Diane Washington appeals pro se the district court's order granting partial summary judgment to the government and dismissing the remainder of her suit asserting claims of unlawful personnel practices and employment discrimination against the Navy. Because Washington alleges triable claims with respect to her separation from the Navy, we reverse in part the district court's grant of summary judgment.
FACTS AND PROCEDURAL HISTORY
From November 1986 to July 1988, Diane Washington, an honorably discharged Vietnam veteran, was employed as a Public Affairs Specialist at the Naval Training Center in San Diego, California. It was her job to edit The Hoist, the base newspaper. In that capacity, she distributed writing and photographic assignments and oversaw the layout and printing of the paper. Washington's civilian editorial position was classified as GS-9.
Initially, Washington worked with five other employees in the Public Affairs Office: Barton D. Buechner, Public Affairs Officer; Deborah Browning, Assistant Public Affairs Officer; Patricia Neal, Chief Journalist; Steven Hendrickson, Staff Writer; and Shannon Trahan, Secretary. Washington was the only black employee. She reported to Buechner, who headed the office. Buechner and Neal were active-duty Navy officers.
In 1987, Assistant Public Affairs Officer Browning left without a replacement and her duties were assumed by Neal. Hendrickson also left; his job was taken over by a new staff writer, Sharron Norrod, who was white. In January 1988, Trahan, the secretary, resigned, and was not replaced. Trahan's duties were absorbed by the remaining staff.
After these personnel changes, a divisive atmosphere prevailed in the Public Affairs Office. In particular, Washington and Norrod did not get along. According to Washington, Norrod, with the backing of Buechner and Neal, refused to take directions and acted in a generally insubordinate manner. Overall, Washington contends, she was subjected to discriminatory and harassing treatment at the hands of her coworkers.
On February 1, 1988, Buechner gave Washington a written and oral performance review. In the written evaluation, Washington was rated as outstanding in each of four categories. The review contained such praise as, for example.
Although he signed the written review, Buechner gave Washington a considerably less favorable oral evaluation. According to Buechner, at this meeting, he told Washington that she needed "to improve in the areas of interpersonal communication, teamwork, delegation skills, and overall demeanor." The next day, February 2, Washington reported for work but then walked off the job. She later secured a doctor's note which indicated that she was suffering from job-related stress and that she intended to return to work after her recovery.
Shortly after Washington's departure, Buechner assigned Neal to take over the editorial responsibilities of the paper. Buechner claims to have decided in the next few days that the office "ran more smoothly" without Washington. Sometime before February 9, he contacted the Naval Training Center's Chief of Staff, P.M. Reber, to arrange to have Washington's position abolished through a reduction in force ("RIF") action. During their discussion of the proposed RIF, Buechner expressed concerns to Reber about Washington's behavior. Reber responded to Buechner with a memorandum which stated:
Washington's was the only position to be affected by the RIF.
At about the same time as the command's approval of the elimination of Washington's position ostensibly for budgetary reasons, Buechner was informed by the agency's comptroller that it would be possible to hire a new secretary and another staff writer. Meanwhile, it appears that Reber sought the advice of the station's civilian personnel office concerning the effects of the reorganization on Washington's job rights.
On February 24, while Washington was still on sick leave, she and her union representative met with Buechner to discuss her return to work. Notwithstanding the significant steps Buechner had already taken behind the scenes toward the elimination of Washington's editorial position, he agreed that Washington could eventually resume her editorial role when she returned from sick leave. The memorandum of agreement from this meeting provided that Washington would come back to work on March 7 as a staff writer, but would not be downgraded, and would "work gradually for a period not to exceed thirty (30) days back into the full performance of her [editorial] duties."
Intraoffice politics did not improve upon Washington's return to the Public Affairs Office on March 7. Washington's name was written in last on the office sign-out board, below Norrod's and the new secretary's, even though everyone else was listed in rank order. She claims that an office partition had been moved so that her office space was reduced to approximately one-quarter the size of the space occupied by Norrod. Apparently at Buechner's direction, the word "staff" was added to Washington's usual byline, while every other writer was identified merely by name and naval office. Washington viewed the altered byline as an attempt to lower her status. In late March, Neal drafted a memorandum which, according to Washington, authorized everyone on the Public Affairs staff to pick up office mail except her. Finally, according to Washington, on March 21, Buechner extended her staff writing detail for an additional 120 days, reassuring her that it was only temporary and that no RIF was being contemplated.
On or about April 5, Norrod filed an informal Equal Employment Opportunity ("EEO") Complaint against Washington. Norrod alleged that Washington had remarked to her, "When you're little and cute and white, you get your way." Washington responded by filing her own informal EEO complaint on April 6, in which she listed numerous acts of perceived harassment on the part of Norrod and others before and since her return to the office, some of which are described above. On May 3, Washington filed a formal EEO complaint against the Naval Training Center alleging race and sex discrimination (the "May 3 complaint").
