fact, the RIF was so suspect that i’ caught the
attention of Rep. Jonn Mica(R-FL}, the chairman of
the House Subcommittee on Civil Service, Commit-
tee on Government Reform and Oversight, who
began oan investigation into the downsizing. Ed
Lynch, the senior research director of the subcom-
mittee says, “What's troubling is the fact that there
are so many different unique competitive levels in
this case. We're dealing with a situation in this
particular RF where apparently as much as 90
percent of fhe geologists in the division were treated
as some kind of specialized employee. When you're
75
talking about Ph.D. geologists, you're talking about
people who are sufficiently skilled that they can pick
up different kinds of research assignments or modify
their previous assignments and adapt somewhat to
the workplace. For some reason, the USGS appears
to have had a lesser evaluation of the talents of its
people. “Basically, the single person competitive
levels are something that you have to see as an
effort to avoid responsibility for the decisions that
were made and basically an effort on the part of the
survey to distance itself from the consequences of
some Cf its decisions.” But Tom Fouch, a USGS
manager now and at the time of the RIF, says that
the competitive levels were justified due to the highly
specialized nature of the individual positions.
This information comes as a surprise to Dr. Karen
Wenrich who is one of the RiFed scientists appealing
her dismissal. Wenrich thinks she was targeted for
firing due to the reputation she earned as a trouble-
maker in conjunction with the successful EEO
complaint she filed against her superior in 1991.
lronically, the basis of the suit was discrimination.
The congressional subcommittee conferred with the
Office of Personnel Management, the civil service
oversight organization that actually wrote the RIF
rules, about whether or not the USGS could legally
choose to put its people into so narrow a compet-
itive level, OPM Director James King responded that
“The agency has no latitude to elect a policy of
narrow rather than broad competitive levels... the
competition level is based solely on the position of
76
record (a scientist's job assignment), not personal
qualifications.”
The resu't of placing over 90% of the geologists into
unique competitive levels was that the protections
and the measures of fairness afforded by the federal
RIF regulations were stripped away. And once the
competitive leveis were established, critics say it was
just like shooting tish in a barrel for management.
A CASE IN POINT
Dr. Howard Wilshire has no doubt that he was RiFed
for his role in stopping the creation of a hazardous
waste dump in the deserts of California that he
thought would contaminate the Colorado River and,
subsequently, the water supply of Los Angeles and
San Diego. “I've been a trouble maker for a long
time before this, though," he says. “I blew the whistle
on what! thought were phony estimates on undis-
covered mineral deposits on public lands and things
like pipelines and mining end grazing and you name
it: any land-use issue that | the. -ght was out of
control across the Western aria lands. In the scientific
community, my work was respected," he continues,
“and | got consistently high ratings from my peers, so
the problems were ail political. What toes | trod on —
the Bureau of Land Management, the Forestry
Service — those are institutions that have regulatory
powers and don't want facts ihat interfere with their
decisions on land use. So! was a red flag to them.
There is no question in my mind that the RIF action
was against me for retaliation.”
77
According to Wenrich, Wilshire’s case isn't unique:
“Branch chiefs, assistant branch chiefs, the chief
geoloaist... they issued their vendettas against
people who've spoken out against them scien-
tifically and the implications for *yat are very far-
reaching.” she says. Even more unsettling are the
allegations that the vendettas didn't end with
professional disagreements. According to several
appellants, every scientist with a pending EEO
complaint against a superior was RiFed, as was a
scientist who filed a grievance against a boss.
CONFLICT OF INTEREST
The branch chiefs, office chiefs and other middle
managers who gave final approval over the cre-
ation of the single person competitive levels were
also in charge of formulating the USGS staffing plan
that would be adopted after the RIF. Since the
positions on the staffing plans were as specific as the
position descriptions for the existing jobs, filling the
new slots was as easy as connecting the dots. And
this, the complainants allege, is the flip side of the
retaliation coin: buddies of the managers had
position descriptions that matched up with new obs
after the RIF. And since that buddy was most likely
alone in his competitive level, there was no one to
challenge him for it. According to literature dis-
tributed by the fired scientists, 11 managers’ spouses
retained their jobs or were found new positions.
