Palmer v. U.S.

• Citation: 794 F.2d 534
• Decision Date: 18 July 1986
• Docket Number: No. 85-5526,85-5526
• Parties: 41 Fair Empl.Prac.Cas. 559, 41 Empl. Prac. Dec. P 36,430 Thomas Y. PALMER, Plaintiff-Appellant, v. The UNITED STATES of America; United States Department of Agriculture; John R. Block, Secretary of the United States Department of Agriculture; Charles W. Philpot; Johnathan C. Colville; Robert W. Harris; Craig C. Chandler; Charles Roberts; and Georgia Sherman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 534

794 F.2d 534

41 Fair Empl.Prac.Cas. 559,

41 Empl. Prac. Dec. P 36,430

Thomas Y. PALMER, Plaintiff-Appellant, v. The UNITED STATES of America; United States Department of

Agriculture; John R. Block, Secretary of the United States

Department of Agriculture; Charles W. Philpot; Johnathan

C. Colville; Robert W. Harris; Craig C. Chandler; Charles

Roberts; and Georgia Sherman, Defendants-Appellees.

No. 85-5526.

United States Court of Appeals, Ninth Circuit.

Argued Nov. 8, 1985.

Decided July 18, 1986.

John S. Adler, San Diego, Cal., for plaintiff-appellant.

Kathryn A. Snyder, Asst. U.S. Atty., San Diego, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before JAMES R. BROWNING, WIGGINS and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Appellant Thomas Y. Palmer ("Palmer") appeals the district court's grant of summary judgment in favor of appellees on Palmer's claim of discrimination under the Age Discrimination in Employment Act. We affirm.

I. FACTS

Palmer, now sixty-two years of age, was hired by the United States Forest Service in December 1967. He holds a masters degree in meteorology. He was initially employed by the Forest Service as a research meteorologist at a forest fire laboratory in Riverside, California (Government Service, level 14 (GS-14)). In December 1969, he was promoted to the position of supervisory research meteorologist (GS-15). Palmer served as the project leader and research meteorologist on "Project Flambeau," later renamed the mass fire systems project, a forest fire behavior research project based at the Riverside lab. A significant part of the project's funding was provided by the United States Department of Defense.

Dr. Charles Philpot, Assistant Director for Continuing Research in Southern California and Hawaii, was Palmer's immediate supervisor. In August 1975, Dr. Philpot recommended to his supervisor, Paul Guilkey, that the mass fire systems project be abolished. This recommendation had been under consideration by Dr. Philpot's predecessor. The Department of Defense stopped providing funds for the project in the late 1960's significantly reducing the scale of the project. The importance of the project also was reduced by the Forest Service. In April 1976 the project and Palmer's position were abolished.

Palmer was offered a research meteorologist position at the fire laboratory in Macon, Georgia (GS-14) in smoke management research. Palmer contends that the Palmer rejected the offer of research meteorologist at Macon, Georgia, for family health reasons. His employment with the Forest Service was terminated in April 1976. He was 51 years old.

position was created exclusively for him and was not filled either before or after it was offered to him. Palmer alleges that the job description was "beefed-up" for him, from grade 5 to grade 14. Appellees contend, however, that funds for this position had been available for several years and that position descriptions for research scientists are sometimes not written until a specific person is available to fill the position.

The Forest Service and the United States Department of Agriculture determined that Palmer had not been discriminated against on the basis of his age. After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Palmer brought this suit in district court claiming age discrimination in violation of the Age Discrimination in Employment Act (ADEA) (29 U.S.C. Sec. 633a) (1982). He requested back pay, damages and attorney's fees and costs.

On August 10, 1984, appellees moved for summary judgment. The district court granted the motion on January 10, 1985, finding that Palmer failed to make out a prima facie case of age discrimination.

II. ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo. Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983). The reviewing court must determine, viewing the evidence in the light most favorable to the opposing party, if there is any genuine issue of material fact and whether the law was correctly applied. Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984); Lojek, 716 F.2d at 677; Fed.R.Civ.P. 56(c).

Although summary procedures should be used prudently, "particularly in cases involving issues of motivation or intent" in ADEA claims, Douglas v. Anderson, 656 F.2d 528, 535 (9th Cir.1981), such relief may nonetheless be appropriate. See Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983).

