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Philip N. Geenen v. Ken Salazar

March 14, 2011

PHILIP N. GEENEN,
PLAINTIFF,
v.
KEN SALAZAR, SECRETARY OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION

Plaintiff filed his complaint (Docket 1) alleging he was denied a transfer from the Department of Agriculture ("DOA") to a position of criminal investigator with the Department of Interior ("DOI"), Bureau of Land Management ("BLM"), because of his age in violation of the Age Discrimination in Employment Act ("ADEA"). Defendant*fn1 initially filed a Fed. R. Civ. P. 12(b)(6) motion asserting plaintiff's complaint failed to state a claim upon which relief can be granted. (Docket 7). District Judge Richard H. Battey entered an order denying the defendant's motion to dismiss. (Docket 14). Defendant then filed an answer. (Docket 15). Following completion of discovery, defendant filed a motion for summary judgment. (Docket 58). Briefing by the parties is complete and the motion is ripe for resolution.

FACTS AND PROCEDURAL HISTORY

The undisputed material facts are gathered from plaintiff's complaint (Docket 1), defendant's answer (Docket 15), defendant's statement of undisputed material facts (Docket 60), and plaintiff's response to defendant's statement of undisputed material facts (Docket 69). Wherever possible, references will be only to law enforcement officers ("LES") as that is the classification of employees relevant to this litigation even though the particular statute or regulation may also be pertinent to firefighters.

PLAINTIFF'S BLM/WYOMING EMPLOYMENT EFFORTS

Plaintiff Philip N. Geenen was age 59 at the time of the discrimination alleged in his complaint. (Dockets 1 #1 and 15 #1). Mr. Geenen began working for the DOA in 1989 in a law enforcement position. (Docket 60 #1).*fn2

At the time Mr. Geenen was first hired into a federal law enforcement position, he was 43 years old. (Docket 60 #2). He was originally employed by the DOA in 1988, but moved into the law enforcement position when that position opened in 1989. (Docket 70-5, p. 2).

On August 15, 2005, plaintiff applied for Vacancy Announcement Number WY-Merit-2005-0207. (Dockets 1 #3 and 15 #3). The vacancy announcement from the DOI-BLM stated, "Open to current Federal employees serving under a career or career conditional appointment. . . ." Id. The announcement provided:

LAW ENFORCEMENT RETIRTMENT [sic]:

This position is a primary law enforcement position under 5 U.S.C. 8336 (C) (CSRS) and 5 U.S.C. 8412 (D) (FERS). Persons making their first entry into a law enforcement position under these authorities cannot be selected if over age 37. Persons already in covered secondary positions or persons with previous approved service who apply for a primary position cannot be considered if their age at re-entry into the primary position exceeds 37 years after subtracting their years of service in covered positions. Applicant must provide evidence of current or previous coverage that would qualify. (Docket 60 #7). Section 8336(c) of Title 5, United States Code, relates to the civil service retirement system ("CSRS").*fn3 Section 8412(d) of Title 5, United States Code, relates to the federal employees' retirement system ("FERS").*fn4 The announcement indicated that candidates "must meet all qualifications and eligibility requirements[.]" (Docket 60 #4). The announcement declared that the position required a high level of "physical stamina and physical ability." (Docket 60 #5). The position was subject to a maximum entry age ("MEA") of 37. (Docket 60 #6).

Plaintiff's application, with all required information, was filed in a timely manner. (Dockets 1 #25 and 15 #17). Mr. Geenen was notified he was among the most highly qualified applicants and his application packet was being forwarded to the selecting official for further consideration. (Dockets 1 #26 and 15 #17).

At the time of the application, plaintiff completed a computer generated questionnaire called the "Quick Hire." (Docket 60 #8). One of the screening questions on the Quick Hire was:

1. I meet the mandatory age requirement for law enforcement positions because:

1. I am under 37 years of age.

2. I am 37 years or older, but I have prior Federal Civilian law enforcement or Federal firefighter experience covered by title 5 U.S.C. section 8336 © [sic] that when the years of service is subtracted from my current age I will be under 37 years of age.

3. None of the above. (Docket 60 #9). Plaintiff responded to this question by marking subsection

2. (Docket 60 #10). At the time of answering this question plaintiff's age (59) minus his years of service (2005-1989 =16) resulted in an effective age of 43. (59-16=43). (Docket 60 #11). At the time of his application, plaintiff exceeded the MEA by 22 years. (Docket 60 #12).

BLM/Wyoming informed plaintiff his application could not be considered because he did not meet the MEA. (Docket 60 #13). After receiving that information, plaintiff called BLM/Wyoming and spoke with the selecting official, Special Agent in Charge Michael Miller, who informed Mr. Geenen he did not qualify for the position based on the MEA requirement and BLM/Wyoming did not grant waivers. (Docket 60 #14). The only reason ever given by BLM/Wyoming for Mr. Geenen's non-selection was that he did not meet the MEA requirement. (Docket 60 #17).