Since the managers were the ones who developed
the staffing plan in the first place, they had firsthand
knowledge of which positions were going to be
eliminated and which were going to be retained or
78
4 ‘ o > >! = a _ tt» <j .. » “ Pal
oe oe a Paes ee ee ee eee be ge eee eee « C
o> thachd
— /. ee 2 ee
created. Of the 75 various managers in the USGS, 74
found a position in the staffing plan. The one who
didn't, not surprisingly, had an EEO case pending
against the USGS and was an assistant. The man-
agers have done little to try to deny that they had an
unfair advantage over other scientists competing for
science positions, even though some of the methods
by which they obtained their new positions border
on fraud. For example, Christine Turner, the branch
chief who fired Wenrich, obtcined a position in the
new staffing plan working on a coal energy project
even though she had no prior experience working
with coal. Turner's boss, Energy Program Coordinator
David Houseknecht, was questioned before the
MSPB in Denver about this suspicious appointment.
After all, weren't the employees supposed to be
judged for placement in the staffing plan based on
their previous experience?
“In my opinion, it is unreasonable for an organization
to ask its managers to implement a reduction in
force and then say, ‘Oh, by the way, fire yourselves
while you're at it'” Houseknecht says. Whether the
courts agree with him or not remains to he seen, but
this type of thinking seems to be in direct contra-
diction to the intentions of the federal RIF laws. As
noted in the Guide to Merit System Protection Board
Law and Practice, “[T]he linchpin of federal person-
nel management is fairness, i.e., employees who are
similarly situated are entitled to similar treatment. The
notion of fairness is implicit in RIF regulations. Regu-
lations reflect the congressional concern for fairness,
limiting an agency's discretion in filling a vacancy in
a RIF.” Or as one anonymous scientist put it: “if
79
oe," ae gy ee eee ii oll
EE ee ee ee a
Christine Turner is able to create her own position
description for a spot on the staffing plan, then 550
other people should be able to do it too.”
MONEY MATTERS
According to testimony by Chief Geologist Leahy,
the RIF was financially successful for the agency in
that it saved the USGS over $40 million in operating
expenses. Leahy was asked by attorney Chisolm if
there were any programs that had excess funding as
a result of the $40 million saved in expenses. Leahy
answered, “For fiscal year '962 It’s not over yet.”
Indeed, it’s not. Less than a month after this ob-
servation, a general memo was circulated to USGS
program ;managers that was almost giddy in its tone:
“Listen up folks. We have a problem. It’s a GOOD
problem, but a problem nonetheless. According to
our books, the Central Energy Team still has an
enormous amount of UNSPENT OPERATING EXPENSES
in projects. This is not money in my pocket, it's
money in YOUR pocket. Although we may be happy
because we're rich, the problem is that it may not be
humanly possible within our purchasing system to
spend that money between now and the end of the
fiscal year.” The memo went on to beg everyone to
submit purchase requisitions as early as possible as
the administrators charged with filling the orders
were expected to be “working overtime trying to
keep up.” Though it may not seem “humanly pos-
sible” to soend all the overage according to the
author of the memo, there is a strong suspicion that
the managers will rise to the task.
80
APPENDIX DOCUMENT 9
The following cover letter is the Authorization To
Investigate sent to petitioner Butler, a bona fide
member of the age-discrimination class and party to
the action. It is followed by some of the 15 inter-
rogative questions sent to the petitioner from the
Agency through DSZ & Associates in May 2004. The
answers are included.
AUTHORIZATION TO INVESTIGATE
This is to certify that Molly Smith and Barry Zamoff,
investigators employed by Delaney, Siegel, Zorn &
Associates (DSZ) and engaged by the U.S. Geolog-
ical Survey Office of Equal Opportunity, have the
authority to investigate all aspects of the complaint
of: discrimination based on age filed by Constance
Throckmorton, Class Complaint CA-WGS-00-011,to
require employees of this Bureau to cooperate with
the investigator in the conduct of the investigation,
and to require employees of this Bureau having
knowledge of the matter complained of to furnish
testimony under oath or affirmation without a pledge
of confidence. This investigator is also authorzed
access to any document of, or in, the U.S. Geolog-
ical Survey in connection with the performance of
these official duties. Use of such documents shall be
in accordance with applicable laws and regulations.
s/ Sherman Scott Jackson Feb. 10, 2004
Formal Complaints Manager Date of Authorization
Office of Equal Opportunity
81
INTERROGATORY QUESTIONS
Q #1-6: [standard background information already
presented in the petition for writ of certiorari]
Q #7: Did anyone in management personally give
you reasons for the elimination or downgrade of your
position?