Three days later, on May 6, Washington received a RIF notification which informed her that her GS-9 editorial position was being abolished as part of a "realignment" of the Public Affairs Office. The stated goal of the reorganization was to "reduce the higher level structure and to better conform with the most essential portions of the missions and functions of the office." The notice continued,
Washington was instructed to respond by May 13 if she wanted to accept the GS-7 writer position or she would be separated on June 10. The notice further stated that the RIF "[did] not reflect on [Washington's] service or conduct" and that the necessity of an office realignment was the "sole reason" for the action taken. Appended to the notice was additional information indicating that, notwithstanding the RIF, Washington would be treated for pay purposes as a GS-9 for two years and, with certain conditions, was eligible to retain the same rate of pay, though with more limited salary increases, even after that two-year period.
Also appended to the RIF notification was job placement information indicating that Washington, as a career employee, would be included in the Navy's Reemployment Priority List ("RPL") and was entitled to be registered in the Department of Defense ("DOD") Priority Placement Program ("PPP"). These are mechanisms whereby civilian workers who have been separated as a result of a RIF receive special or priority consideration for reemployment.
Sometime after the RIF was effected, Buechner prepared a memorandum purporting to explain his reasons for taking the actions he did.
On June 27, Washington filed another formal EEO complaint alleging that the RIF action was the result of race and sex discrimination and in reprisal for the previous discrimination complaint she had filed (the "June 27 complaint").
Washington declined the offer to rejoin the Public Affairs Office as a GS-7 staff writer. She was separated effective July 1.
Between mid-June and mid-July 1988, the Naval Aviation Depot at North Island ("North Island") in San Diego advertised the position of Supervisory Public Affairs Specialist, classified as GS-11/12. Washington, who apparently understood that she was to receive automatic consideration for Naval positions in the San Diego area, never independently applied for this job. In fact, those responsible for filling it had never heard of her at the time the hiring decision was made. The individual selected for the position was a white male who transferred laterally at a GS-12 level from a similar position in the Army. Washington appealed her nonselection to the Merit Systems Protection Board ("MSPB" or "Board"), claiming that her reemployment rights had been violated and that she had been discriminated against on the grounds of race and sex (the "GS-11/12 case or claim").
On August 25, Washington filed a third formal EEO complaint (the "August 25 complaint"), this one asserting that Buechner, with discriminatory intent, had issued a false document for the purpose of damaging her career.
An EEO officer conducted a joint investigation of Washington's May 3 and June 27 complaints, and issued a finding of no discrimination.
After full board review, the MSPB ruled against Washington in all three matters. Washington sought further review of the discrimination component of each case before the EEOC, which in May 1990 upheld the Board's findings of no discrimination with respect to Washington's RIF and GS-11/12 claims.
In June 1990, Washington filed three complaints in district court in which she sought judicial review of the three adverse agency rulings.
In January 1992, in an oral decision, the district judge granted the government's motion for summary judgment as to the RIF claim, concluding that Washington had failed to rebut the Navy's contention that the reorganization had been a legitimate cost-cutting measure. The court further held that Washington had failed to produce evidence to support her allegations that the RIF was a mere pretext for discrimination and in reprisal for her protected EEO activities. The court granted summary judgment to the government as well on the GS-11/12 claim, ruling that under applicable regulations, the Navy had not violated Washington's reemployment rights by hiring the GS-12 candidate over her, and further, that Washington had failed to make any showing of discrimination in connection with the hiring decision. Because Washington had failed to file her complaint in the GS-7/9 case within thirty days of the
As the next step in a labyrinthine administrative and judicial review process, Washington has timely appealed to this court the grant of summary judgment on the RIF and GS-11/12 claims, the dismissal of the GS-7/9 claim, and the partial denial of her motion to compel discovery.
JURISDICTION AND STANDARDS OF REVIEW
A "mixed case" brought under 5 U.S.C. § 7703(b)(2) is one which involves both a personnel action normally appealable to the MSPB and a claim of discrimination. Vinieratos v. United States, Dep't of Air Force, 939 F.2d 762, 766 n. 2 (9th Cir.1991); Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987); see also 5 U.S.C. § 7702(a) (authorizing Board to decide discrimination claim along with the normally appealable claim), 7703(b)(2) (providing for judicial review of Board's decisions in mixed cases). While only the Court of Appeals for the Federal Circuit can review MSPB decisions in cases that do not entail discrimination claims, if a case is a mixed one, judicial review must be sought in district court under the applicable discrimination statute. Romain, 799 F.2d at 1420 n. 1, 1421. Under the mixed case scenario, the district court has jurisdiction to review the lawfulness of the personnel action as well as the discrimination claim. Id.
