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Beard v. Preston

September 18, 2008


The opinion of the court was delivered by: Gladys Kessler United States District Judge


Plaintiff, D. Michael Beard, a 56-year-old male, brings this action against Defendant Steve Preston,*fn1 Secretary of Housing and Urban Development. He alleges employment discrimination based on age and retaliation against him for a protected activity, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 633a. This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 13]. Upon consideration of the Motion, Opposition, Reply, Surreply, and the entire record herein, and for the reasons stated below, Defendant's Motion for Summary Judgment is denied in part and granted in part.


A. Facts*fn2

Plaintiff D. Michael Beard, a 56-year-old man, has been employed by the United States Department of Housing and Urban Development's ("HUD") Office of Inspector General ("OIG") since 1989, and has worked in a supervisory capacity for the federal government since 1982. He has held various positions with HUD, most recently serving as Special Assistant to the Deputy Assistant Inspector General in OIG Headquarters in Washington, D.C. He served as Regional Inspector General for Audit ("RIGA") in OIG Region VI, based in Fort Worth, Texas,*fn3 for thirteen years prior to his transfer to the Special Assistant position in Washington, D.C. Plaintiff characterizes the Special Assistant position as "nonsupervisory," "superfluous," and not "commensurate with his GS-15 grade level." Plaintiff's claims arise out of his transfer and out of HUD's alleged interference with his selection for a Senior Executive Service position in the Department of Defense's Office of Inspector General.

Plaintiff alleges that his January 2005 transfer to HUD OIG's Washington, D.C. office was a retaliatory act by his superiors for unfavorable deposition testimony he had provided in 2001 in connection with a discrimination complaint brought against OIG by a Region VI employee. That employee, Robert Tighe, had brought suit against HUD OIG claiming that he was not selected for a promotion because of his race. In his July 2001 deposition, Plaintiff testified that OIG senior management was hiring minorities and females in violation of Equal Employment Opportunity ("EEO") policies. He specifically identified Susan Gaffney, the former Inspector General, and Kathy Kuh-Inclan, the former Assistant Inspector General for Audit, as the responsible management officials.

In June 2001, Ms. Gaffney was replaced by James A. Heist (born 1954), who became the Acting Deputy Inspector General for HUD for approximately two months. During this time, Mr. Heist learned of the existence of Mr. Tighe's EEO complaint and learned that Plaintiff had given a deposition in the case. According to Defendant, Mr. Heist "had no knowledge . . . one way or another" if Plaintiff's testimony was favorable or unfavorable to Mr. Tighe. Def.'s Mot. for Summ. J. at 3 ("Mot."). The parties agree that Mr. Heist was not a party to Mr. Tighe's administrative action and never discussed Plaintiff's testimony with the Inspector General or senior members of his staff.

In 2001, Mr. Heist made Michael Phelps (born 1945) the first-line supervisor for all of the RIGAs, including Plaintiff. In February 2002, Mr. Phelps gave Plaintiff a reprimand "[f]or not referring potential criminal matters to the office of investigation" in Region VI, and appended an attachment to his performance evaluation*fn4 which was critical of his performance. Mot. at 3-4. At the same time, Mr. Phelps verbally told Plaintiff that he was difficult to manage and chastised him for failing to follow HUD policy, providing Plaintiff three specific instances of such failure. In March 2002, Defendant provided Plaintiff with a memorandum detailing management's concern that Plaintiff was espousing negative views of headquarters to his staff and "poisoning their views of the organization." Def.'s Statement of Facts ¶ 12.

In March 2002, Kenneth Donahue became the new Inspector General at HUD OIG. Both parties agree that, as a result, the management style of the organization changed dramatically. While Ms. Gaffney was Inspector General, Plaintiff had a significant amount of autonomy to manage Region VI, whereas Inspector General Donohue insisted upon adherence "to the chain of command, and he announced that empowerment was over." Def.'s Statement of Facts ¶ 23.

