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January 6, 1989

TINA C. HOBSON, Plaintiff,
JOHN S. HERRINGTON, Secretary of Energy, Defendant

John Garrett Penn, United States District Judge.

The opinion of the court was delivered by: PENN


 Plaintiff is a former employee of the Department of Energy (DOE) who had been a member of the Senior Executive Service (SES). After a reduction in force (RIF) within the DOE, plaintiff lost her job, and she was eventually removed from federal employment. She challenged her removal before the Merit Systems Protection Board (MSPB), where she alleged sex discrimination, prohibited personnel practices, and violations of civil service law and regulations. The hearing examiner (HE) for the MSPB denied her claims and upheld the DOE's actions. Plaintiff then filed this action pursuant to the Civil Service Reform Act of 1978 (the Act), 5 U.S.C. §§ 7702(e)(3) and 7703(b)(1) and (2), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, and the Fifth Amendment. The case is now before the Court on the parties' cross-motions for summary judgment on the MSPB claims, and on plaintiff's motion for summary judgment on her claim for sex discrimination. After carefully considering the motions, the opposition to them, and the record in this case, the Court concludes that defendant's motion should be granted, and that plaintiff's motions should be denied.

 The essence of plaintiff's MSPB claims is that the RIF as applied to her was based on personal and political animosity rather than performance. Her three major objections are to the declaration of her position as surplus, the failure to change her performance appraisal, and the failure to place her in another job. Plaintiff, in her motion, states the issue as whether there was substantial evidence for the HE's finding that there was a non-discriminatory explanation for the personnel actions which were taken against her. At argument, however, plaintiff also maintained that even if the individual actions could be justified, they were a pretext for getting rid of her.

 The parties agree that "substantial evidence" is the proper standard for reviewing the MSPB claims. Although plaintiff contended in her brief that the decision below should be set aside as contrary to the weight of the evidence, counsel conceded at the argument on the motion that the decision must be upheld if it is supported by substantial evidence. Her claim of sex discrimination will be reviewed de novo.


 While the Act contemplates that SES employees might be removed, clearly, this is to occur only if they cannot be placed elsewhere in the SES, and not because of political disagreements. 5 USC § 3595. The goal of the legislation creating the SES is to retain a professional managerial force within the government. Furthermore, although the Act does not entitle a removed SES employee to a government service job at level 15 (GS-15), the DOE's internal regulations provide for reinstatement of removed SES employees to vacant GS jobs as feasible. DOE Order 3351.2 at 10.

 Plaintiff complains of a number of adverse actions taken against her which she claims were either improper in themselves, or were evidence of an unlawful plan to move her out of the DOE and the SES. Plaintiff's initial transfer is not at issue here, but she offers it as evidence of bias against her. The DOE asserts that it was only a detail, not a transfer, and that it was voluntarily withdrawn. The circumstances surrounding this transfer or detail do suggest that it is probative evidence of bias against her. *fn1"


 Plaintiff also challenges the determination that her position was surplus for the purposes of the RIF. Joseph Tribble, the head of CE, stated that the neutral criteria for the SES RIF as applied to CE were that: (1) there would be no positions for deputies to deputies; and (2) those managing budgets of less than approximately $ 10 million would be removed.

 The DOE argues that these were arbitrary criteria aimed at reaching CE's limit of 26 SES jobs. It argues that the Executive Review Board (ERB) was not bound by this guideline, and that evidence shows that they did their own review. The DOE states that one deputy was kept where the senior position was vacant. The DOE also states that Congress's increase of the weatherization program's budget from zero to 145 million mandated the retention of Mr. Flynn as an SES. DOE argues that the 20% increase in plaintiff's budget did not mandate similar consideration.

 The HE accepted these arguments and found that the actions did not evidence bad faith against plaintiff or indicate that plaintiff was treated differently from Flynn. (Opinion at 9.) *fn3" Plaintiff contends that the HE ignored the retention of the one deputy.

 Although the ERB might not have been bound by Tribble's guidelines, it appears that it followed them, and that it labeled all requested jobs as "surplus". Also, when faced with the budget increase for weatherization, the DOE chose to allocate an additional SES position rather than to cut someone else. Clearly, Tribble did not follow his own neutral criteria when it came to plaintiff's position. However, the HE accepted his explanation for failing to do so. She found his criteria to be a "general objective means by which to decide which positions should first be reviewed to see if they were surplus." (Opinion at 9.) Her decision is supported by substantial evidence.


 In conducting the RIF, the DOE used an appraisal for plaintiff which was based upon the application of the standards for her previous position to the one she had been in for six weeks. Although plaintiff had agreed to the rating of "fully satisfactory," she contends that the appraisal was invalid. The essence of plaintiff's argument on this appeal is that since an invalid appraisal was used to determine her status in the RIF competition, DOE should have used her revised appraisal in a new RIF competition. The updated appraisal included an evaluation from one of plaintiff's previous supervisors for part of the time supposedly covered in the original appraisal, and ...

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