Upon reaching district court, the complainant is entitled to trial de novo on her discrimination claim. 5 U.S.C. § 7703(c); Romain, 799 F.2d at 1421. The nondiscrimination claim, however, is reviewed by the district court under a more deferential statutory standard. 5 U.S.C. § 7703(c); Romain, 799 F.2d at 1421. The decision of the MSPB concerning the validity of the personnel action is not to be set aside unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c); Lindahl v. Office of Personnel Management, 470 U.S. 768, 774 n. 5, 105 S.Ct. 1620, 1624 n. 5, 84 L.Ed.2d 674 (1985).
We review the propriety of the district court's grant of summary judgment de novo. Saul v. United States, 928 F.2d 829, 832 (9th Cir.1991). As to the discrimination claim, we must determine whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 516 (9th Cir. 1993). At the summary judgment stage, the district court is not to weigh the evidence or determine the truth of the matter but should only decide whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Our role with respect to the nondiscrimination claims is to determine whether the district court was correct in upholding the MSPB's decision. We review the Board's order to make sure that the Board applied the correct legal standards and the entire administrative record to ascertain whether its findings are supported by substantial evidence. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.1990). In conducting our review, we must consider evidence in the record that undermines as well as that which supports the Board's decision. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991).
The district court's dismissal on statute of limitations grounds presents a question of law that we review de novo. Donoghue v. The County of Orange, 848 F.2d 926, 929 (9th Cir.1987).
Finally, "[t]he scope of discovery is within the discretion of the district court and we review for an abuse of that discretion." United States v. Taghipour, 964 F.2d 908, 910 (9th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 283, 121 L.Ed.2d 210 (1992).
A. The RIF
We turn first to the claims surrounding the elimination of Washington's editorial position through the RIF action.
1. Bona fides
Washington asserts that the RIF constituted an unlawful personnel action because it was personal to her and not a bona fide workforce reduction. The district court concluded that the record adequately supported the Navy's contention that the RIF was a legitimate reorganization of the Public Affairs Office.
a. Relevant law
Under applicable civil service regulations, the permissible justifications for a RIF are: lack of work; shortage of funds; insufficient personnel ceiling; reorganization; the exercise of reemployment rights or restoration rights; or reclassification of an employee's position d[ue] to erosion of duties. 5 C.F.R. § 351.201(a)(2);
A reduction in force may not be used as a disguise for an adverse action to remove or demote a particular employee. Gandola v. Federal Trade Commission, 773 F.2d 308, 312 (Fed.Cir.1985). "[I]f an employee is removed through a reduction in force because of dissatisfaction with his performance, the reduction in force is improper with respect to that employee...." Id.; see also Liguori v. United States Military Academy, 4 M.S.P.B. 100, 101, 4 M.S.P.R. 6, 7 (1980) (same). In other words, a RIF may not be undertaken "for reasons personal to the employee." Mead, 687 F.2d at 286; Liguori, 4 M.S.P.B. at 101, 4 M.S.P.R. at 7.
In Losure v. Interstate Commerce Commission, a leading decision in this area, an existing employee's position was abolished after a new employee took over her functions. The Board refused to sustain the agency's "restructuring":
2 M.S.P.B. at 363-64, 2 M.S.P.R. at 199-200 (footnote omitted).
b. Review of record
In Washington's case, the Board upheld the ALJ's finding that the RIF was effected to increase office efficiency and "with a view toward long-term monetary savings." M.S.P.B. Opinion and Order at 3. The Board's order acknowledged that the Navy was not fully satisfied with Washington's performance prior to her separation, but affirmed the ALJ's determination that "the agency's actions toward appellant were inconsistent with any intention to use RIF procedures to circumvent the appellant's adverse action rights." Id. The ALJ, in turn, relied heavily on the testimony of Reber, which she considered more credible than that of Washington, in rendering her factual findings.
Reber's testimony was, viewed in its best light, equivocal. While maintaining on the one hand that he "wasn't aware of any problems
Reber stated that he had decided to abolish Washington's position for fiscal reasons and out of concern for office efficiency. According to Reber, the higher command had directed him to review his civilian staff in light of the funding shortage. But he also acknowledged the accuracy of the EEO officer's finding that two new civilian positions in the Public Affairs Office were budgeted at the same time he eliminated Washington's job and that Washington would have remained at the same pay level for a period of years had she accepted the newly created writer position.
Significantly, the sole document produced by the Navy to corroborate Reber's budgetary justification postdates Reber's February 9 approval of the RIF. While the March 1988 bulletin indicates that the Navy was trying to cut its civilian personnel budget through attrition and more prudent hiring, it also notes that this approach was "in lieu of a ... hiring freeze or directed RIF furlough actions." It thus does not lend much support to Reber's claim that the abolishment of Washington's position was in response to a directive from above.
