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FAHERTY v. LOCKHART

September 26, 1990

STEPHEN J. FAHERTY, SR., Plaintiff
v.
JAMES B. LOCKHART, Defendant



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Steven J. Faherty, Sr. brought this action against defendant James B. Lockhart in his official capacity as the Executive Director of the Pension Benefit Guaranty Corporation (hereinafter "PBGC" or "the agency") alleging that he was the victim of age and sex discrimination and of retaliation for participating in the Equal Employment Opportunity process. Mr. Faherty's amended complaint is in three counts. Count I alleges that Mr. Faherty was discriminated against on the basis of his age in May 1987, in contravention of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a, et seq., when Kathleen Utgoff (PBGC's Executive Director at that time) did not select him for the position of career Deputy Executive Director for Management and Operations (hereinafter "DED position"). Count I also alleges that Dr. Utgoff engaged in a continuing pattern and practice of discrimination against career high level managers and executives over 40 years of age. Count II of the amended complaint alleges that Mr. Faherty was denied an executive parking space in January 1989, in retaliation for filing an EEO complaint regarding the selection for the DED position, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq. Mr. Faherty further alleges in Count II that he was discriminated against on the basis of his age, in violation of the ADEA, and on the basis of his sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, when the new parking policy was implemented by PBGC. Count III of the amended complaint alleges that Mr. Faherty was the victim of age and sex discrimination and of retaliation in April 1989, when he was not selected for the GS-16 position of Director, Information Resources Management Operation Department (hereinafter "IRMD position").

 The Court finds, after six days of trial, that Mr. Faherty failed to prove any of his claims of discrimination or retaliation, and that defendant is entitled to judgment.

 I. FINDINGS OF FACT

 Mr. Faherty is currently employed as a GS-340-16, Program Manager, in the position of Deputy Director of the Insurance Operations Department at the Pension Benefit Guaranty Corporation. He has held this position since May 1986.

 Mr. Faherty is a male, who was born on January 7, 1940. At all times relevant to this case, Mr. Faherty was over 40 years of age.

 At all times relevant to this case, Dr. Kathleen Utgoff was the Executive Director of the PBGC. Dr. Utgoff was appointed to the position of Executive Director of the PBGC effective August 12, 1985, and served in that capacity until June 26, 1989. The Executive Director of the PBGC is a non-career position, obtained through a political appointment. Dr. Utgoff, a female, was born on February 5, 1948.

 The PBGC is a United States Corporation created by Title IV of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1301-1461 ("ERISA"). The PBGC guarantees the payment of certain pension benefits when pension plans covered by Title IV terminate. See ERISA §§ 4021, 4022; 29 U.S.C. §§ 1321, 1322.

 Within PBGC, the Office of the Executive Director ("OED") oversees all other departments.

 When Dr. Utgoff arrived at the PBGC, it was experiencing severe problems in the areas of budget and computers. The agency was running a deficit of approximately $ 100 million to $ 200 million a month, brought on by a number of complicated factors, including inadequate legislation and increased pension plan terminations. Additionally, the computer capacity was such that Dr. Utgoff was unable to obtain various pieces of important information regarding the status of accounts at the agency, including such information as the number of pensioners the PBGC was paying or the amount of premiums it was collecting at any given time.

 Dr. Utgoff decided that her primary focus as Executive Director should be working on legislation to raise PBGC's premium structure and to amend the broad ERISA provisions which permitted companies to terminate their plans, effectively leaving PBGC with huge pension obligations.

 Given that she would be spending inordinate amounts of time trying to persuade both Congress and the White House to support her legislative initiatives, Dr. Utgoff decided it was important that PBGC be perceived as a well-run agency. Dr. Utgoff obtained the help of Mr. Steve Lorch, an expert management consultant, to advise her on the operational problems of the agency. Based on his recommendation, Dr. Utgoff decided that the PBGC was in immediate need of a Deputy to manage the day-to-day operations of the agency, to be the arbiter of in-house turf battles, and guide the agency to a resolution of its two most pressing internal problems: the budget and computers.

 At that time, Mr. Vasquez was working at the Office of Management and Budget ("OMB") as a SES-4 Chief of the Central Budget Management Staff. Mr. Vasquez was known for his highly successful design and implementation of the OMB computer system program used to manage the Gramm-Rudman budget requirements for the United States. Although not his primary responsibility, Mr. Vasquez was also involved in OMB's consideration of pension issues related to then pending pension legislation in the Congress, particularly the premium rate legislation. Mr. Vasquez, a male, was born on October 19, 1950.

 Mr. Vasquez had been the recipient of many honors and awards, including a citation by the President of the United States in June 1986, for his "outstanding accomplishments." *fn1" This citation was one of approximately six to ten made by the President during that year. *fn2" In 1987, Mr. Vasquez was nominated by OMB for an Achievement Award in Managing Information Technology. *fn3" Mr. Vasquez received "outstanding" performance ratings at OMB during 1983, 1984, and 1985. Additionally, he received cash awards in the amounts of $ 10,000, $ 10,000, and $ 6,500 in those years, respectively.

 In his position at OMB, Mr. Vasquez supervised a small staff of professionals and contractors in the operation of a budget data base and supervised executive budget exercises for professionals not on his immediate staff. Before he worked at OMB, he was employed in the private sector, where he gained supervisory and finance experience, as well as some experience on pension issues.

