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Hill v. Beers

United States District Court, D. Oregon, Portland Division

March 11, 2014

JERRY HILL, Plaintiff,
RAND BEERS, Secretary, United States Department of Homeland Security, Defendant.


JOHN A. ACOSTA, Magistrate Judge.


Plaintiff Jerry Hill ("Hill") filed this action against Rand Beers ("Beers"), the current[1] Secretary of the United States Department of Homeland Security (the "Department"), as the parent organization of his former employer, the Transportation Security Administration (the "Administration"), for violations of the Age Discrimination in Employment Act (29 U.S.C. §§ 621-634)(the "Act"). Presently before the court is Beers's motion for summary judgment.[2]

The court finds Hill has failed to establish that he suffered an adverse employment action and, therefore, is unable to support a prima facie claim for discrimination under the Act. Accordingly, Beers's motion for summary judgment is granted.[3]


On February 27, 2002, the United States Office of Personnel Management (the "Office") granted the Department the "authority to waive the dual compensation reduction (salary offset) to hire Federal retirees to help start up the Transportation Security Administration." (Def.'s Mem. in Supp. of Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. ("Def.'s Mem.") Ex. 2 at 1.) Such authority was limited to hiring "an employee serving on a temporary basis, but only if, and for so long as, the authority is necessary due to an emergency involving a direct threat to life and property or other unusual circumstances." (Def.'s Mem. Ex. 2 at 1, quoting 5 U.S.C. § 8344(i).) The authority for the waiver of the dual compensation reduction ("Waiver") was based on the September 11th attacks, the enormity of the responsibilities given the Administration, the urgent need for experienced professionals to staff the Department, and the lack of alternative staffing options. (Def.'s Mem. Ex. 2 at 1.)

On July 30, 2004, the Administration offered Hill, who was planning to retire from the Federal Bureau of Investigation ("FBI"), a permanent appointment as a criminal investigator advising Hill that "[a]s a reemployed annuitant your annuity will continue. However, during your period of employment, your salary will be reduced by the amount of your annuity." (Def.'s Mem. Ex. 4.) Hill declined the offer "due to the dual compensation restrictions regarding my retirement income from the FBI" and requested he be considered for a Waiver. (Def.'s Mem. Ex. 5.) On September 8, 2004, the Department approved a Waiver for Hill's appointment as an Assistant Federal Security Director for Law Enforcement ("Assistant Security Director") at the airport in Portland, Oregon, for a term of three years. (Def.'s Mem. Ex. 6 at 1.) Hill was granted a Waiver at this time "because efforts to recruit for the position has been unsuccessful." (Def.'s Mem. Ex. 16 at 5.) The Department intentionally limited the duration of Hill's Waiver to "three years with the requirement that TSA identify a pool of candidates who have the potential to be permanent successors to the position and to be prepared to competitively recruit for the position in the future." (Def.'s Mem. Ex. 16 at 5.) Hill retired from the FBI effective October 14, 2004, and accepted the three-year appointment with the Department effective October 17, 2004. (Def.'s Mem. Ex. 7, 8.)

A year later, on October 18, 2005, Gale Rossides, the Assistant Administrator of the Administration ("Rossides"), told Arthur Gordon, an Assistant Security Director in Maryland, that she did not support renewing the Waivers because they blocked the career paths of younger employees. (Farra Decl. Ex. H at 1, 3.) She stated that "[y]ou guys (referring to the Rehired Annuitants) would have to step aside so the younger people can move up." (Farra Decl. Ex. H at 1, 3.)[4] Early in 2006, the Administration established the Executive Resources Council ("ERC") to advise the Administration with regard to "recruitment, assessment and selection of executives representing the nation's diversity, their compensation and benefit packages; the executive performance management and awards process, and certification of professional development activities to strengthen the executive cadre at TSA." (Def.'s Reply Ex. 2 at 1.) Rossides served as the Chair of the ERC during the relevant period. (Farra Decl. Ex. P at 1.)

In the summer of 2006, the Office reconsidered the need for Waivers. In a letter dated June 12, 2006, the Office recognized that in the future, "[t]he need to hire annuitants will diminish because of TSA's diligent external recruitment efforts and internal development of successors." (Def.'s Mem. Ex. 9 at 1.) The letter also noted that recruitment for Assistant Security Director positions was occurring "on a regular basis using vacancy announcements, typically for a two-week period, for specific locations." (Def.'s Mem. Ex. 9 at 1.) About the same time, the Department anticipated that the number of extensions granted to those currently working under Waivers would be extremely limited to allow the Department to "develop a cadre for the long term future of the agency." (Def.'s Mem. Ex. 10 at 3.) The Department noted that "[a] recruitment plan, which provides upward mobility for current employees and which targets minority and female applicants, is being designed and will provide TSA with a vibrant, diverse population of senior leadership." (Def.'s Mem. Ex. 10 at 3.)

The ERC approved a "Succession Plan for TSA" (the "Plan") in June 2006. (Def.'s Reply Ex. 3.) The Plan addressed the primary concerns that forty percent of the Administration's executive would retire after five years based, in part, on the significant numbers of leaders with Waivers expiring in 2007 and 2008, as well as the lower than desirable level of diversity (minorities and females) among the Administration's leadership. (Def.'s Reply Ex. 3 at 5.) The specific succession planning goals for the Administration identified in September 2006 were:

• Develop replacements for TSA executives and senior leaders eligible for retirement over next 5 years
• Provide upward mobility for TSA employees
• Develop leadership competencies needed for senior and mid-level management at TSA
• Increase diversity of TSA's leadership bench
• Maximize retention of TSA's leadership talent

(Supp. to Def.'s Reply at 2.) The Administration intended to fill senior level management positions with mid-level managers, such as Assistant Security Directors. (Supp. to Def.'s Reply at 7.) Therefore, it was imperative that the Administration fill Assistant Security Director positions with individuals willing and capable of becoming senior management leaders within a five-year period.

In the fall of 2006, the Administration held three Federal Security Director Conferences to discuss the future of the Administration. (Farra Decl. Ex. I at 2.) During each of those conferences, Michael Restovich ("Restovich"), then Assistant Administrator of the Administration, used the expression "old white guys" to refer to himself and approximately eighty-five to ninety percent of the federal security directors in attendance. (Farra Decl. Ex. I at 2.) Restovich later explained that he used the term to:

stress that both the DHS and TSA have goals and objectives to improve our diversity at the leadership level and that it was their responsibility to develop the next generation of leaders. I said that we did not have time in the beginning of TSA to get a diversity of leadership. By diversity, I meant diversity of background, ideas, and people. TSA's leadership came largely from law enforcement and the military. It was a second or third career for many of them. I said that going forward we, meaning myself and the attendees, needed to do a better job of developing the next group of leaders. It was later brought to my ...

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