At the time of his application, plaintiff was a federal law enforcement officer serving in a primary career position covered under the Special Law Enforcement Training/Firefighter retirement within the DOA-Forest Service ("FS"). (Docket 15 #4). Mr. Geenen claimed the MEA which was part of the job announcement and job requirement did not apply to him because he had been grandfathered into a special retirement program for law enforcement officers at the DOA. (Docket 60 #15). Plaintiff further asserted this 6c retirement program allowed him to work for 20 years with the federal government with any agency.*fn5 (Docket 60 #16).

A much younger person, Greg Courter, was hired to fill the position. (Dockets 1 #29 and 15 #17; 70-7; Miller depo. p. 32:9-12). Prior to this position Mr. Courter was a BLM ranger in New Mexico. Id. (Miller depo. p. 33:4-5).

DEPARTMENT OF INTERIOR POLICY STATEMENTS

In 1995, the DOI issued a memorandum to its bureau heads who employed law enforcement officers.*fn6 (Docket 59-9). That memorandum from the Secretary's Designee for Special Retirement Programs provided:

Subject: Maximum Entry Age

The [DOI] recognizes the need to maintain a young and vigorous workforce in physically arduous law enforcement officer . . . positions. The purpose of this memorandum is to establish a Departmentwide [sic] maximum entry age to ensure that those positions are held by men and women who are physically capable of meeting the rigorous demands of law enforcement . . . activity.

In conjunction with 5 U.S.C. 8336(c) and 5 U.S.C. 8412(d) regarding enhanced retirement for law enforcement officers . . . , the maximum entry age is 37 for law enforcement officers . . . . This coincides with the mandatory retirement age of 57 for law enforcement officers . . . .

Employees who are reassigned as a management directive into covered primary positions are allowed to exceed the maximum entry age, provided the employee meets the physical standards for primary or rigorous positions. This is in effect only during each bureau's initial transition to benchmark or standardized law enforcement . . . primary positions. Management must recognize that employees in this situation cannot be mandatorily retired until they attain 20 years in covered positions, provided they meet the physical standards.

Exceptions to the maximum entry age policy are allowed in rare situations involving especially qualified individuals and the unique needs of the bureau, or where documented skills shortages arise in specific . . . law enforcement positions. Each bureau head is responsible for approving exceptions and for ensuring that documentation in each individual's Official Personnel File is maintained for each exception made. This approval authority may be redelegated no lower than the bureau head of administration or appropriate headquarters official, as determined by the bureau head. Id.

On February 11, 2002, DOI, through the Director of Personnel Policy ("DPP"), issued Personnel Bulletin 02-7 on the subject of Maximum Entry Age for Law Enforcement Officers and Firefighters and Waiver of Maximum Entry Age. (Docket 59-6). After referencing the Congressional policy of "employing a 'young and physically vigorous' workforce in all law enforcement . . . positions that involve sufficiently rigorous duties. . . . ," this bulletin reiterated the MEA of 37 years of age, but clarified that:

Individuals age 37 and over may re-enter a primary law enforcement . . . position if they are able to complete a total of 20 years of covered and creditable law enforcement . . . service by the mandatory retirement age of 57. Prior service in covered positions may be subtracted from the applicant's age to determine if he or she meets the MEA. Such prior service must also be creditable for retirement. . . .

Id. This bulletin also established a provision for the use of waivers from these age limitations:

Waivers

The special retirement provisions were enacted because of the rigorous physical requirements of certain positions. Special retirement provides law enforcement officers . . . with an enhanced annuity at a younger age than under the regular retirement provisions.

Waivers of the MEA are allowed only in the ram [sic] instance that an individual has unique experience and skills that are critical to the accomplishment of the mission. More than rare use of the waiver authority contradicts the need to maintain a young and vigorous workforce and erodes the theory behind the special retirement program. For this reason, the Director of Personnel Policy must concur with future waivers prior to their approval. Once approved by the bureau head, forward a copy of the waiver to [DPP] . . . . The Office of Personnel Policy will also obtain the concurrence of the Office of Law Enforcement and Security on law enforcement waivers . . . . Id.

DOI's Personnelist: Recruitment was revised on May 3, 2002, to reflect the MEA provision. (Docket 59-10). This publication, in pertinent part, stated:

Recruiting Statement for Primary FF/LEO Positions . . . .

Applicants NOT currently in a special retirement position, must not have reached their (37th birthday for . . . law enforcement positions) upon appointment to this position. Those over the maximum entry age MAY be eligible for re-entry into a primary . . . law enforcement position IF there is prior Federal service, creditable toward retirement in covered law enforcement officer . . . positions, and the prior service is sufficient to permit retirement on, or before, the mandatory retirement age for these types of positions.

ONLY SERVICE CREDITABLE TOWARD SPECIAL RETIREMENT MEETS THIS DEFINITION. (E.G., Permanent or Term service in a covered position . . . .). . . . .

The maximum entry age requirement does not apply to:

* When filling a position not subject to either CSRS or FERS retirement;

* To a DOI employee who moves directly from one rigorous law enforcement . . . position to another.

* Secondary positions are not subject to MEA requirements. L Employees in primary positions are subject to ...


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