In other words, RIGAs would need to have more of their actions approved by HUD headquarters, and all audit decisions would need to be routed through a new directorate called Technical Oversight and Planning ("TOP"). TOP was responsible for overseeing the work of the ten regional offices, reviewing drafts and reports, and providing comments on those reports to the Assistant Inspector General for Audit, Mr. Heist. Mr. Heist then would pass TOP's comments on to the regional offices. According to Plaintiff, in addition to passing comments on to Mr. Heist, TOP also engaged in a deliberative process directly with the regions in which TOP's proposed changes were discussed. Plaintiff and, he alleges, many other RIGAs, preferred the decentralized system that had been in place under Inspector General Gaffney.

Defendant asserts that due to the implementation of this decentralized system, Plaintiff developed a negative attitude towards Headquarters, and that this attitude negatively impacted the Region VI staff. See Def.'s Statement of Facts ¶¶ 35-37. According to Defendant, Region VI displayed an argumentative attitude toward both OIG management and TOP staff, ultimately leading management to conclude that Plaintiff "could not adjust to the centralized management style." Id.

In May 2002, Plaintiff filed an administrative complaint of discrimination and retaliation against Mr. Heist, Mr. Phelps, and General Counsel Bryan Saddler. On December 4, 2002, the parties reached a Mediation Settlement Agreement resolving Plaintiff's administrative complaint. Mr. Michael Stephens, the management representative for the Agreement, indicated to Plaintiff that the motivation in settling the complaint was to "start anew." Def.'s Statement of Facts ¶ 17.

From 2003 to 2004, Plaintiff did not file any administrative complaints or otherwise engage in any protected activity. However, Plaintiff contends that he continued to be subjected to reprisals during that time period, including an unfairly low ranking of his region and interference with several of his region's audits. Plaintiff represents that he refrained from filing an EEO complaint over these actions in part because of assurances from Mr. Stephens that Plaintiff's job "was safe," and in part out of fear of further reprisals. Beard Decl. ¶¶ 40-41. Both sides agree that after the resolution of Plaintiff's 2002 complaint, he did not engage in any additional protected activity until January 21, 2005, when he initiated the informal administrative EEO complaint process underlying this lawsuit.

In January 2005, Plaintiff was instructed to report to Headquarters in Washington, D.C. for a meeting with management. At that meeting, management informed him, for the first time, of his reassignment to Headquarters and the reasons for that decision. According to Defendant, Plaintiff's inability to adjust to a centralized management style, as well as material deficiencies in his work product (including problems with a Community Planning & Development ("CPD") draft audit, the Jazzland audit, and a CVR Associates audit)*fn5, ultimately caused management to involuntarily reassign him to a non-supervisory position at Headquarters, namely Special Assistant to the Deputy Assistant Inspector General for Audit. Id. ¶¶ 37-38. Plaintiff alleges that Mr. Heist conceded in his deposition that the reassignment and relocation were not performance-based. Pl.'s Opp. at 2. Plaintiff also asserts that in his last appraisal (for the period ending January 31, 2004), he received a successful rating on a pass/fail scale. Plaintiff was replaced as RIGA of Region VI by Frank Baca, who, like Plaintiff, was born in 1949. According to Defendant, the problems concerning that Region's work product and attitude toward headquarters did not persist under Mr. Baca's leadership.

In January 2005, Plaintiff applied for the position of Director, Readiness and Logistics Support,*fn6 for the Department of Defense ("DOD") OIG. The DOD contacted Mr. Phelps and asked his views of Plaintiff as an employee. According to Defendant, Mr. Phelps told the DOD many positive things about Plaintiff,*fn7 but also stated that Plaintiff "could not get in step with that new direction [toward centralized management], which is why it was necessary to bring [Plaintiff] to Headquarters as opposed to allowing him to continue to run a region." Id. ΒΆΒΆ 45-46. On April 11, 2005, a DOD representative contacted ...

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