B. Age Discrimination

1. Introduction

Appellant claimed he was discriminated against on the basis of his age in violation of 29 U.S.C. Sec. 633a, applicable exclusively to Federal employees, and which provides in part:

All personnel actions affecting employees or applicants for employment who are at least 40 years of age ... in executive agencies as defined in Section 105 of Title 5 ... shall be made free from any discrimination based on age.

The upper age limit under the ADEA is 70 years of age. 29 U.S.C. Sec. 631(a)(1982).

A plaintiff alleging discrimination under the ADEA may proceed under either of two theories: disparate treatment or disparate impact. Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1458 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986); Douglas v. Anderson, 656 F.2d at 531 & n. 1. Under the disparate treatment theory the employee must show discriminatory motive by the employer. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977); Am. Fed. of S., C., & Mun. Emp. v. State of Wash., 770 F.2d 1401, 1405 (9th Cir.1985) (the plaintiff "must show the employer chose the particular policy because of its effect on members of a protected class"). Discriminatory motive need not be shown under the disparate impact theory. Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. The requirements under this theory, however, may be more exacting. "A disparate impact plaintiff 'must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.' " Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 The criteria applied to a Title VII discrimination claim also apply to claims arising under the ADEA. Douglas v. Anderson, 656 F.2d at 531. See also Kelly v. American Standard, Inc., 640 F.2d 974, 984 (9th Cir.1981) (quoting Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir.1980)).

(9th Cir.1983) (quoting Johnson v. Uncle Ben's, Inc., 657 F.2d 750, 753 (5th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982)).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973), the Supreme Court allocated the burdens of proof for a Title VII claim. First, the plaintiff must establish a prima facie case of discrimination. When a motion for summary judgment is involved, a prima facie case refers to the plaintiff's burden of "producing enough evidence to permit the trier of fact to infer the fact at issue." See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207 (1981). Second, if the plaintiff can show a prima facie case the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer carries this burden the plaintiff has the opportunity to prove by a preponderance of the evidence that the employer's stated reason for plaintiff's rejection was in fact a pretext for discrimination, and not the true reason for his discharge. Id. at 804-05, 93 S.Ct. at 1825-26.

2. Disparate Treatment

An employee can establish a prima facie case of age discrimination under the disparate treatment theory by showing he: "(i) was a member of the protected class, (ii) was performing his job in a satisfactory manner, (iii) was discharged, and (iv) was replaced by a substantially younger employee with equal or inferior qualifications." ¹ Douglas v. Anderson, 656 F.2d at 533.

Here, Palmer proved that he was a member of the protected class and was discharged. Nothing indicates that Palmer's performance was unsatisfactory. Consequently, Palmer has satisfied three of the criteria necessary to establish a prima facie case of age discrimination.

Palmer was not, however, replaced by a substantially younger employee with equal or inferior qualifications. Palmer's position was abolished in April 1976 and he was not replaced. Palmer alleged that Andrew Stein performed some of the duties of Palmer's position following Palmer's discharge. Mr. Stein was 57 years old at the time--6 years older than Palmer. Replacement by an older employee suggests no discrimination, unless there is other direct or circumstantial evidence to support an inference of discrimination. See Loeb v. Textron, Inc., 600 F.2d 1003, 1013 n. 9 (1st Cir.1979). Palmer did not produce any evidence to support an inference of discrimination.

Here a reduction in work force occurred and Palmer was not replaced. The fact that Palmer was not replaced by a younger employee is not necessarily fatal to his claim. Haydon v. Rand Corp., 605 F.2d 453, 454 n. 1 (9th Cir.1979) (per curiam). Palmer argues that the Forest Service failed to follow applicable personnel regulations during the reduction in force at Riverside, and alleged that when he was informed his position would be abolished, Dr. Philpot told him that there were several names on the reduction in force list. The district court determined that this list was only a preliminary computer list. ² The final Palmer alleges that the Forest Service intentionally discriminated against him because the Macon position was specially created for him. Palmer contends that the Forest Service knew he would not be able to accept the Macon position because it...