An ALJ's findings as to credibility are entitled to considerable deference. Curran v. Department of the Treasury, 714 F.2d 913, 915 (9th Cir.1983). But "[w]hile it is true that ordinarily the question of credibility is left to the [ALJ], this is not an inflexible rule and will not be enforced if the credibility determination is inherently improbable or discredited by undisputed fact." Grubka v. Department of the Treasury, 858 F.2d 1570, 1574 (Fed.Cir.1988) (reviewing MSPB decision). Here, the inconsistencies in Reber's explanation and his failure to demonstrate the fiscal necessity or benefits of the action he took render his account inherently unbelievable.
Buechner's plan was effectively to demote Washington to a writer position at the same rate of pay and to add a secretary to the office. The Navy has never explained how this could have resulted in decreased personnel expenditures. Furthermore, it is not clear how the reorganization could have been considered more efficient, since greater efficiency implies increased productivity with the same number of people or the same level of productivity with fewer people. Buechner's restructuring of the Public Affairs Office contemplated neither.
In sum, all the credible evidence in the record indicates that the RIF was effected for reasons personal to Washington.
Pursuant to 5 U.S.C. § 7703(c), we must set aside a Board decision that is not in accordance with applicable law or is not supported by substantial record evidence. See Lindahl v. Office of Personnel Management, 470 U.S. 768, 774 n. 5, 105 S.Ct. 1620, 1624 n. 5, 84 L.Ed.2d 674 (1985). The Board's determination that the RIF was a bona fide action is deficient in both of these respects. We therefore reverse the district court's grant of summary judgment to the Navy on this aspect of the case. Because the Navy's action was illegal, we remand this portion of the case to the Board with instructions to order the Navy to reinstate Washington to her GS-9 editorial position at the Naval Training Center with back pay and benefits. See Wright v. Department of Transp., 900 F.2d 1541, 1545-46 (Fed.Cir.1990) (where FAA failed to establish that air traffic control trainee was properly removed from program, case remanded to Board with instructions to order FAA to reinstate trainee with back pay and benefits); Grubka, 858 F.2d at 1576 (remanding to MSPB with instructions to restore complainant to former position with back pay and benefits upon determination that ALJ's decision sustaining personnel decision was not supported by substantial evidence and was erroneous as a matter of law); see also Curran, 714 F.2d at 918 (ordering reinstatement of employee where substantial evidence did not support MSPB's conclusion that he was transferred for legitimate reasons).
2. Discriminatory animus
Washington contends that the reorganization in which she lost her job was a pretense for race and sex discrimination and in reprisal for protected EEO activities. The district court concluded that
(Reporter's Transcript of 1/6/92 at 29-30.)
a. Race discrimination
We cannot agree with the district court that Washington has failed to meet her burden on summary judgment as to her allegation of race discrimination in connection with the RIF.
Although her complaint does not specify a particular theory of discrimination, in her summary judgment papers, Washington refers to the alleged discrimination as disparate treatment.
Diaz v. American Tel. & Tel., 752 F.2d 1356, 1358-59 (9th Cir.1985) (quoting McDonnell Douglas v. Green, 411 U.S. 792, 807, 93 S.Ct. 1817, 1827, 36 L.Ed.2d 668 (1973)).
The burden on summary judgment of a plaintiff asserting disparate treatment under Title VII is thus to establish a prima facie case of discrimination and, if the employer articulates a legitimate, nondiscriminatory reason for its actions, to raise a genuine factual issue as to whether the articulated reason was pretextual. Sischo-Nownejad v. Merced Community College, 934 F.2d 1104, 1109-10 & n. 7 (9th Cir.1991) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (1973)). If a plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the employer's stated motive, summary judgment is inappropriate, because it is for the trier of fact to decide which story is to be believed.
This approach is in accord with the Supreme Court's recent decision in St. Mary's Honor Center. The St. Mary's majority held that, even when the plaintiff is successful in demonstrating, pursuant to the McDonnell Douglas framework, that the employer's proffered reason is pretextual, the factfinder is not compelled to render a finding of unlawful discrimination. The opinion makes clear, however, that the factfinder may infer discrimination from the showing of pretext:
St. Mary's Honor Ctr., ___ U.S. at ___, 113 S.Ct. at 2749 (quoting opinion below, Hicks v. St. Mary's Honor Ctr., 970 F.2d 487, 493 (8th Cir.1992)) (citation and footnote omitted).
Because, as St. Mary's recognizes, the factfinder in a Title VII case is entitled to infer discrimination from plaintiff's proof of a prima facie case and showing of pretext without anything more, there will always be a question for the factfinder once a plaintiff establishes a prima facie case and raises a genuine issue as to whether the employer's explanation for its action is true. Such a question cannot be resolved on summary judgment. But see St. Mary's Honor Ctr., ___ U.S. at ___, 113 S.Ct. at 2762 (Souter, J., dissenting).
