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Simpson v. Leavitt

June 3, 2008

W. JEAN SIMPSON, PLAINTIFF,
v.
MICHAEL O. LEAVITT, SECRETARY, DEP'T OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This matter came before the Court for a three day bench trial on plaintiff Jean Simpson's claim that she was discriminated against by her employer, the Department of Health and Human Services, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq., when she was not selected for the GS-14 position of Head Start Program Analyst Officer (Branch Chief) in the Program Management and Operations Branch of the Program Management Division in the Head Start Bureau in the Fall of 2001. The Court previously granted defendant's motion for summary judgment on plaintiff's race discrimination claim under Title VII of the Civil Rights Act of 1964. See Simpson v. Leavitt, 437 F. Supp. 2d 95 (D.D.C. 2006).

I. FINDINGS OF FACT

Upon a careful consideration and evaluation of the testimony of all the witnesses and the documentary evidence admitted at trial, and making credibility findings as necessary and appropriate to resolve any material discrepancies in the testimony, the Court makes the following findings of fact.

Head Start is a complex child development program. The goal of the program is school readiness, ensuring that children from low income families are ready for a successful transition to kindergarten and beyond. There are approximately 900,000 children enrolled in the Head Start program. See Trial Transcript ("Tr."), Volume II ("II") at 55-56 (Bovell testim.); Transcript of Douglas Klafehn ("Klafehn Tr.") at 15.*fn1 The Head Start Bureau is divided into three divisions: the Program Operations Division, the Program Support Division, and the Program Management Division. The Program Management Division contains two branches: the Program Management and Operations Branch, and the Training and Technical Assistance Branch. The program analyst officer position at issue in this case "was, in effect, the branch chief for the Program Management and Operations Branch" of the Program Management Division. See Klafehn Tr. at 9; Plaintiff's Exhibit ("PX") 2.

Plaintiff Dr. Jean Simpson, who was born on May 15, 1942, is a GS-13 Education Specialist in the Education Services Branch of the Program Support Division of Head Start. She has held this position from 1993 to the present day. See PX 2; Tr., Volume I ("I") at 18, 25-26 (Simpson testim.). Dr. Simpson holds a Bachelor's Degree in Early Childhood Education, a Master's Degree in Human Learning and Development, and a Ph.D. in Human Growth and Development. The Education Services Branch, in which Dr. Simpson works, manages grants and contracts for services, such as training Head Start directors and the Child Development Associate Credential. See Tr.II at 59 (Bovell testim.).

The Program Management and Operations Branch is responsible for developing and interpreting policies and regulations. The branch also has total responsibility for the tri-annual monitoring reviews of Head Start grantee programs, which includes the creation or revision of the monitoring instrument, training peer reviewers, training consultants, training federal staff nationally, and training team leaders to implement the monitoring. The branch analyzes the data collected from the monitoring reviews to determine how Head Start programs are performing, and prepares an annual report to Congress on program monitoring. See Klafehn Tr. at 19-20; Tr.II at 61, 73 (Bovell testim.). The current monitoring instrument is the Program Review Instrument for Systems Monitoring ("PRISM"), which outlines all of the policies and regulations governing the Head Start program. It contains specific questions addressing Head Start policies and regulations, and the reviewers use the instrument as guidance in conducting their reviews. See Tr.II at 61-62 (Bovell testim.).

Douglas Klafehn, the selecting official, was born on April 9, 1943. For approximately fifteen years, he was the Deputy Associate Commissioner of the Head Start Bureau. See PX 21 at 1; Klafehn Tr. at 10, 17. Dr. Carmen Bovell, the recommending official, was born on April 22, 1945. See Klafehn Tr. at 10; Tr.II at 49 (Bovell testim.); PX 21 at 1. In December 2000, Mr. Klafehn hired Dr. Bovell to be the GS-15 level Director of the Program Management Division. In that position, Dr. Bovell supervised the chief of the Training and Technical Assistance Branch and the chief of the Program Management and Operations Branch. See Tr.II at 50, 52 (Bovell testim.). Prior to joining the Office of Head Start (formerly the Head Start Bureau), Dr. Bovell was a Head Start director for approximately 20 years: in the Prince George's County Public Schools, the Fairfax County Public Schools, and for the Arlington County Community Action Program. See id. at 53-57.