A: Yes... Impending budget cuts and financial
disaster for the US geological survey unless the bud-
get for solaries was reduced. The term “contract on
America” was used repeatedly to make employees
believe that our budget was going to be slashed
and that management was just doing its job to
comply with what the politicians wanted. However,
the budget was not cuf. No reason was given as
required in the RIF Notice.
Q@ #8: Do you have reason to believe that the
reduction in force was not required for fiscal
rearons? If so, state your reasons.
A: Yes. There were several articles written in Denver,
CO by major newspapers providing insight into what
had happened during and after the massive
reduction in force. These articles showed that it was
management's design to terminate non-managers
and then give themselves pay raises. After the RIF,
memos apparently surfaced from management
telling the non-RIF'ed workers to use up all the extra
money by buying new computers and other
equipment and to write up employees for merit pay
increases. Not being a Federal employee at that
time, | did not see the memos but! did hear about
82
bs
.,
F
;
them from friends who still worked at the USGS. One
of the newspaper articles was titled: Feds
‘Demoted’ to Higher Pay’, Rocky Mountain News, 3-
12-1998, front page headline.
Q #9: Do you have reason to believe that staffing
plans were formulated so as to target those over age
forty for downgrades or separation? If so, state your
reasons.
A: Yes. ABSOLUTELY!! Because that is indeed what
happened. All one has to do is look at the statistics.
The “older” employees generally have higher salaries
than the “newbies” and what better way to trim the
budget than target the higher-salaried employees. |
attended the RIF meetings for RIF’'ed employees and
the employees in the audience were the “oldies”,
such as myself. Also, there is only one reason to get
all employees to re-write their position descriptions
just prior to the RIF —- put each employee into a
separate competitive level category and then take
away the position. It is now so obvious and biatant, it
is disgusting.
Q #10: Do you have reason to believe that
competitive level codes were set or used to target
those over age forty for downgrades or separation?
lf so, state your reasons.
A: Yes. Because, once again, that is exactly what
nappened. The whole process of putting people
into their own competitive code with no one else
was an obvious setup. The rumors in the office were
that managers were protecting their own jobs and
screwing their colleagues. Civil Service shamefully
went along with this deceit and no one that | know,
83
including myself, was then able to “bump” less-senior
employees. There was not a single position in my
branch that! could not have competently filled with
my background of PhD geologist, eleven-year
college professor, and five years supervising the
research in my branch as Deputy Branch Chief. The
employees that ! saw in the RIF meetings seemed to
have a commonality, and that commonality was
most had filed complaints against their branch or
supervisor for whatever reason, such as discrim-
ination, poor performance rating that was not
justified, etc. In my case, | had filed a grievance
because after being a deputy Branch Chief, | saw
Bureau of Indian Affairs money not being used
properly and my then Branch Chief did not appre-
ciate me making a big deal of it.
Q #11: Do you have reason to believe that the
process of adding back positions after the initial
position elimination decisions were made was
designed or used to target those under age forty for
“add backs”? If so, state your reasons.
A: Yes. | knew many Survey employees in my 17.5
years there. | also knew some of the people who got
their jobs back. How can one not wonder at why
jobs were being advertised after the RIF when the
Survey was suppose to be down-sizing?
Q #12: Has any manager involved in the RIF deci-
sions made any statement which you believe is
evidence of his/her intent to discriminate on the
basis of age? If so, provide the name of the man-
ager, the statement made, the context in which the
statement was made, and the date.
84
gee PET ee
A: | do remember the general gist of ageist com-
ments [dinosaur and old-dog jokes] that were made
in branch and office meetings by Tom Ahibranct
and Tom Fouch. | am a prolific note-taker and thus |
may have recorded some of these; however, | have
15 filing cabinets of rny USGS research and admin-
istrative documents in storage and it will take time to
access this information. Specifics from 10 yrs. ago
cannot be remembered without reviewing my notes.
Q #13: Do you have any evidence that any of the
managers involved in the RIF decisions were aware
of your age at the time they participated in RIF
decisions? If you do, provide the evidence with as
much specificity as possible.
A: Yes. | came to the USGS in 1978 from a distin-
guished graduate student and teaching career as
an Associate Professor. By 1995 my colleagues had
to know that in order to do this, | had to be at least
50 years old. Managers clever enough to orches-
trate the RIF were clever enough to know my age.
