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McNally v. Norton

July 30, 2007

LAWRENCE J. MCNALLY, PLAINTIFF,
v.
GALE NORTON,*FN1 SECRETARY OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Three times Sergeant Lawrence J. McNally, an experienced and respected officer with the United States Park Police ("USPP"), applied for a transfer to the canine unit. Three times others were selected, who were younger, and/or of different race and/or gender. Sgt. McNally brought suit against Gale Norton, Secretary of the U.S. Department of the Interior, of which the USPP is a constituent agency, in her official capacity. Sgt. McNally alleges discrimination on the basis of race, gender, and age in his non-selection in 2000 and discrimination based upon age in his non-selection in 2003 and 2004.*fn2

The Park Police acknowledge that Sgt. McNally has presented a prima facie case of discrimination for each of the selections at issue*fn3 but insists that it has presented legitimate, non-discriminatory reasons for each choice. This matter was tried to the Court on November 28 -- 30, 2006. Based on the trial record, the demeanor of the witnesses, and the parties' proposed findings of fact and conclusions of law, the Court concludes that the Park Police relied on terribly informal selection procedures but that there is no evidence that Sgt. McNally was victimized by illegal discrimination instead of by his own negative reputation. Judgment will be entered in favor of the Park Police and the complaint will be dismissed.

I. FINDINGS OF FACT

1. Sgt. McNally held the position of Police Sergeant, SP-4/6, within the U.S. Park Police ("Park Police" or "USPP") and was stationed at the Greenbelt, Maryland, Station during the relevant time period. He is a white male, born on June 22, 1951. He had starting working for the Park Police in 1975 and was promoted to the rank of police sergeant on September 30, 1990. Park Police officers are eligible to retire after 20 years of service and are required to retire at age 60.

2. The re-assignments that Sgt. McNally challenges here resulted from postings in 2000, 2003, and 2004, when he was, respectively, 49, 52 and 53 years old, and had sufficient years of service to be eligible for immediate retirement if he had so chosen. For ease of reference, the

Court and the parties labeled the 2000, 2003, and 2004 vacancies the "Line Dog" vacancy, the "Bomb Dog" vacancy, and the "Patrol Dog" vacancy, respectively.

A. The Line Dog Vacancy

3. On September 27, 2000, the USPP Weekly Bulletin announced a vacancy for the position of Supervisor, Canine Unit, Support Services Group (the Line Dog vacancy). The announcement required a successful candidate to live within 45 miles of the Zero Milestone and be able to kennel the canine at his residence; applications were due by October 20, 2000. While officially a transfer from one sergeant's position to another, within Pay Classification 4, Line Sergeants are at step 5 and Technician Sergeants, such as this canine position, are at step 7. Thus, the posted position involved a pay increase of 6%, a department take-home vehicle, as well as kennel expenses, veterinary expenses, and the cost of dog food and housing for the canine.*fn4

4. Sgt. McNally and eleven other sergeants applied for, and were qualified for, the Line Dog vacancy. Each timely submitted an application on USPP Form 46 to the USPP Personnel Office.

5. In 2000, the Commander of the Horse Mounted Patrol Unit and Patrol Canine Unit was Lieutenant Jackie Burks.*fn5 Lt. Burks had joined the Park Police on January 7, 1990, was promoted to sergeant in March 1996, and was promoted to lieutenant in October 1998. She had led the two animal units since 1999. Lt. Burks was born in 1967 and was 33 years old at the time of her recommendation for the Line Dog vacancy. Tr. Day 1, Lt. Burks at 30.*fn6 She is Caucasian.

6. The Personnel Office prepared a Certificate of Eligible Candidates which Captain William Lynch, Lt. Burks's superior officer, gave to her. He also provided the Forms 46 for all applicants and directed her to review and rank them, and to prepare a written recommendation for him. He gave her no other instructions on how to proceed. Lt. Burks had no prior experience in reviewing or processing re-assignment applications. Tr. Day 1, Lt. Burks at 15 ("That's correct, this was my first time.")

7. Lt. Burks reviewed all of the applications that had been submitted. She reviewed the accompanying documentation with each application and took into consideration what the command staff had said or thought about these individuals. She ranked and recommended Sgt. Christine Lopez (Hispanic female, born 1966) as her first choice, Sgt. Scott Fear (Caucasian male, born 1967) as her second, and Sgt. David Schlosser (Caucasian male, born 1964) as her third.

8. "Lt. Burks relied on such factors as the gregarious nature of Sergeant Fear even though it was not part of the selection criteria. She also claimed Sergeant Fear was a 'quick study' and appeared to be energetic. Lt. Burks liked the fact that Sergeant Christine Lopez served as an administrative sergeant in New York, an EEO counselor, a shop steward for the union and served on the violent crime task force. Lt. Burks relied solely on these factors and consequently never developed objective job-related criteria about what a sergeant in the canine unit would have to do in order to be successful." Plaintiff's Proposed Findings of Fact ("Pl.'s Facts") ¶¶ 27-29 (record citations omitted).