A plaintiff establishes a prima facie case under Title VII by introducing evidence that gives rise to an inference of unlawful discrimination. Sischo-Nownejad, 934 F.2d at 1109. One way to accomplish this is through indirect evidence, by invoking the classic McDonnell Douglas formulation. St. Mary's Honor Ctr., ___ U.S. at ___, 113 S.Ct. at 2747. In McDonnell Douglas, the Supreme Court held that a plaintiff can make out a prima facie case under Title VII by showing "(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802, 93 S.Ct. at 1824.
The plaintiff in McDonnell Douglas was an unsuccessful job applicant. Recognizing, however, that the four-part test established in that case is "not intended to be an inflexible rule," Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978), courts have adapted it to a variety of other employment contexts. Cf. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13 ("The facts necessarily will vary in Title VII cases, and the specification ... of the prima facie proof required from [the plaintiff] is not necessarily applicable in every respect in differing factual situations.")
The Ninth Circuit has yet to set forth the criteria for a circumstantial prima facie case when the employment action in question is a RIF. We have previously acknowledged, however, that when an employee alleges that her position was abolished for discriminatory reasons, the fact that she was not replaced by someone not of her protected class is not fatal to her claim. Palmer v. United States, 794 F.2d 534, 537 (9th Cir.
Washington has made out a prima facie case of employment discrimination under the above test. She was qualified for the position she held and was the only black person, indeed the only person, to lose her job in the RIF. Others in the Public Affairs Office were treated more favorably, including the white woman who took over Washington's editorial responsibilities at the Hoist.
We note that Washington has also presented some direct evidence of race discrimination in that she has shown that an atmosphere of racial tension existed in the office during the period in which Buechner was negotiating to eliminate her position. This evidence strengthens, but is not necessary to, her circumstantial case.
In response to Washington's prima facie case, the Navy again invokes the "severe" economic constraints cited in Reber's memorandum and the office efficiency rationale given in the RIF notice. We note that, in the ordinary case, such fundamentally different justifications for an employer's action would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason. Here, we have already determined in connection with the nondiscrimination aspect of Washington's challenge to the RIF that the fiscal and office efficiency rationales relied on by the Navy are pretextual. In keeping with the holding in St. Mary's Honor Center, Washington is entitled to present her case to a factfinder for a determination of the ultimate issue of discrimination. ___ U.S. at ___, ___, 113 S.Ct. at 2749, 2756 (upon showing of pretext, issue of discriminatory motivation "remains a question for the factfinder to answer"). Summary judgment on Washington's race discrimination claim in connection with the RIF was therefore inappropriate.
We have already awarded Washington the equitable relief of reinstatement with back pay and benefits because of the unlawfulness of the personnel action at issue. With respect to her discrimination claim, we note that the Civil Rights Act of 1991 broadened the remedies available to successful Title VII litigants. See Civil Rights Act of 1991, Pub.L. No. 102-166, §§ 102, 105 Stat. 1071, 1072-74, 1075-76 (1991) (codified at 42 U.S.C. §§ 1981a, 2000e-5(g)).
b. Sex discrimination
The record reflects that at the time Washington's position was abolished, there were no males in the Public Affairs Office other than Buechner, and thus no males who were potentially subject to the RIF. Because, under these circumstances, Washington cannot show that men were treated more favorably than she was, she has failed to make out a prima facie case of sex discrimination.
Nor has Washington presented any direct evidence of gender-based discrimination in connection with the RIF. The district court was correct in granting summary judgment with respect to this aspect of the case.
The district court upheld the Board's finding that the RIF did not constitute an illegal reprisal for Washington's protected EEO activities.
A claim of retaliation for engaging in protected EEO activities arises both under Title VII as a form of employment discrimination and pursuant to the prohibited personnel practice provisions of the CSRA. See 5 U.S.C. § 2302(b)(9); 42 U.S.C. § 2000e-3(a); see also 29 C.F.R. § 1613.261 (EEOC) ("It is unlawful to restrain, interfere, coerce or discriminate against complainants ... during any stage in the presentation and processing of a complaint ... or because an individual filed a charge of discrimination...."); Cruz v. Department of Navy, 934 F.2d 1240, 1256 (Fed.Cir.1991) (Skelton, J., dissenting) (noting dual nature of reprisal claims).
Whether we consider her claim of reprisal under the de novo or more deferential standard of review, it appears that Washington has failed to establish that she was retaliated against for her protected activity. As the district court observed, the record shows that Washington's first informal EEO complaint was filed in April, but the RIF was underway by early February. The timing of the two events negates an inference of retaliation, and summary judgment was proper.