My official Career Record which was updated
annually, contained the date | graduated from high
schoo! (1962) which meant that | was 18 (+ or-a
year) and hence born in 1944. When you work with
people for almost 18 years, they generally know how
old you are; in fact, we routinely celebrated every-
one’s birthday in the branch on a per month basis.
These gatherings included the normal lunch-hour
office party with jokes about how old people are
getting and a “roasting” of the guest of honor.
Q #14 Is there any other age-related reason why
you believe the decision to separate you or
85
eee eee, ae er ce ee Ten ee ye
a, ae ee Ce ee
pe =. ae
downgrade you as part of the reduction in force was
discriminatory? If there is, describe that reason with
as much specificity as possible.
A: My job was eliminated allegedly to save money.
That was well known and publicized. The deceptive
scheme that wasn't publicized to the victims of the
RIF was that the older the terminated employee was.
the more money the Government would save, vic
making it impossible for the RIF'ed employee to
realize a Federal retirement.
Q #15: Have you been a party to other complaints
or legal actions regarding the 1995 RIF? If so,
describe the current status of the other complaint or
action.
A: Other than writing letters to Office of Special
Counsel and to my U.S. Congressman, no. My letters
asked why Civil Service was not protecting my job
after 17.5 years of career competitive service. My
performance ratings had always been fully satis-
factory to outstanding. [n.b.: the petitioner's law-
suit/Complaint was filed in U.S. District Court after trie
2003 class was decertified under the doctrine of res
judicata in May 2005].
86
ee ee ae ee es ee eS a bn okie
APP X DOCUMENT 10
G. Michael Reimer
RR-103 75-6081 Alii Drive
Kailua-Kona, HI 96740
August 16, 2008
Dr. William C. Butler
31951 Lodgepole Drive
Evergreen, CO 80439-6656
Dear Dr. Butler,
| recall that after giving a state-of-the-office address
to Denver in 1994, the Office of Energy Chief, Dr.
Gary Hill, talked to various small groups of individuals.
This was in the first floor, north-end conference rooms
of Building 25 on the Denver Federal Center, Denver,
CO. | do not recall the exact time but that should be
obtainable from records of conference room reser-
vations. At that time, concern was high on whether
or not the Geologic Division would participate in a
reduction in force (RIF) if the budget of the U.S. Geo-
logical Survey was cut. It appeared that not only
would the Geologic Division be involved but that
would be the only Division involved.
Very few rank and file individuals knew anything
about a RIF process and we were just learning the
terminology. The general knowledge was that the
system for separation was similar to that of most labor
forces, particularly unionized groups for which last
hired would be first fired. The Geologic Division had
87
a rather skewed age distribution with most employ-
ees over age 40 and with 20 or more years of service.
| was part of a group of three individuals to whom Dr.
Gary Hill told the Geologic Division had been work-
ing on a means of separating individuals regardless
of their tenure, a means to specifically target in-
dividuals or small groups of individuals. The other
individuals of that group were Dr. Karen Wenrich and
Dr. James Otton, all members of the Branch of
Sedimentary Processes in Denver and all engaged in
the study of naturally-occurring radioactive mate-
rials. Dr. Hill stated that there might be some indi-
viduals caught that would be separated in order to
get rid of some targets, but they could be rehired
later. We were of course somewhat flabbergasted
at the glee he took in talking about the method of
classifying positions into as narrow of categories as
possible and that an individual in Reston Personnel
Office had been devising this system for years. It was
this cavalierness and arrogance that made this small
group meeting significant enough to remember. It
was clear to us, even though we were novices in the
terminology of RIF procedures, that this targeting, the
capability of management to target employees for
either retention or separation was a prohibited per-
sonnel practice. We believed that management
had to turn over the RIF operations to the Personnel
Office who would run an objective RIF following
proper guidelines.
Dr. Wenrich and | were separated from employment.
Dr. Otton, who has less tenure than either Wenrich or
|, was retained. At the time of the RIF, | was a GS-14
88
Research Geologist 1350 with a PhD in geology from
the University of Pennsylvania. | prevailed in my
appeal at the MSPB level and was reinstated. The
ruling was that the position descriptions of various
individuals were similar enough that with my tenure
seniority, | should not have been separated. | held
both competitive level, bump and retreat rights over
other employees. None of the individuals over
whom | had seniority were separated after my
reinstatement.
An analysis of the post-RIF scenario clearly shows that
Dr. Hill's remarks presaged what hap happened.
