762 F.2d 119 (D.C. Cir. 1985), 84-5132, Cuddy v. Carmen

Docket Nº:84-5132.
Citation:762 F.2d 119
Party Name:William H. CUDDY, Appellant, v. Gerald P. CARMEN, Administrator, General Services Administration.
Case Date:May 21, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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762 F.2d 119 (D.C. Cir. 1985)

William H. CUDDY, Appellant,


Gerald P. CARMEN, Administrator, General Services Administration.

No. 84-5132.

United States Court of Appeals, District of Columbia Circuit

May 21, 1985

Argued Feb. 26, 1985.

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William H. Cuddy, pro se.

Diane M. Sullivan, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Royce C. Lamberth, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before ROBINSON, Chief Judge, and WRIGHT and WALD, Circuit Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

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J. SKELLY WRIGHT, Circuit Judge:

William H. Cuddy, the appellant here, sued the General Services Administration (GSA), alleging that its failure to hire him resulted from age discrimination in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. (1982). In the original District Court proceeding a jury rendered judgment for GSA. Cuddy then appealed. This court vacated the verdict, holding that a jury trial was improper in an ADEA action against the federal government and clarifying the standard for liability in ADEA actions. See Cuddy v. Carmen, 694 F.2d 853 (D.C.Cir.1982). We remanded the case to the District Court for additional proceedings--specifically the entry of findings of fact and conclusions of law by the District Court itself. On remand the District Court, relying entirely on the original trial evidence, again held for GSA. Cuddy now appeals for the second time.

The sole issue on this appeal is whether the District Court's findings of fact and overall finding that GSA did not discriminate against Cuddy on the basis of his age are clearly erroneous. If they are clearly erroneous, this court must reverse. In this case, however, although the evidence supporting the District Court's subsidiary and ultimate factual findings leaves much to be desired, we conclude that the critical findings are not clearly erroneous. Consequently, we affirm the judgment of the District Court.


Cuddy was employed for many years by a private telephone company in Connecticut. In the mid-1960's, anticipating his mandatory retirement some years later (at age 65 in 1976), he filed an employment application with the federal government. In 1966 he was certified by the Civil Service Commission (CSC) for government employment in a GS-13 (senior level) communications specialist position. Having been certified for government employment, he maintained his eligibility over the following years. During those years he also applied (unsuccessfully) for advertised government jobs when he was eligible to fill them. 2

In 1975 Cuddy remained eligible for GS-13 positions. In February of that year the Voice Operations Branch (VOB) of the Automated Data and Telecommunication Service (ADTS) of GSA advertised a GS-13 communications specialist position for which Cuddy was qualified. Having learned of this advertisement, Cuddy diligently attempted to ensure that he would be considered for the position. First, he completed the necessary official tasks. (For example, he returned the certification, indicating his continued interest in the position.) This ensured that he would be included on the CSC certificate of non-government employees who were eligible for the position, which was sent to the GSA selecting official. In addition, Cuddy visited Robert Schoenfelder, the GSA personnel employee in charge of handling Civil Service Commission candidates, and Albert Treichel, the GSA supervisor who would actually select the candidate to fill the position. The purpose of these visits was apparently to acquaint the GSA officials with his interest in and his qualifications for the job and to make sure that his application did not fall through any bureaucratic cracks. In spite of his perseverance, however,

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Cuddy was not selected for the job. Instead, a GSA employee, Robert Daley (aged 37) was selected.

After exhausting his administrative remedies, Cuddy brought suit against GSA in the District Court, asserting that GSA's failure to hire him had been motivated by discrimination against him due to his age. Following the presentation of Cuddy's case-in-chief, the District Court, applying the three-part evidentiary structure of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), ruled that Cuddy had established a prima facie case of age discrimination and denied GSA's motion for a directed verdict. See Transcript of Trial Proceedings (Tr.) at 146. The introduction of evidence by GSA and of rebuttal evidence by Cuddy then proceeded, and the case finally went to a jury. In instructing the jury, the District Court stated that the jury was to return a verdict for the plaintiff only if it found that age was the determining factor in GSA's decision not to hire Cuddy for the position. See Cuddy, supra, 694 F.2d at 855-856. The jury returned a verdict for GSA, and Cuddy appealed.