B. The GS-11/12 Position
Washington asserts that her reemployment rights were violated when she was not hired for the GS-11/12 public affairs specialist job at the North Island facility.
An agency implementing a RIF must establish and maintain, within its commuting area, an RPL on which the names of employees eligible for priority consideration are entered. 29 C.F.R. § 351.1001-.1002. The RPL confers upon the employee certain reemployment priority rights: "When a qualified person is available on the agency's reemployment priority list, the agency may not fill a competitive position by the transfer of an employee of a different agency or by the new appointment of any person except a 10-point preference eligible." Federal Personnel Manual System ch. 330, subch. 2, § 2-6 (1989) (discussing RPL rules in effect prior to December 8, 1988). At the time of the RIF at issue in this case, an employee's name was to be placed automatically on the RPL by the agency the day after she received notification of her impending separation. Id. § 2-3(c). The then-existing rules further provided that a separated employee could be considered for "all competitive service
Since she received her RIF notice on May 6, 1988 and was viewed as qualified for positions at the GS-9 and GS-11 levels, Washington should have been considered as a priority candidate for the GS-11/12 public affairs position at North Island that was advertised in June and July of that year. Her name may not have been entered on the RPL until as late as August, however, and it is undisputed that the North Island personnel in charge of hiring for the position had never heard of her.
The government asserts that, despite these omissions, it was nonetheless acceptable to hire an outsider at the GS-12 level instead of Washington. In support of this contention, the Navy relies on a declaration by the chief of the Staffing Policy Division of the Office of Personnel Management ("OPM"), which explains that OPM interpreted the 1988 RPL rules as follows:
(S.E.R. at 127.) Under this interpretation, even if Washington should have appeared on the RPL list, she cannot challenge the agency's decision because she was not qualified for the job that was ultimately bestowed on the GS-12 candidate.
OPM's interpretation of the RPL rules is entitled to considerable weight since it is OPM that administers them. Force v. Director, Office of Workers' Compensation Programs, 938 F.2d 981, 983 (9th Cir.1991). Although Washington theoretically could have rebutted the OPM declaration with evidence that the guidelines were applied differently in practice, she did not present any such proof.
In light of the Navy's showing as to the administration of the RPL rules, Washington cannot establish any prejudice resulting from the failure to consider her for a position that was filled at the GS-12 level. Thus, summary judgment was appropriately granted on this aspect of Washington's GS-11/12 claim. See Baxter v. Department of the Army, 45 M.S.P.R. 663, 668 (1990) (with respect to agency's failure to include employee on its RPL, "only harmful agency error provides a basis for reversal of the agency's action. The burden is on the appellant to show by preponderant evidence that any error caused substantial prejudice to his substantive rights." (citations omitted)), aff'd in part and vacated in part on other grounds, 935 F.2d 279 (Fed.Cir.1991).
2. Discriminatory animus
Washington contends that the alleged failure to honor her reemployment rights with respect to the GS-11/12 claim was the result of race and sex discrimination.
A plaintiff must prove discriminatory intent when she alleges disparate treatment. Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir.1988). Because it is uncontroverted that the North Island hiring personnel had never heard of Washington when they made their hiring decision, Washington lacks an element essential to her claim. Summary judgment was therefore properly granted.
C. The GS-7/9 Position
Washington asserts that she was entitled to priority consideration as both an RPL and PPP candidate for a second opening at Island Trees at the GS-7/9 level, and that the Navy's failure to offer her the job violated her reemployment rights and was
Under the statutory scheme, a complainant with a mixed case who receives an unfavorable disposition of her discrimination claim from the MSPB may either petition the EEOC for further review of that claim or take the case directly to the appropriate district court. 5 U.S.C. § 7702(a)-(b). If she petitions the EEOC, she must wait until the Commission has issued a decision before she seeks judicial review unless 180 days have gone by, at which time she is entitled to appeal to the district court even though the EEOC has not acted. 5 U.S.C. §§ 7702, 7703(b)(2). Should she opt for the alternate route and appeal directly to the district court from the MSPB, she has thirty days from the issuance of the Board's final decision in which to file suit. 5 U.S.C. § 7703(b)(2).
The Board issued its final order in the GS-7/9 case on March 30, 1990. Washington has produced evidence that she timely petitioned the EEOC for review of the GS-7/9 claim. Rather than wait for a decision from the EEOC as she had in the other actions, however, she instead filed in the district court on June 5, 1990. Since she did not meet the thirty-day deadline and 180 days had not elapsed from the time she sought EEOC review, her complaint was untimely.
Washington asserts that she should be excused for filing late because she assumed when she did not hear anything from the EEOC within thirty days' time that the EEOC was not going to act and that she had therefore exhausted her administrative remedies.
In Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Supreme Court held that federal statutory time limitations on suits against the government are not jurisdictional in nature. Rather, "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id., at 95-96, 111 S.Ct. at 457-58; see also Williams-Scaife v. Department of Defense Dependent Schools, 925 F.2d 346 (9th Cir.1991) (following Irwin in Title VII case). In so holding, however, the Court observed that invocation of the equitable tolling doctrine is not appropriate in cases in which the litigant has failed to meet a deadline as a result of "garden variety" neglect. 498 U.S. at 96, 111 S.Ct. at 458.
Although Washington's pro se status must be taken into consideration, the fact that she proceeded correctly in the other two actions indicates that she was familiar with the procedural requirements. In each of those cases, the EEOC took longer than thirty days to render a decision. The district court was therefore justified in dismissing as time-barred the claims surrounding Washington's nonselection for the GS-7/9 position.
D. Motion to Compel
Washington appeals the district court's affirmance of the magistrate judge's November 1991 discovery order. She had sought to compel the Navy to produce various documents, some of which apparently did not exist. The magistrate granted certain of Washington's requests and denied others.
In upholding the magistrate's ruling, the district judge noted that the defendant was not required to create documents to satisfy Washington's discovery requests. Some of the requests she determined to be overly broad. Finally, she was concerned that the
DAVID R. THOMPSON, Circuit Judge, dissenting:
I respectfully dissent from the portion of the majority opinion that reverses the Merit System Protection Board's affirmance of the ALJ's finding that the Navy's "RIF action was based on a legitimate management reason." ALJ Decision, Washington v. Navy, Docket No. SF03518910016 filed Feb. 2, 1989, pp. 4-5 (ER 43-44). On this issue, we must apply a deferential standard of review.
It is our obligation as a reviewing court to affirm the Board's decision if it is supported by substantial evidence. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir.1990). Substantial evidence means more than a mere scintilla but less than a preponderance of the evidence. Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.1991); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion") (citation omitted).
Substantial evidence need not convince us; it merely "must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) (citation omitted). "Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).
By choosing not to recognize this well-accepted role of deference in reviewing for substantial evidence, the majority improperly grants itself the privilege of weighing the evidence de novo and substituting its factfinding from the cold record for that of the ALJ who heard the case firsthand.
The majority bases its reversal of the Board's decision on the notion that "all the credible evidence in the record indicates that the RIF was effected for reasons personal to Washington." In so stating, the majority disregards the ability of the ALJ to pass on the credibility of evidence. This frustrates important policies underlying the substantial evidence standard of review. The standard "frees the reviewing courts of the time-consuming task of weighing the evidence, it gives proper respect to the expertise of the administrative tribunal and it helps promote the uniform application of the statute." Consolo, 383 U.S. at 620, 86 S.Ct. at 1026.
Approaching the case as the primary factfinder, the majority finds that the testimony of Capt. P.M. Reber, Chief of Staff of the Naval Training Center at San Diego, California, was "equivocal." It makes this finding despite the ALJ's express finding that Reber's testimony was credible.
The majority finds Reber's testimony "equivocal," because although he testified he "wasn't aware of any problems with Ms. Washington's conduct when [h]e made the decision to abolish her position," he also testified "that at the time he approved the RIF, he understood that Washington's performance was `in question' and `needed readjust[ing].'"
S.E.R. at 72-73.
In context, it becomes clear that Reber's "equivocal" testimony reflects that at the time he ordered the RIF, he knew Washington as an employee whose performance evaluation was satisfactory and did not reveal particular faults in her performance.
The majority also relies for its finding that Reber's testimony was "equivocal" on his further testimony that he "conceded that had Washington not walked off the job on February 2, it was `possible' that she would have retained her editing job on The Hoist." Again, the majority chooses to quote only a portion from Reber's testimony. In context, his testimony was:
Id. at 90-91.
Reber's testimony, therefore, fails to support the implication advanced by the majority: that Washington may have lost her job as punishment for leaving it on February 2. This is not what Reber said. He testified that Washington's absence was a cause of the RIF only because it allowed Reber to learn that her position was not indispensable.
The majority, however, finds Reber's testimony "inherently unbelievable." It takes exception to the Navy's explanation that the RIF was part of a plan to increase long term efficiency. The Navy, however, presented a plausible explanation: having found that The Hoist did not require the services of a full-time editor, it made sense to put Washington to work as a reporter.
The majority also points to the hiring of a secretary as proof that the Navy was not concerned with efficiency in changing Washington's duties. This circumstance, however, lends no support to the majority's factfinding; the addition of the secretary was not linked to the RIF that affected Washington. Moreover, it substitutes the majority's ideas as to how the Naval Training Center's Hoist office should be run for the ideas of the people who were charged with running it.
