Cuddy v. Carmen, Civ. A. No. 79-1249.

• Decision Date: 06 February 1984
• Docket Number: Civ. A. No. 79-1249.
• Parties: William H. CUDDY, Plaintiff, v. Gerald P. CARMEN, Administrator, General Services Administration, Defendant.
• Court: U.S. District Court — District of Columbia

580 F. Supp. 788

William H. CUDDY, Plaintiff, v. Gerald P. CARMEN, Administrator, General Services Administration, Defendant.

Civ. A. No. 79-1249.

United States District Court, District of Columbia.

February 6, 1984.

William H. Cuddy, pro se.

Asst. U.S. Atty., Diane Sullivan, Washington, D.C., for defendant.

MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW

JOHN GARRETT PENN, District Judge.

The plaintiff charged the defendant with discriminating against him because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. He alleges that he applied for the position of Communications Specialist, GS-395-13 pursuant to a vacancy announcement and that the defendant refused to hire him because of his age. Robert A. Daley, who was 37 at the time, was selected for the position.

I

The case was originally scheduled for trial in January 1981. Plaintiff requested a trial by jury, however, the defendant opposed that request contending that the plaintiff was not entitled to a jury trial under the ADEA. The Court overruled the defendant's objection to a jury trial based upon the decision in Nakshian v. Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59 (1980). The trial commenced on January 26, 1981. At the conclusion of the trial, the Court instructed the jury that the plaintiff had the burden of proof and was required to establish, by a preponderance of the evidence, that age was "the determining factor" in his non-selection. The jury began their deliberations at approximately 9:45 a.m. on January 29, 1981 and at 10:10 a.m., the jury returned with a verdict for the defendant. The plaintiff appealed. The Court of Appeals reversed noting that, subsequent to the jury trial in this case, the Supreme Court had ruled in Lehman v. Nakshian, 453 U.S. 156, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981), that, in ADEA actions brought against federal agencies a plaintiff is not entitled to a jury trial. Cuddy v. Carmen, 224 U.S.App.D.C. 287, 694 F.2d 853 (1982). The Court of Appeals also concluded that this Court erred in instructing the jury that the plaintiff was required to establish that age was "the determining factor". Id. The appellate court ruled that the proper instruction was that age was "a determining factor". Id. The decision was reversed and remanded.

On remand to this court, the parties made no request to submit additional evidence. It was agreed that they would rely upon the record established at the earlier trial and that they would be given an opportunity to submit proposed findings of fact and conclusions of law. Their proposed findings and conclusions were to be submitted in December 1983. Each side has now submitted proposed findings and conclusions and the matter is ripe for decision by this Court.

II

After giving careful consideration to the arguments of the parties and the record in this case, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff is a member of a class, age 64, protected by the ADEA.

2. In anticipation of retirement from the Southern New England Telephone Company, plaintiff filed an application for a position with the Federal Government in 1966. He kept his application current through 1974.

3. In 1975, plaintiff's name was placed on a Civil Service Commission (CSC) Certificate of Eligibles for a GS-13 Communications Specialist position.

4. In February 1975, a GS-13 Communications Specialist position was advertised in the Automated Data and Telecommunications Service (ADTS), Voice Operations Branch (VOB), General Services Administration (GSA).

5. On February 20, 1975, Robert D. Schoenfelder, a GSA Personnel Management Specialist, requested a Certificate of Eligibles from CSC.

6. Sometime in February 1975, plaintiff visited Mr. Schoenfelder, who explained to him the CSC certification process for individuals applying for positions from outside the government.

7. In March 1975, CSC issued a Certificate of Eligibles bearing names of candidates, including that of Cuddy.

8. Mr. Schoenfelder sent a Notice of Availability to the six CSC candidates whose names appeared on the Certificate. Two candidates declined consideration for the position, and one candidate failed to respond to the notice.

9. On April 2, 1975, plaintiff returned his response to the Notice of Availability in person to Mr. Schoenfelder.

10. Mr. Schoenfelder was to have returned the Certificate of Eligibles to CSC by April 21, 1975. However, he kept it; and at CSC's request, he returned the Certificate on May 20, 1975. Mr. Schoenfelder retained a copy of the Certificate for "possible later reactivation."