 In November or December, 1986, Dr. Utgoff arranged to meet with Mr. Vasquez over lunch. Prior to this meeting, Mr. Vasquez did not know Dr. Utgoff, or any other official at the PBGC. Dr. Utgoff testified that she asked Mr. Vasquez to have lunch to discuss budget problems at PBGC. Dr. Utgoff did not offer Mr. Vasquez a position at the PBGC, nor did she make Mr. Vasquez any promises. The conversation focused primarily on the budget and computer problems currently being experienced at PBGC, and whether these problems were of the kind to interest Mr. Vasquez. The lunch was clearly an opportunity for Dr. Utgoff to feel Mr. Vasquez out as to his interest in working at a place like PBGC, and an opportunity for Mr. Vasquez to determine what PBGC did, and how someone with his kind of background could be used at the PBGC.

 Sometime after the meeting, Dr. Utgoff asked Mr. Royal Dellinger to meet with Mr. Vasquez. Mr. Dellinger, a political appointee, was the PBGC's chief negotiator on legislative initiatives. Mr. Dellinger was born on September 26, 1949.

 Mr. Vasquez and Mr. Dellinger met in November or December 1986. Mr. Dellinger did not offer Mr. Vasquez a job during this meeting. Following the meeting, Mr. Dellinger reported to Dr. Utgoff that he found Mr. Vasquez to be someone with whom he could work.

 At Dr. Utgoff's request, Mr. Tobin began to prepare a package for submission to the White House Personnel Office proposing Mr. Vasquez for a non-career executive assignment. In December 1986, Mr. Vasquez met with Mr. Tobin to discuss whether Mr. Vasquez would be interested in coming to the PBGC as a political employee. During that meeting, Mr. Tobin asked Mr. Vasquez if he had any political credentials that would assist him in obtaining White House approval for a political appointment. Mr. Vasquez indicated that he had none. Ultimately, the political appointment route was not successful, despite efforts made by PBGC's personnel office and Royal Dellinger to encourage the White House to approve the appointment.

 During the fall, and during the time that Mr. Vasquez was meeting with Dr. Utgoff, Mr. Dellinger and Mr. Tobin were in the process of preparing a draft position description for a new Deputy Executive Director for Management and Operations. In the past, the DED position had been filled by a political appointee, the most recent having been Kevin Putt.

 During the preparation of the position description, Mr. Tobin suggested to Dr. Utgoff that both Mr. Vasquez and Mr. Dellinger review the draft position description. At the time, she and Mr. Tobin both realized that the responsibilities that would possibly be assigned to Mr. Vasquez, if his political appointment was approved, would dovetail with those of Mr. Dellinger. Given the organizational changes anticipated at PBGC, particularly with regard to the focus on the pressing problems of budget and computers, Dr. Utgoff felt it was appropriate to circulate drafts of the position description for comment. Mr. Vasquez reviewed the draft position description during the time that efforts were made to obtain White House approval for a political appointment.

 Mr. Vasquez reviewed the draft position description, recommended some additions, and returned it to the agency. Plaintiff's Exhibit 4. *fn4" The changes that he made amounted to six inserts, which the Court finds were not "OMB sensitive," or targeted specifically to someone with only Mr. Vasquez's credentials. The additions dealt with broad managerial functions and with budget and computer matters, which many potential employees might have been able to meet. The OMB circulars cited in the additions made by Mr. Vasquez had governmental-wide applicability, were applicable to the PBGC, and were commonly known to and applied by high level executives in governmental agencies. Indeed, Mr. Faherty testified that he was familiar with the circulars himself.

 Mr. Dellinger also reviewed the draft position description, but made no changes. Mr. Vasquez's recommendations were ultimately accepted by Dr. Utgoff, and incorporated into the position description which was submitted to the White House during the efforts to obtain approval for a political appointment.

 When the White House indicated that Mr. Vasquez's political appointment would not be approved because of his insufficient political credentials, Mr. Tobin informed Dr. Utgoff that the only way to fill the position of DED was through the competitive selection process. Mr. Tobin submitted a draft vacancy announcement to Dr. Utgoff around December 19, 1986.

 Given the pressing problems of the agency, Dr. Utgoff felt there was an immediate need for someone to handle the day-to-day functions of the agency. Mr. Tobin suggested that Mr. Vasquez might be interested in a temporary detail at the PBGC, until someone could be selected through the competitive selection process for the DED position.

 Dr. Utgoff contacted Mr. Vasquez to find out if he would be interested in coming to the PBGC on an inter-agency detail. Mr. Vasquez stated that he would be so interested. At no time did Dr. Utgoff ever promise Mr. Vasquez a permanent position. In fact, both she and Mr. Vasquez testified that Dr. Utgoff made clear that the DED position would be filled through competitive selection, and that Mr. Vasquez was not guaranteed the position. Mr. Vasquez had reached the decision that he was ready to leave OMB, regardless of what PBGC could offer him. He testified that during the time in which he was talking with officials at the PBGC, he was looking into other opportunities, and was using the services of a head hunter. Thus, there is no basis for the charge that merely because Mr. Vasquez had no plans to return to OMB, he believed he was guaranteed a permanent position at PBGC. All of his actions indicate that, having made the decision to leave OMB, Mr. Vasquez was willing to consider a temporary detail at the PBGC, that might work out into something more permanent. If the PBGC did not work out, he ...


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