agency may create [larger] competitive areas . . . ." Id. (emphasis added). Under Grier then, it is clear that an agency is permitted to limit its designation of a competitive area to a single primary subdivision, such as OPR, and that, while it may expand that area if it so chooses, it is not legally obligated to do so.
Plaintiff contends that a competitive area may only be limited to a primary subdivision in agencies that are part of the "departmental services" -- i.e., executive cabinet level departments; independent establishments such as the EEOC, he claims, must establish as their competitive area the whole portion of that agency located in a local commuting area. The distinction plaintiff seeks to draw, however, finds no support in the decisions of either the MSPB or the courts; indeed, it has been implicitly rejected by a number of cases which have upheld competitive area designations limited to single divisions within other independent establishments.
See Ginnodo v. Office of Personnel Management, 753 F.2d 1061 (Fed. Cir. 1985) (upholding designation of competitive area that consisted of a one-person office within OPM); May v. Interstate Commerce Commission, 84 FMSR 5374 (1984) (upholding limitation of competitive area to Office of Hearings in ICC); Tuggle v. Consumer Product Safety Commission, 84 FMSR 5242 (1984) (upholding designation of single Commissioner's Office of only five persons within CPSC).
In view of the foregoing, the court concludes that defendant's designation of OPR as the competitive area was proper, and therefore that defendant is entitled to summary judgment on Count II of the complaint.
If plaintiff is to prevail, then, he must show that the Commission's RIF decision, although properly executed, was improperly motivated by discriminatory animus based on his age. He contends that Warren Bullock, Director of the Personnel Operations Division, reassigned him to OPR in order to make room for his "younger cronies," and simultaneously to force plaintiff out of government service. Plaintiff alleges that at the time of his reassignment in September 1984, Bullock knew that the Experimental Programs Division in OPR was a likely candidate for abolition; it was not until the RIF was announced in May 1985, however, that plaintiff himself understood the full extent of Bullock's alleged machinations.
Defendant moves for summary judgment on plaintiff's ADEA count on the ground that it fails to state a claim upon which relief can be granted. This is so, defendant contends, because if true, the allegations of the complaint fail to state even a prima facie case of discrimination.
The court cannot agree.
The elements of a prima facie case of age discrimination in a RIF setting are, as defendant points out, (1) a showing that plaintiff was within the protected group and was adversely affected by the RIF; (2) a showing that he was qualified to assume another position at the time of the RIF; and (3) production of some evidence, direct or circumstantial, from which a factfinder may find that the employer intended to discriminate. Williams v. General Motors Corp., 656 F.2d 120 (5th Cir. 1981). Defendant claims plaintiff cannot satisfy the latter two requirements because the undisputed evidence before the MSPB revealed that he was not qualified for any of the seven positions open in OPR, and because it is undisputed that, of the four individuals that plaintiff claims were preferentially transferred out of EPD prior to the RIF, two were over 40 and two were under 40, thus demonstrating the absence of age discrimination.
Defendant's contentions are flawed, however, in at least two respects. First, whatever the undisputed evidence before the MSPB, that evidence has not been put before this court. Rather, defense counsel has simply attached the opinions of the MSPB to the motion for summary judgment, as well as his own unsworn declaration, pursuant to 28 U.S.C. § 1746, that the recitation and account of testimony given by witnesses before the MSPB set out in defendant's motion and reply brief is, to the best of counsel's knowledge, accurate and correct. This court's review of plaintiff's claim before the MSPB, however, is de novo. Nabors v. United States, 568 F.2d 657 (9th Cir. 1978). While the court may consider the administrative record when relevant, a grant of summary judgment based on the factual findings of the MSPB presiding official and the factual representations of defense counsel would effectively deny plaintiff his right to a de novo hearing. Second and more importantly, the essence of plaintiff's ADEA claim is not that the RIF was carried out in a discriminatory fashion, but that the events prior to the RIF were improper. For this reason plaintiff's claim cannot be neatly analyzed according to the framework set out in Williams v. General Motors Corp.; whether or not plaintiff was qualified for any of the seven vacancies in OPR after the RIF is essentially immaterial to his claim that Warren Bullock transferred him to EPD with the knowledge that that division's days were numbered, and with the intent and purpose of getting rid of him. It is true that plaintiff has offered little evidence other than his own belief in support of this claim, but defendant's representations concerning undisputed testimony before the MSPB do not negate that claim, or so impugn it that this court must enter summary judgment in favor of defendant.
Accordingly, for all the foregoing reasons, it is this 1st day of July, 1987
ORDERED that defendant's motion to dismiss count I of the complaint be and it hereby is denied; and it is
FURTHER ORDERED that defendant's motion for summary judgment as to count II of the complaint be and it hereby is granted.
A separate judgment accompanies this opinion.
Discovery shall terminate on September 14, 1987, and on that same date, at 9:15 a.m., a status/settlement conference shall be held in chambers, to which counsel must bring maximum authority to settle this cause. Absent settlement, pretrial and trial dates shall then be scheduled.
In accordance with the Memorandum Opinion and Order issued this date, judgment as to count II of the complaint is hereby entered in favor of the defendant, Chairman, Equal Employment Opportunity Commission, and against the plaintiff, George W. Stover.