Discovery documents reveal! that Division Manage-
ment retained almost complete control over the RIF
process, not only instructing classification panels they
convened but they oversaw Branch management
develop retention registers to give to Personnel. They
categorized positions with random code assignments
for individuals that opened the door for abuse. Over
97 % of scientists were placed into single position
classifications. There was distinct age animus prev-
alent in the Geologic Division at the time of the RIF.
This is a fact that was recognized by a California
Court hearing claims from the Menlo Park, CA RIF,
and older individuals were indeed targeted. Further,
hiring back some separated individuals did occur.
And finally, some position descriptions of individuals
were rewritten by upper level management so that
they corresponded to qualifications on add-back lists
and were thus retained.
This recollection to the best of my knowledge is an
accurate representation of the statements and
89
attitude of upper level management. They fully
gave the appearance they were going to be given
a one-shot opportunity to separate individuals and
were going to use if as specifically as they could.
Sincerely,
s/ G. Michael Reimer, Ph.D. Geologist
APPENDIX DOCUMENT 11
Memorandum
Subject: Recalled 1992 conversation with Gary Hill
about proposed personnel practices and
attending circumstances.
in 1992 | was an employee of the U.S. Geological
Survey, Office of Energy and Marine Geology,
Branch of Sedimentary Processes, stationed in
Denver, CO. One day during the spring of 1992 Mr.
Gary Hill, along with one or two colleagues, came
into the Building 25 cafeteria where | was having
lunch. As he was going to his table he detoured to
where | was eating and said in a loud voice, “We've
got you all, now. We got the OK from DO! lawyers for
the classification. We can fire anyone we want to.” |
expressed doubt and stated that his ideas, besides
being contemptuous of merit-system principles in my
mind, remained actually illegal under Civil Service
statutes. The conversation then ended.
The classification Hill was speaking of was an attempt
to classify each and every federal employee (under
his jurisdiction as Chief, Office of Energy and Marine
Geology) into unique position-descriptions so that
each employee could be terminated individually
without benefit of seniority, veteran's preferences, or
other protections of the Civil Services Protection Act.
Mr. Hill and | had discussed this potential reclassify-
cation several times previously along with Mr. John
McGurk, a personnel specialist, who had suggested
the scheme. | had raised possible legal arguments
against the procedure at those discussions arousing
71
some antipathy to my views with both Mr. Hill and Mr.
McGurk. | interpreted the tone of his comments to
me in Denver as an expression of that antipathy.
These are my clearest recollections of the 1992
conversation with Mr. Gary Hill.
s/ Dr. Joseph T. O'Connor
Bailey, CO 80421
August 26, 2008
Telephone: 303-816-9718
,
92
APPENDIX D MENT 12
The 1995 RIF began like this.... Federal Employees
News Digest, Reston, VA, published the following
article on Aug. 14, 1995, (v. 45, n. 2, p. 4), on the day
that about 800 RIF Notices were served in the U.S.GSS.
“RIF Rigging Alleged at Geological Survey
The House Civil Service Subcommittee, which is
monitoring reductions in force throughout
government, is focusing on the U.S. Geological
Survey, which is being accused by some of its
employees of designing its RIF to protect certain
individuals while exposing others to the ax.
The Survey, world renowned for its Earth science
research work, wants to get rid of about a quarter
of its 2200 geologic division staff, firing about 500-
600 and downgrading another 700. It has
fashioned the RIF (notices are expected to go ut
today) so that many employees find themselves
in “one-man” competitive areas.
The RIF will include 200 firings in each of three
locations — Reston, Va., Menlo Park, Calif., and
Denver. Many of those targeted are involved in
the division’s core work: geology, chemistry,
geophysics, and so on. Some USGS employees
believe that by making the competitive areas so
specific, veterans preference, tenure, length of
service and job success will be circumvented as
retention pluses. They also charge that the buddy
system is protecting certain individuals and that
nepotism also may be a factor.”
93
APPENDIX DOCUMENT 13
This confidential memo was sent to Chief Geologist
Patrick Leahy by six Program Coordinators (who
helped engineer the RIF) after =800 employees were
separated, downgraded, transferred, or otherwise
adversely affected by a massive RIF under pretext of
budget cuts. The = symbol indicates redacted
material for brevity. Underlining added for emphasis.