9. Lt. Burks testified, "I reviewed all of the applications that had been submitted to me. I reviewed the documentation that had been attached with each application. I took into consideration what I knew about these individuals and I took into consideration essentially what the command staff had said or thought about these individuals and I made a recommendation for the three sergeants that I thought would be good solid candidates to fill this vacancy. . . . [B]ecause we are a small agency and out of the 12 sergeants, I mean, I have been on the job since 1990. Since in ten years time you've met everyone, you have seen everyone, you've heard them on the police radio, you've heard others talking about them. I think all of those things go into the personal knowledge of the candidates." Tr. Day 1, Lt. Burks at 16.

10. Lt. Burks had never supervised any of the sergeants on the candidates' list and had never completed a performance rating on any of them. Id. at 17, 48. She relied on community relations experience for Sgt. Lopez but did not use that factor for Sgts. Fear or Schlosser. Id. at 45-48. However, she knew from their backgrounds that Sgts. Lopez and Fear had training on DARE*fn7 presentations and concluded that each would therefore be able to represent USPP and speak with the community. Tr. Day 3, Lt Burks at 45-47.

11. Even though the vacant position required canine handling, Lt. Burks did not rely upon any of the job-related criteria customarily used by the Park Police in selecting a canine officer when evaluating the candidates. Tr. Day 1, Lt. Burks at 38 ("Q. But in selecting or recommending the canine supervisor sergeants [sic] position you did not rely on the criteria used by the department for the selection of a canine officer, did you? A. That's correct.").

12. The canine sergeant is essentially required to run his or her own unit, as the first line supervisor for all canine officers. The canine sergeant was responsible for the preparation of the daily detail, approval or denial of leave, completion of reports for use of the canines, setting up training, and dealing with vendors and the public. Tr. Day 3, Lt. Burks at 40-41. This is specialized work because the dogs are trained to bite; "they are a use of force." Tr. Day 1, Lt. Burks at 54; Tr. Day 3, Lt. Burks at 50.

13. Lt. Burks wanted a canine sergeant who was "operationally and administratively sound." Tr. Day 1, Lt. Burks at 38. As to the administrative component of the position, she wanted a sergeant who could: (i) prepare the daily detail; (ii) take care of payroll; (iii) ensure that all reports were accurate; (iv) take care of the fleet vehicles; (v) ensure vendor forms were completed; and (vi) get the required paperwork done. Id. at 38-39. As to the operational component, she wanted a sergeant who would be current with policy rules and regulations, who could follow the rules, and who was respected by management. Id. at 39. See Pl.'s Facts ¶¶ 39-40.

14. Lt. Burks did not review the applicants' official personnel folders, work files, or training files. Tr. Day 1, Lt. Burks at 42. She agreed that Sgt. McNally's application was more comprehensive than the others. Id. at 43-44 ("Q. Was anybody else's application as meaty as Sergeant McNally's was? A. No sir.").

15. Because the Form 46 asks for each applicant's date of birth, it would have been possible to calculate their ages. Id. at 22. Lt. Burks recalled that Sgt. Lopez was 33-34 years old, Sgt. Fear was in his thirties, and Sgt. Schlosser was between 37 and 39 years of age at the time of her recommendation. Id.*fn8 Sgt. Lopez had four years and seven months as a sergeant; Sgt. Fear had two years and seven months as a sergeant; and Sgt. Schlosser had nine years and nine months as a sergeant. Id. Sgt. McNally had ten years and three months as a sergeant. Id. at 23.

16. At that time, Sgts. Lopez and Fear both had ten years of Park Police service; Sgt. Schlosser had 15 years of service; and Sgt. McNally had 25 years of service and was five years past his date of retirement eligibility. Pl.'s Ex., Tab 12; Tr. Day 1, Lt. Burks at 24-25.

17. In response to cross examination, Lt. Burks acknowledged that she would not want to be changing supervisors every six months for the canine unit. Tr. Day 1, Lt. Burks at 40 ("Q. Well, operationally would you want to be changing supervisors every six months or a year for that type of a unit? A. Would I want to? No. But did I consider that at that time? No."). However, she did not consider seniority or age in her evaluations of the candidates. Id. at 41. (Seniority "[w]asn't a consideration of mine. I wasn't concerned with how old anybody was or how much time that they had in grade. They all met the minimum qualifications to qualify for that position, that's why I was given those twelve names.").