From 1996 to 1997, Dr. Bovell was a Head Start Fellow. See Tr.II at 54 (Bovell testim.). "The Fellows are energetic professionals who serve as apprentices in the areas of program development, research, child development, health, family development, and policy." See PX 20. Although "all Head Start Fellows are expected to return to their community," there is no prohibition on the Fellows being hired by the Head Start Bureau instead. See Tr.II at 54 (Bovell testim.); PX 20; Klafehn Tr. 51-52. Dr. Bovell first met Dr. Simpson in 1996, when Dr. Bovell came to the Head Start Bureau as a Head Start Fellow. Dr. Bovell described her relationship with Dr. Simpson as "cordial." See Tr.II at 58-60 (Bovell testim.).

In the Fall of 2001, HHS issued Job Opportunity Announcement ACF-01-212 which indicated that applications were being accepted from September 28, 2001 to October 26, 2001 for a Head Start Program Analyst Officer Position GS-343-14. See PX 10. The position was for the Branch Chief of the Program Management and Operations Branch, which organizationally is located in the Program Management Division. See Tr.II at 63 (Bovell testim.); PX 2. In consultation with Mr. Klafehn, Dr. Bovell revised the Duties and Responsibilities description and the Ranking Factors of the Job Opportunity Announcement, and she updated the Introduction and the Major Duties and Responsibilities of the Position Description. See Tr.II at 63-65 (Bovell testim.); PX 10; DX 3.

Dr. Bovell testified that she sought an applicant who had the following skill set:

(1) the ability to organize and supervise the work of the Branch; to manage staff, meaning to direct, supervise, and evaluate Branch staff; (2) the ability to analyze national monitoring data; (3) the ability to write reports; (4) the ability to provide leadership and guidance to the entire monitoring process, which includes the training of federal team leaders, developing monitoring documents, and revising the monitoring instrument; (5) the ability to write and supervise the development of policies and regulations; and (6) the ability to support regional office staff in all ten regions, as well as the American Indian/Alaskan Native Branch and the Migrant and Seasonal Program Branch. See Tr.II at 66 (Bovell testim.); see also PX1; PX 3.

After all of the applications were submitted, Dr. Simpson, along with Amanda Bryans (the eventual selectee) and Kevin Costigan, were placed on the Selection Certificate; that is, a list of the three finalists for the position. See Klafehn Tr. at 31-32; PX 13. As noted, Dr. Simpson was born on May 15, 1942. Ms. Bryans was born on November 7, 1965. See PX 13. Mr. Costigan was born on July 19, 1949. See Defendant's Motion for Summary Judgment at 3. Dr. Bovell received the three application packages from the Program Support Center. She testified that she did not play any role in determining whether the application packages were complete. See Tr.II at 67 (Bovell testim.). Dr. Bovell read each application, looking specifically at the Knowledge and Abilities that pertained to the Ranking Factors, and the experiences of the applicants and how they related to the Duties and Responsibilities of the position at issue. See id. at 68.

As discussed below, Dr. Bovell ultimately recommended that Ms. Bryans be selected for the position at issue. See Tr.II at 77-78 (Bovell testim.). Douglas Klafehn agreed with Dr. Bovell's recommendation and selected Ms. Bryans for the position.

Mr. Joe Gulli, who was assigned to personnel matters in the administrative office of Administration on Children, Youth and Families, informed Dr. Bovell that interviews of the candidates were not required. See Tr.II at 65, 68 (Bovell testim.); Tr. Volume III ("III") at 26-27 (Bovell testim.). Moreover, Dr. Bovell knew Kevin Costigan and Amanda Bryans because they worked in the Program Management and Operations Branch. Dr. Bovell, as Ms. Bryans's second-line supervisor, signed Ms. Bryans's most recent performance appraisal, in which she was rated Outstanding. ...


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