UNITED STATES DEPARTMENT OF THE INTERIOR
U.S. GEOLOGICAL SURVEY
Reston, VA 22092
November 1, 1995
MEMORANDUM
To: Chief Geologist
From: Acting Program Coordinators
s/ 6 sets of initials
Subject: Decisions affecting Geologic Division
science programs
During the past two weeks we have been informed.
commonly through hallway conversations or
unexpected memos, about decisions that have
significant impacts on the science programs that we
are charged to coordinate. These include:
= [a list of cost issues]
These decisions are directly contradictory to many of
the principles under which we operated during the
planning of the reorganization and RIF. Moreover,
they achieve exactly the opposite of many guiding
94
Ss eer eS. se me a
¥
Ss
“
5
4
%
7
4
z
tenants of participatory management (trust and
delegating authority and responsibility to the lowest
level to name two}. The financial decisions men-
tioned above, together with the fact that the Office
of Geology has rolled over millions of dollars at the
end of the past two fiscal years, send a clear signal
that will not be well received by an organization that
has just separated hundreds of people.
We are concerned that these decisions, particularly
made in the absence of program input, will have
undue negative impacts on the scientific health and
morale of the Division. Moreover, we are deeply
concerned that these decisions will cost your
administration its credibility.
During the past year, many of us argued that a RIF
was necessary to restored scientific health to the
Division, defended that decision to the troops, told
them that the fat would be cut from the Division's
administrative ranks so that more dollars could reach
the front lines, then implemented the painful
downsizing. Our expectation was a New Division
where open decision-making and selfless attitudes
would prevail. Much to our chagrin, we see the new
organization conducting business-as-usual with
power being concentrated and money being con-
trolled by an elite few.
We ask you to think about the implications of deci-
sions that are being passed down, and about the
message that is being sent to the troops in the way
decisions are being made. We welcome the op-
portunity to work with you to resolve these issues.
95
x
P
a iil
j
,
7
4
’
’
APPENDI
This document is provided to show that petitioner did
have an active interest in preserving his rights con-
trary to statements in the trial court's Order To Dismiss.
Docket Number: DE-0351-05-0377-I-1
To: U.S. Merit Systems Protection Board, James Kasic,
Administrative Judge
From: William C. Butler, Appellant
Subject: Response to your Order To Show Cause of
June 24, 2005 and Request for Clarification
Date: July 8, 2005
This is a response to your order of June 24, 2005. It
clearly and overwhelmingly documents my ongoing
history of responses to the 1995 USGS RIF. You
requested that if your statement of factual data is
incorrect that you wanted to have it corrected. Your
order stated that my appeal “appears to be filed
untimely”. Your statement is incorrect for the reasons
presented herein. | have actively participated in a
ten-year effort to regain my Federal job and to seek
another Federal job since receiving the RIF notice. If
timely responses were not filed, if is because infor-
mation was never sent to me by the Agency or other
appropriate entity responsible for sending it. Not
being informed about deadlines is beyond my
control and a valid cause for any possible delays.
When information containing deadlines has been
sent to me, | have always responded in a diligent,
professional, and timely manner. Among other
issues, | present correct information in the following
15 points (five total pages):
96
1) The RIF notices were given to employees on
August 14, 1995. | was 51 years old aft that time and
a career employee of 17.5 years within the Geologic
Division. Because | was unjustly separated in the RIF,
on August 25, 1995, 1 wrote a letter regarding this RIF
to Ellen Oskoui, Office of Soecial Counsel,
Washington, D.C. 20036, expressing my disbelief that
the Civil Service Commission and Office of Personnel
Management could allow the targeting of individual
USGS employees by using fabricated competitive
level codes designed specifically to separate em-
ployees -- especially the “older employees” who
were close to retirement. This letter to Ellen Oskoui is
OSC File No. MA-95-2067. OSC responded to me on
September 1, 1995, on November 30, 1995, on
December 8, 1995, and on December 28, 1995. My
inquiry through official and recommended channels
was very timely.
Although... a) my GS and GM grades had been 12,
13 and 14, and b) for five years | was Deputy Branch
Chief and Acting Branch Chief, and c) | had a BS, MS
and PhD, and d) | supervised at one time over 200
employees, and e) | worked in my position for 17.5
years with fully satisfactory to excellent performance
ratings, and f) | occupied Merit Pay Supervisor,
research, and operational positioris, | had no
bumping/retreating rights and was not allowed to ‘
even take a GS-3 position, or anything between a
grade 3 and my current grade in 1995. | could easily
have taken any geologist (research or operational)
or technician job and worked satisfactorily at full
performance level almost immediately.