18. Lt. Burks testified that she did not recommend Sgt. McNally because: (1) he had been abrasive and had a foul mouth when he conducted roll calls; (2) he would wear his protective vest on the outside of his uniform, contrary to USPP General Orders; and (3) he was negligent when he shot his own dog when he was cleaning his gun. Tr. Day 1, Lt. Burks at 52 ("[H]is roll call that he gave to us as officers he was very abrasive, very foul mouth [sic]. I didn't think he was a good leader example with those things."); id. ("I knew there were instances that he was out patrolling in his Class A uniform and he would wear his vest on the outside of his uniform and it had a black vest cover on it and this was talked about. It was a clear violation of our general orders. . . . You have to have your badge showing, your name tag."); id. ("There was an instance where he had a negligent shooting and he shot his own dog and he said it was, it was while he was cleaning his gun, that he had to fire five more rounds into the dog to put it down. This was talked about and joked about.").

19. Lt. Burks submitted a recommendation list to Capt. Lynch (Caucasian male, born 1953), who relied on her recommendation for "the bulk of" his further recommendation. He testified:

I relied on Lieutenant Burks for the bulk of the recommendation. However, I did look at [Sgt. Lopez's] application and I knew a little bit about her background and again, I was looking for someone who dealt well with the public, who did community relations type of work.

And from my experience having been in that position, we were doing a lot of what we called dog and pony shifts. In other words, we would get requests from the community to go out to a school, community group, do a presentation for the public. So these officers and supervisors were representing the U.S. Park Police, the National Park Service in the Department of Interior.

I knew a little bit about Sergeant Lopez' background that she was a DARE instructor, she also did community relations work in New York, and she was on a board of review for candidates for the position for the U.S. Park Police that I was the supervisor of. So I knew that she dealt well with the public.

And again, the other two officers, sergeants that were on the list[,] Sergeant Fear was also a DARE officer. He had experience in dealing with the public, so it was those type of qualifications that I was looking for.

Tr. Day 1, Capt. Lynch at 86-87.

20. Capt. Lynch looked only briefly at the list of candidates on the certificate of eligibles and only seriously looked at the applications of the individuals Lt. Burks had recommended. Id. at 87. He was looking particularly at the "community relations aspect," and Capt. Lynch did not think that Sgt. McNally had those qualifications because of a history of "complaints from citizens because they didn't like the way they were treated whether it was in an enforcement context or some other type of context, it was job related." Id. at 90.

21. Capt. Lynch agreed with Lt. Burks's recommendation and, in turn, recommended to Deputy Chief Edward Winkel (Caucasian male, born 1949) that Sgt. Lopez be appointed. Tr. Day 1, Dep. Ch. Winkel at 92-93. Deputy Chief Winkel was deputy chief of the services division and commander of the operations division at that time. Id. Deputy Chief Winkel did not review all the applications but looked quickly at the top three individuals who were recommended. Id. ("I looked quickly at the applications of the top three individuals that were ultimately recommended.").

22. Deputy Chief Winkel had no problems with the three top names on the list, nor with the recommendation of Sgt. Lopez, because "I knew that the number one individual on that list was a rising star on the Park Police. Had a good work record, had a good history, presented good credentials. I also took into account the recommendations of the lieutenant and the captain. I relied heavily on my staff . . . ." Id. at 99.

23. Deputy Chief Winkel "wanted an individual who used good judgment, who was responsible, who was not a disciplinary problem, who did not have an attitude problem with regards to management, was willing to support management in its endeavors." Id. at 103.

24. These criteria did not apply to Sgt. McNally. "There were times when over the years, I've known Sergeant McNally for a lot of years, that Sergeant McNally did not always support management in its decisions and did not have a lot of good things to say about management frequently." Id. at 104. Deputy Chief Winkel was concerned about Sgt. McNally's judgment, including incidents involving the shooting of his dog and leaving a loaded weapon exposed in his home with small children. Id. at 100-101.

25. Reliance on the candidates' reputations for job selection did not comport with a 1993 reassignment and placement memorandum published by the USPP or the Department of the Interior's policy on promotion or internal placement. See Pl.'s Ex., Tab 13, Mem. dated Aug. 10, 1993.

26. Lt. Burks and Sgt. Lopez are gay females and would infrequently socialize at area gay bars before 1996, at which time Sgt. Lopez was assigned to the New York Field Office of the USPP and moved out of the D.C. area. There was, however, no professional or personal interaction between them in the years 1996 - 2000. Tr. Day 1, Sgt. Lopez, 116-119.

27. Robert E. Langston (Caucasian male, born 1941) was the Chief of Police for the USPP from 1991 to 2001, when he retired. He was the official who approved the 2000 recommendation that Sgt. Lopez be re-assigned to the Line Dog vacancy. Tr. Day 2, Chief Langston at 182-83.

28. Chief Langston testified that Sgt. McNally was a "good police officer. As a supervisor and as a person, [however], I was a little uncomfortable with some of his style of dealing with people." Id. at 189. Because of comments Chief Langston had heard about Sgt. McNally, he did not have a "trust factor" with Sgt. McNally. Id. at 190.

29. Chief Langston would have inquired why none of the sergeant candidates who was over 40 had made it on to the list of recommended candidates if he ...


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