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GREENE v. RUMSFELD

June 9, 2003

TERRY F. GREENE, PLAINTIFF
v.
DONALD H. RUMSFELD, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING THE DEFENDANT'S MOTION TO ENFORCE SETTLEMENT
I. INTRODUCTION

This employment-discrimination matter comes before the court on the defendant's oral motion to enforce the settlement agreement that defendant Donald Rumsfeld, Secretary of Defense, believes the parties reached during settlement discussions. Plaintiff Terry F. Greene, an employee of the Defense Intelligence Agency ("DIA" or "the agency") of the Department of Defense ("the Department"), contends that the parties did not reach a final settlement agreement. On April 30, 2003, the court held a hearing at which the parties presented testimony as to whether they had arrived at a final settlement agreement. Resolving all issues of fact in favor of the defendant, the court concluded that the parties had reached a final settlement agreement that required the plaintiff to retire immediately. The court thus granted the defendant's motion to enforce the settlement. The court now sets forth its findings of fact and conclusions of law.

II. BACKGROUND

A. The Plaintiff's Factual Allegations

The plaintiff, a colonel in the United States Army Reserve, was a grade GS-14 Senior Security Officer assigned to the Security Operations Division of the Counterintelligence and Security Activity Directorate for Administration at DIA. Compl. ¶¶ 7, 11. In June 1998, the defendant issued a vacancy announcement for the grade GS-15 position of Supervisory Security Officer/Division Chief of the Security Operations Division ("Division Chief"). Id. ¶ 8. The announcement identified several skill areas required for the Division Chief position: comprehensive knowledge of the intelligence community; knowledge of foreign intelligence services' methods of operation; knowledge of the defendant's planning, programming and budgeting processes; ability to analyze and resolve complex policy and procedure issues; knowledge of military and civilian personnel management and training; and communications skills. Id. ¶ 9.

Having held multiple supervisory assignments for which he received outstanding evaluations and having completed advanced training in intelligence and counterintelligence, the plaintiff applied for the Division Chief position. Id. ¶¶ 10-12. Of the eight applicants, he was the only African-American from within DIA and the only applicant who had engaged in protected equal employment opportunity ("EEO") activity. Id. ¶ 12. In August 1998, the selection panel appointed to review the applications determined that the plaintiff did not fit the requirements of the position, and did not select him to be interviewed by the selecting official. Id. ¶¶ 13-14. After the plaintiff brought the panel's determination to the attention of high-level DIA officials, the defendant replaced one of the selection panel members, and the panel selected the plaintiff and three white applicants for the selecting official to interview. Id. ¶¶ 15, 17, 19, 22. In September 1998, the selecting official interviewed the plaintiff and, in his notes, evaluated the plaintiff as the most qualified for the position. Id. ¶ 24.

Over the next two months, however, the defendant took no action to select one of the four applicants for the Division Chief position. Id. ¶ 25. In November 1998, the defendant canceled the vacancy announcement, opting instead to conduct a review of the division's organization. Id. ¶ 26. On January 21, 1999, the plaintiff requested and received a three-month rotation in the vacant Division Chief position. Id. ¶ 28. In May 1999, the defendant announced that a "senior executive" from the Central Intelligence Agency ("CIA") would fill the Division Chief position on a temporary two- or three-year basis. Id. ¶¶ 29-30. According to the plaintiff, however, the CIA employee chosen to fill the position had no knowledge of or experience with the defendant's operations. Id. ¶ 30.

During this period, the plaintiff experienced several personnel actions. First, in November 1998, the official who conducted the organizational review requested an investigation of the plaintiff, alleging that the defendant had committed misconduct by "bragg[ing] about getting a GS-14 by filing an EEO complaint and that he was about to get his GS-15 the same way." Id. ¶ 27. The defendant rejected the official's request as unfounded. Id. Second, in July 1999, the defendant nominated but did not select the plaintiff — the only black nominee and the only nominee who had engaged in protected EEO activity — as one of 20 employees who received DIA's highest award for civilian service. Id. ¶ 31. In September 2001, the defendant removed several of the plaintiff's principal duties as leader of a task force and participant in a mission. Id. ¶ 33. Finally, in February 2002, the plaintiff received an "Exceeds Fully Successful" performance appraisal, the lowest rating the plaintiff had received since 1993. Id. ¶ 32.

B. Procedural History

On June 27, 2001, the plaintiff filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that the defendant discriminated against him on the bases of race and gender, and in retaliation for prior protected EEO activity. On March 18, 2002, after the defendant filed its answer, the court held an initial status hearing at which the court issued a briefing schedule and referred the case to United States Magistrate Judge John M. Facciola for settlement discussions. Order dated Mar. 18, 2002. On April 12, 2002, the plaintiff filed an amended complaint adding to his retaliation claim the defendant's September 2001 removal of several of the plaintiff's duties and the defendant's February 2002 evaluation of the plaintiff. Am. Compl. ¶¶ 32-33.

On April 30, 2003, at the defendant's request, the court held a hearing on the defendant's oral motion to enforce settlement, taking evidence on the question of whether the parties had arrived at an enforceable settlement agreement. The defendant argued that the parties had reached an enforceable agreement, of which an essential component was the plaintiff's immediate retirement from the DIA. The plaintiff countered that because the parties had yet to negotiate a date for the plaintiff's retirement under the agreement, they had not reached an enforceable final agreement.

At the hearing, the court heard testimony from Magistrate Judge Facciola, defendant's counsel Assistant United States Attorney Lisa S. Goldfluss, agency counsel Commander Robert Schapler, plaintiff's counsel June Dorothy Kalijarvi, and the plaintiff. Based on evidence presented during the hearing, and resolving all issues of fact in favor of the defendant, the court concluded that the parties reached a final agreement on March 31, 2003, and that the agreement required the plaintiff's immediate retirement from DIA. Having issued an order on April 30, 2003 granting the defendant's motion to enforce settlement, the court now sets forth its Findings of Fact and Conclusions of Law, including but not limited to the following:

III. FINDINGS OF FACT

A. The Settlement ...


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