In sum, rather than searching the record to determine whether there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (emphasis added), the majority searches the record to try to find some inconsistencies which will permit it to make findings contrary to those made by the ALJ and affirmed by the Board. This simply will not do.
Because the record contains substantial evidence to support the Board's determination affirming the ALJ's findings, I would affirm the finding that the Navy based the RIF action on legitimate management reasons.
Washington's discrimination claim, however, comes to us clothed in a different standard of review. Here, our review is de novo. I agree with the majority that Washington raised a genuine issue of material fact on the question whether the RIF action which eliminated her job was prompted by race discrimination. The ALJ and the Board decided it was not, but on this issue the question before the district court, and before us, is whether Washington raised a genuine issue of material fact. She did, and I agree this question should be remanded to the district court for further proceedings.
I do not agree, however, that Washington's discrimination claim is advanced by the evidence of "racial tension" to which the majority refers. This is the evidence that Norrod, a white female, accused Washington in an EEO complaint of racial discrimination when Washington allegedly said to Norrod: "when you're little and cute and white, you get your way." Washington cannot use her own alleged racial slur toward Norrod to buttress her claim that she was the victim of discrimination.
Nor do I agree with the majority's assertion that economic constraints and office efficiency "in the ordinary case [are] such fundamentally different justifications for an employer's action [that relied upon together they] would give rise to a genuine issue of fact with respect to pretext since they suggest the possibility that neither of the official reasons was the true reason." In my view, we cannot characterize as "fundamentally different justifications for an employer's action," economic constraints and office efficiency. I do not agree that an employer's reliance upon these factors would provide any evidence of pretext nor suggest the possibility that neither reason was the true reason, in this case or in "the ordinary case."
Reporters Transcript of Hearing at 395-96.
The Supreme Court has instructed federal courts to construe liberally "inartful pleading" by pro se litigants. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 701, 70 L.Ed.2d 551 (1982)). Though it appears Washington did not make explicit reference to the hostile environment theory in district court, she did, throughout the proceedings below, emphasize that she had been subjected to an overall campaign of harassment by her coworkers, the hallmark of a hostile working environment claim. Because the district court did not expressly rule on this facet of Washington's case and the government did not brief its merits on appeal, we leave it to the district court on remand to determine in the first instance whether Washington has alleged facts sufficient to present a triable claim of discrimination under a hostile environment theory.
The Civil Rights Act of 1991 modified the Supreme Court's holding in Price Waterhouse as to when a plaintiff is entitled to relief in a mixed motive case. Price Waterhouse held in part that an employer could avoid liability for intentional discrimination in a mixed motive case if it could demonstrate that the same action would have been taken even if the illegitimate motive had played no role in the employment decision. 490 U.S. at 244-45, 109 S.Ct. at 1787-88. As amended by the 1991 Act, Title VII now provides that a plaintiff establishes an unlawful employment practice "when [she] demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." 42 U.S.C. § 2000e-2(m), added by Civil Rights Act of 1991, Pub.L. No. 102-166, § 107(a), 105 Stat. 1071, 1075 (1991); see also Estate of Reynolds v. Martin, 985 F.2d 470, 475 n. 2 (9th Cir.1993). Under the 1991 amendments, however, if an employer is able to establish that the same action would have been taken in the absence of the illegitimate motive, the court is limited in the types of relief it may order. See Civil Rights Act of 1991, Pub.L. No. 102-166, § 107(b), 105 Stat. 1071, 1075-76 (1991) (codified at 42 U.S.C. § 2000e-5(g)(2)(B)).
A plaintiff need not label her case a single or mixed motive case from the beginning. "[I]ndeed, we expect that plaintiffs often will allege, in the alternative, that their cases are both.... At some point in the proceedings, of course, the District Court must decide whether a particular case involves mixed motives." Price Waterhouse, 490 U.S. at 247 n. 12, 109 S.Ct. at 1788 n. 12.
Washington apparently did not specify in district court whether she also seeks to establish that the Navy's elimination of her position stemmed from mixed motives — that is, a legitimate managerial concern combined with unlawful discrimination — and the district court did not rule on this alternate theory. Since her allegation of race discrimination might also be analyzed under the mixed motive approach, on remand the district court should determine whether Washington also wishes to proceed under a mixed motive theory, and, if so, whether such an approach is viable in her case.
Wall held that the Federal Circuit has exclusive jurisdiction where, as in this case, the Board finds that there is no appealable personnel action and therefore declines to consider an employee's claim of discrimination. Id., at 1542-44. On its face, this holding seems to conflict with the language of 5 U.S.C. § 7703(b)(2), which provides that petitions for judicial review of mixed cases "shall be filed" under Title VII or another applicable discrimination statute. We decline to resolve this issue, however, in view of our determination that Washington missed the filing deadline for this claim.