97
‘ iil
| want also to point out that no reason was ever
given to me for my separation from Civil Service
employment (re: RIF casualty). Any reasonable
person can see that the RIF was obviously a fraud-
ulent way to terminate employees rather than to
legitimately eliminate positions; it was a pretext
orchestrated by ambitious power-hungry managers,
none of whom (... or their friends) were RIF'd. See
“Desianer Downsizing” article in the Rocky Mountain
News, December 12, 1997, also, “RIF Rigging Alleged
at Geological Survey” article in Federal Employees
News Digest, August 14,1995, v. 45, n. 2, and “Feds'
Bonuses Raise Ire - Some USGS Workers Got Bonuses
After Layoffs” article in the Rocky Mountain News,
June 16, 1997, and “Laid-off Female Scientists Sue"
article in the Rocky Mountain News, March 20, 2000.
These are just several of the public documents
showing that Civil Service job protections were
apparently circumvented in the RIF. In the case of
Adam et al v. Norton, 9'» Cir. Docket No. 04-17365,
ND CA No. C-98-2094 CW, it was shown that age
discrimination was prevalent in the Geologic Division
at the time of the RIF. | believe | was affected by
those now public discriminatory practices and would ,
be eager to show such in a hearing before MSPB.
The conversations among the USGS Geologic
Division work force in 1995 was that managers were
indeed targeting the older employees and desirous
of keeping the “new blood” employees and getting
rid of the “dinosaurs” or “older employees”. Some
younger employees were asked to transfer to Water
Resources Division in order to save their jobs. In my
98
case, | did have access to information about how
Bureau of Indian Affairs project money was being
misapplied and misused to cover deficits elsewhere.
It is my belief that for this reason, and secondly, for
the reason that! had filed a successful complaint
against my supervisor, and thirdly because of my
age, that! was targeted for separation. Biases
against certain employees, such as age and other
personal factors, were definitely key elements in
management's decision-making on who would be
separated and who would be retained.
During the RIF | did attend the Agency-sponsored
meetings to once again express dissatisfaction with
the process, and my name appears on the official
sign-up sheets. Undoubtedly, these actions show a
very personal concern and “timely response” to a
developing adverse situation. When one actively
fights to retain their job, as | have amply demon-
strated herein, it does indicate that one does have
an genuine interest in possibly uniawful employ-
ment/separation practices; these concerns directly
bear on the discrimination situation and timeliness
issue you have ordered me to address. The reason
that | have provided this background information is
to show that | felt very strongly about the reasons |
believed to be the cause for separation, and as a
result | actively tried to reverse what had happened
by taking advantage of options that were promul-
gated to me. However, as | later found out, not all
options and information was provided so that
choices could be made. The very productive
careers of many professionals, including mine, were
99
destroyed overnight by the RIF, and this was of no
small consequence.
2) On August 23, 1995, | talked in person with Con-
gressman David Skaggs in Arvada, CO, about the
recent violations with the USGS RIF procedures. On
October 3, 1995, | wrote a letier to Representative
David Skaggs, Washington, D.C. expressing the same
concerns delineated in item #1 above. That meet-
ing and ietter are examples of my concern about
discrimination and were done so in a timely manner.
3) Multiple attempts to access staffing and grade-
position information from the Office of Personnel
Management were unsuccessful. The responses
were that this is privileged information. This infor-
mation was critical to show that there were indeed
other USGS positions that | could have retreated to
and been fully qualified (...and in most cases, over-
qualified) to assume those responsibilities. These
attempts were done in a timely manner.
4) Through the Office of Personne! Management, |
applied for the Priority Placement Program (Inter-
agency Placement, OPM form 1478) on August 23,
1995, in order to be eligible for any available position
vacancies in occupational series 1301, 1311 and
1350. i had full-time and part-time availability for
down-graded positions per the Reemployment
Priority List (RPL). A 27-page government Career
Record showing qualifications was submitted with
this application. This application which was
accepted by OPM (notice of registration dated
September 6, 1995) shows another documented
100
ail
:
:
:
:
:
:
:
response to the unlawful act of discrimination and
my ongoing willingness to exercise reasonable
options in a timely manner.
5) | was a named class member when OFO certified
the class on May 6, 2003. When EEOC makes a
determination such as this, MSPB generally recog-
nizes EEOC’s determination on the issue of timeliness
(Dawson v. USPS, 45 MSPB 194, (1990)).