11. On May 11, 1975, plaintiff met with Albert Treichel, the selecting official, and told Treichel that his name was on the Certificate of Eligibles. Plaintiff also discussed his employment background with Treichel. At that time, also, and in response to plaintiff's question, Treichel told plaintiff that a selection would be made around June 11, 1975.

12. As stated earlier, on May 20, 1975, Mr. Schoenfelder returned the Certificate of Eligibles to CSC. Next to the names of plaintiff and the two remaining candidates were the letters "NS," denoting their nonselection for the position.

13. On that same date, the GSA's merit promotion panel met to consider the federal applicants for the Communications Specialist position.

14. On May 22, 1975, the selection panel referred the names of the highest and best qualified federal applicants to the selecting official.

15. On June 5, 1975, Treichel selected Robert Daley, age 37, for the position. Treichel does not recall seeing the CSC Certificate of Eligibles at the time he made the selection, although Mr. Schoenfelder states that he sent the Certificate to Treichel.

16. Based on the prior May meeting, Mr. Treichel was aware of plaintiff's age and background in the telecommunications field. Treichel also knew Robert Daley and his work in the field of telecommunications.

17. In 1975, Albert Treichel was the Chief, VOB, ADTS, GSA. At that time, an improvement to the government telecommunications system was underway, whereby federal facilities would gain the capability of moving directly from the dedicated to the commercial network. This project was known as the "10/7 conversion," i.e. eliminating the 10-digit dialing system and establishing the 7-digit system.

18. The "10/7 conversion" took place over the 1975 Thanksgiving holiday. It consisted of the transfer of 55 major switches and 2000 subsidiary switches. Over 100 federal agencies and one million telephones were involved.

19. In late February 1975, Robert Daley was appointed project manager for the conversion. At the time of his selection for the GS-13 Communications Specialist position, he was working full-time on the conversion project. He was already a grade GS-13, having been promoted in April 1974. Prior to his joining the federal workforce, Mr. Daley worked for 15 years with C & P Telephone Company, first in cable construction and maintenance, and lastly in switching system.

20. William Cuddy's career spanned 42 years, including 4 years as a Signal Officer in the Southern Pacific Theatre during World War II. During his 38 years with Southern New England Telephone Company, plaintiff spent 25 years as a first-line supervisor in plan assignments and operations in one Connecticut district, i.e. Norwalk. In the Bell hierarchy in Connecticut, plaintiff was, in fact, a foreman, with many supervisory and functional levels above him.

21. Treichel did not select Cuddy for the GS-13 Communications Specialist position because his experience was not oriented towards the work of the VOB and because he felt that it would have been necessary to provide a considerable amount of training for an individual with Cuddy's experience. In essence, Treichel concluded that Mr. Cuddy was unfamiliar with the specialized nature and function of the government's telecommunications system.

22. The reason for the plaintiff's nonselection had nothing to do with his age.

23. Plaintiff has exhausted his administrative remedies.

CONCLUSIONS OF LAW

1. Jurisdiction of this Court over the present matter is founded upon the ADEA.

2. To make out a prima facie case of age discrimination, a plaintiff must show facts sufficient to create a reasonable inference that age was "a determining factor" in the employment decision. See, Coburn v. Pan American World Airways, Inc., U.S.App.D.C., 711 F.2d 339, 342-345 (1983), Cuddy v. Carmen, supra, 224 U.S. App.D.C. at 290-294, 694 F.2d at 856-860; Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1112 (4th Cir.1981); Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 12 (2d Cir.1981); Smithers v. Bailar, 629 F.2d 892, 897 (3d Cir.1980); Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979).

3. In interpreting the standard of "a determining factor," the courts have explained that it means that consideration of an impermissible criterion made a difference toward causing the adverse employment decision to occur. Id.

4. In order to establish a prima facie case, or, in other words, to create a reasonable inference of discrimination, the plaintiff must show that he: (1) belongs to the protected class (age 40-70); (2) was qualified for the position; (3) was not hired; and (4) was disadvantaged in favor of a younger person. See, Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir.1981); Loeb v. Textron, Inc., supra. If the plaintiff succeeds in proving a prima facie case, the employer has the burden of producing evidence to demonstrate that the applicant was denied employment for legitimate, nondiscriminatory reasons. See, Sutton v. Atlantic Richfield Co., supra; Loeb v. Textron, Inc., supra. If the employer does so, and if its evidence is credible, the plaintiff must show by a preponderance of the evidence that the employer's reason is a pretext. See, e.g. Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1196...