On appeal, we vacated the jury verdict and remanded the case to the District Court. We noted that a jury trial was inappropriate in an ADEA case against a federal government defendant. See id. at 859. Consequently, we remanded to the District Court for that court to make findings of fact and conclusions of law. See id. at 860. We also noted that the proper standard for liability under the ADEA was that age be a determining factor in the employment decision; it need not be the determining factor in the decision. See id. at 857-858 n. 22.

On remand, the District Court entered findings of fact and conclusions of law in accordance with our instructions. Based on its findings, the District Court again entered judgment in favor of GSA. See Cuddy v. Carmen, 580 F.Supp. 788 (D.D.C.1984). Cuddy now appeals that judgment to this court, contending that the District Court's findings were clearly erroneous.


It is well established in this circuit that we will apply to ADEA cases the scheme for allocating evidentiary burdens that has evolved in the context of Title VII discrimination cases. See, e.g., Krodel v. Young, 748 F.2d 701, 705 (D.C.Cir.1984) (citing cases); Cuddy, supra, 694 F.2d at 856-857. This scheme allocates the burden of presenting the relevant evidence between the plaintiff and the defendant. First, the plaintiff must present a prima facie case of discrimination. In failure-to-hire or failure-to-promote cases, this consists of a showing that (1) the plaintiff belongs to the group protected by the relevant statute (here the group of persons between the ages of 40 and 70); (2) the plaintiff was qualified for the position in question; (3) the plaintiff was not hired/promoted; and (4) a person not of the protected group was selected (here a person below the age of 40). See Krodel, supra, 748 F.2d at 706. 3

Once the plaintiff has presented this prima facie case, the burden shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, supra, 411 U.S. at 802, 93 S.Ct. at 1824. This requirement imposes upon the defendant the burden of producing evidence "that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, supra, 450 U.S. at 254, 101 S.Ct. at 1094.

Although this evidence must be "legally sufficient to justify a judgment for the defendant," id. at 255, 101 S.Ct. at 1094, it is merely one of production, not one

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of persuasion. See Sweeney v. Board of Trustees of Keene State College, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978) (per curiam); Krodel, supra, 748 F.2d at 705; Loeb v. Textron, Inc., 600 F.2d 1003, 1011-1012 (1st Cir.1979). If the defendant fails to meet this burden, however, the plaintiff must prevail if he or she has made out a proper prima facie case and the District Court believes the plaintiff's evidence. See Burdine, supra, 450 U.S. at 254, 101 S.Ct. at 1094. See also Cuddy, supra, 694 F.2d at 857 n. 21; Nanty v. Barrows Co., 660 F.2d 1327, 1331-1332 (9th Cir.1981). The purpose of placing this burden on the defendant is "simultaneously to meet the plaintiff's prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." Burdine, supra, 450 U.S. at 255-256, 101 S.Ct. at 1094-1095.

If the defendant carries its burden of production, the plaintiff must then carry his or her overall burden of persuasion in order to prevail. The plaintiff may carry this burden either indirectly by showing that the reason proffered by the defendant was in fact a pretext or directly by showing that it was more likely than not that the defendant was actually motivated by discrimination. See id. at 256, 101 S.Ct. at 1095. If the plaintiff fails to carry this burden, the plaintiff will lose.

Underlying the three-part approach of McDonnell and Burdine, therefore, is the ultimate question of the case: whether the defendant illegally discriminated against the plaintiff. In ADEA cases this question takes the form of whether age was a determining factor in the disputed employment decision. See Krodel, supra, 748 F.2d at 706. And, as the Supreme Court has recently noted, courts must not become so enchanted with the structure of McDonnell-Burdine that they lose sight of this ultimate question:

The "factual inquiry" in a Title VII case is "[whether] the defendant intentionally discriminated against the plaintiff." * * * The prima facie case method established in McDonnell Douglas was "never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence...

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