6} | was officially recognized, i.e., “...nereby noti-
fied”, as a named class member by the Agency
when they sent me notification on May 21, 2003 of
the class acceptance by OFO. This notification
stated that | was a class member in accordance
with 29 C.G.R. § 1614.204(e) and signed by J.
Michael Bieszad, Chief Employee Relations Section
USGS, Denver, CO. 80225. Furthermore, | contacted
the Class Agent and | was named a class member
when the class was certified by the Office of Federal
Operations in March 23, 2003. This fact is known
through exhibits provided to you by both the Class
Agent and the Agency's representative in their April
29'"», 2005 responses to your order of April 1, 2005.
7) | was again very clearly recognized by the
Agency as a named class member when they were
conducting their investigation and | received a
questionnaire to fill out. | returned information on
these interrogatory questions on May 13, 2004 and
on May 24-2004 to the investigator, Ms Molly Smith,
EEO Contract Investigator, POB 3814, Ketchum, ID
83340. The authorization to investigate stated: “This is
to certify that Molly Smith and Barry Zamoff, investi-
101
a
gators employed by Delaney, Siegel, Zorn and
Associates, and engaged by the U.S. Geological
Survey Office of Equal Opportunity, has the authority
to investigate all aspects of the complaint of discrim-
ination based on age filed by Constance Throck-
morton (class complaint CA-WGS-00-01 1}, to require
employees of this Bureau to cooperate with the
investigator in the conduct of the investigation, and
to require employees of this Bureau having know-
ledge of the matter complained of to furnish testi-
mony under oath or affirmation without a pledge of
confidence” This authorization was signed by the
Formal Complaints Manager, Office of Equal
Opportunity on February 10, 2004. The Office of Equal
Opportunity indeed had me listed by full name and
address as a class member of the age discrimination
lawsuit. This Authorization To Investigce*= clearly and
unequivocally demonstrates that | was a member of
the ongoing legal process concerning the age dis-
crimination complaint. Please note that | was re-
quired to provide knowledge about the discrimi-
nation that | believed was perpetrated against me. |
was sent this interrogatory questionnaire specifically
because | had expressed prior complaints about and
dissatisfaction with the procedures regarding the
USGS Reduction In Force of 1995 as specified in this
Show Cause reply and because | was a bona fide
class member. There is definitely a history of in-
volvement here, including a paper trail, of my deep
concern for the illegal RIF procedure and my loss of
employment because of it that dates back to
August 1995. My response has thus been timely.
102
1
;
is
%
’
F
— > eS eS a) Pe
8) You seek to dismiss my case by applying a
regulation 5 C.F.R. §1201.154. This is an improper
regulation to use in my case. This regulation is for
those who previous!y appealed to MSPB. | did not
previously appeal to MSPB. My appedt is a result of
your dismissal of the mixed-case, class-action of
Throckmorton v. Interior DE-0351-05-0239-I-1.
9) My right to appeal is covered under 5 C.F.R.
§ 1201.27. it stems from your May 2, 2005 dismissal of
the class action. You should have docketed my
individual appeal when you dismissed the class
(Scott v. Department of Treasury, 71 MSPR 42 (1996)).
(Class action status was denied by the judge; on a
PFR the Board directed the judge to docket a
separate appeal for each appellant identified in the
initial appeal if the judge continued to deny class
action status.), and because you did not, | filed on
June 8, 2005, to protect my rights.
10) The Agency failed to inform me of my choices in
an appeal, thus | was not able to make a valid se-
lection of forum. My RIF notice mentioned nothing
about choices for filing different claims and did not
discuss the consequences of any selection. Again,
that information was withheld from me by the
Agency and | did not know what the basis was for
contesting the RIF. If you doubt this, a hearing will
bring out the facts supporting my claim on this issue.
11) You question the timeliness of filing. When a
case is pending, the timeline for filing an appeal is
extended (American Pipe & Construction v. Utah,
414 U.S. 538 (1974)), and 5 CFR 1201.27 (a) presents a
103
.
j
4
"
"
DP
clear statement of this timing issue: “When a class
appecd! is filed, the time from the filing date uniii the
judge issues his or her decision under paragraph (b)
of this section is not counted in computing the time
limit for individual members of the potential class to
file individual appeals.” You issued your decision on
April 6, 2005. | was not sent notification of t
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.