Koger v. Reno

Decision Date25 October 1996
Docket NumberNo. 94-5207,94-5207
Citation98 F.3d 631,321 U.S. App. D.C. 182
Parties73 Fair Empl.Prac.Cas. (BNA) 1855, 69 Empl. Prac. Dec. P 44,439, 321 U.S.App.D.C. 182 Raymond KOGER, et al., Appellants, v. Janet RENO, United States Attorney General, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 91cv01058).

Alan G. Warner argued the cause and filed the briefs for appellants.

Keith V. Morgan, Assistant United States Attorney, argued the cause for appellee. Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the brief with him. John D. Bates, Washington, DC, entered an appearance.

Before: WALD, WILLIAMS and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILLIAMS.

STEPHEN F. WILLIAMS, Circuit Judge:

A class of older Deputy U.S. Marshals alleges age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623, 633a et seq. The class consists of deputies who, while they were GS-11 Criminal Investigators, were eligible and applied for positions as GS-12 Senior Criminal Investigators; who were at least 40 years old at the time of the disputed selections; and who were not selected for vacancies for which deputies under 40 were selected.

The district court rejected the plaintiffs' disparate impact claim on summary judgment, ruling that they failed to establish a prima facie case. It rejected their disparate treatment claim after a full trial, finding that the plaintiffs had failed to carry their burden of proof. We affirm.

* * *

The Marshals Service is part of the Department of Justice and its mission is "to provide for the security and to obey, execute, and enforce all orders of the United States District Courts, the United States Courts of Appeals and the Court of International Trade." 28 U.S.C. § 566 (1994). A deputy marshal can be called upon to perform a wide range of duties, including the protection of the federal judiciary, the transportation of federal prisoners, and the seizure of assets.

When the Service created the post of GS-12 Senior Criminal Investigator in 1987, it also devised a system for filling the positions, a system it has maintained, with modifications made in 1989 and 1990, through to the time of the district court's decision in 1994. Under this system, the positions are allocated among the judicial districts; typically only those deputies working in a particular district may apply for a promotion in that district.

Any applicant must have at least one year of experience at the GS-11 level. Each submits an "Application for Law Enforcement Positions," which includes information about the applicant in each of the first four of seven categories of information that will later be "scored," namely experience, education, training, and awards. The applicant also submits copies of his two most recent "Annual Performance Evaluations" and his physical fitness test results (the "FIT Assessment"). These all go to the applicant's supervisor, who adds a "Supervisory Promotion Evaluation."

Based upon the information in this package, the merit promotion staff at the Marshals Service headquarters scores most applications under the guidance of a confidential Rating Guide (the districts originally did the scoring and are still permitted to do so if they choose). The person scoring the package can award the applicant a maximum of 100 points, divided as follows:

                     Experience Section                           40 points
                     Training Section                             10 points
                     Awards Section                               10 points
                     Education                                    10 points
                     Annual Performance Evaluation                10 points
                     Physical Fitness (FIT Assessment)            10 points
                     Supervisory Evaluation                       10 points
                

The scores of all the applicants for a particular vacancy are recorded on a "Verification of Scores List," and the highest-scoring applicants are placed on a "Certification List." The marshal for the district filling its vacancy may request the selection of any deputy on the certification list. Starting in 1988, the marshal's recommendation was forwarded to the Career Development Board at the Service's headquarters, along with the verification list and the certification list. The Board usually selected the candidate recommended by the marshal; in the absence of a recommendation, it typically chose the highest-scoring applicant. More recently, the marshal's recommendation has been subject only to approval by the merit promotion staff, with the Associate Director of the Service resolving cases in which the staff raises an objection.

Although older deputies and younger (under 40) deputies were appointed in proportion to their frequency in the applicant pool, plaintiffs identify statistical disparities in two separate phases of the process. First, in some years the younger deputies did proportionately better than the older ones in four of the seven formally scored categories--Training, Education, Physical Fitness and Annual Appraisals. Second, plaintiffs offered evidence that if scores on the seven-part scoring system are held constant, younger deputies did better than older ones in the final phase of the process, actual promotion. In addition, plaintiffs specifically attack several of the criteria in the scoring system, claiming that the Service has chosen them with an intent to discriminate against older deputies.

We address the disparate treatment claim first, then the disparate impact claim.

Disparate Treatment

Age discrimination is governed by the disparate treatment analysis developed in the Title VII context. Arnold v. U.S. Postal Service, 863 F.2d 994, 996 (D.C.Cir.1988). To prevail, the plaintiff must first establish a prima facie case by showing that the plaintiff is a member of the protected class (here, persons 40 or older) who was qualified for and applied for a position, but was rejected in favor of a younger deputy. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54 n. 6, 101 S.Ct 1089, 1094 n. 6, 67 L.Ed.2d 207 (1981). If the plaintiff establishes a prima facie case, the defendant must come forward with a legitimate, non-discriminatory reason for its actions. Finally, if the defendant meets its burden of production, the burden shifts back to the plaintiff to persuade the fact finder that the defendant's reason for its action is a mere pretext for discrimination and (thus) that the defendant acted with "discriminatory intent." Id. at 252-54, 101 S.Ct. at 1093-94; Arnold v. U.S. Postal Service, 863 F.2d 994, 996 (D.C.Cir.1988).

The plaintiffs' prima facie case is not in dispute. We therefore turn to the district court's conclusion that the plaintiff failed to show discriminatory intent, reviewing for clear error. Bazemore v. Friday, 478 U.S. 385, 398, 106 S.Ct. 3000, 3007-08, 92 L.Ed.2d 315 (1986).

Non-Statistical Evidence

The district court found that the system was indeed legitimate and non-discriminatory, "designed to measure a range of variables that, in combination, reliably indicate whether the applicant is among the best deputies in his or her district and whether the applicant has the skills and background necessary to perform a broad range of tasks." Memorandum of June 6, 1994 ("Disparate Treatment Memorandum") at 8. The court also framed its findings about the system partly in terms of incentives, saying that it provided

an incentive for deputies to gain experience, update training, gain additional education, strive for awards, achieve high levels of performance, and be physically fit--all of which are important qualities in performing the varied duties of a Deputy United States Marshal.

Id. And the court noted that the Service gave heavy weight to experience, a factor on which the older deputies did disproportionately well, as plaintiffs' expert had conceded. Finally, it observed that promotion rates were proportional as between younger and older deputies.

At oral argument plaintiffs suggested that some of the Service's criteria were illegitimate, because, they said, they were aimed at providing desirable incentives for deputy marshals rather than choosing the persons most fit for the jobs, in violation of regulations of the Office of Personnel Management. We are not clear why plaintiffs assume that there is a conflict between criteria aimed at selecting the most suitable candidate and at providing incentives for career development, but in any event we need not address the issue. The allusions to the theory in plaintiffs' opening brief are sketchy at best, at no point identifying the language in OPM regulations that plaintiffs see as barring career development purposes. Lest opposing litigants be sandbagged, we do not resolve issues raised so fecklessly. See, e.g., Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983); cf. Fed. R.App. P. 28(a)(6).

The district court also found that the plaintiffs failed to show that the Service's reasons for using any of the seven criteria of the formal scoring were pretextual, and we find no error. The improbability of pretext is suggested by the Service's system of scoring on physical fitness. Deputies receive 0, 1 or 2 fitness points for various degrees of fitness in each of five categories, but the system is scaled so that in each category older deputies can earn points for lower levels of fitness than younger ones. Disparate Treatment Memorandum at 11; see also the Service's Rating Guide 5-7, 5-12. Plaintiffs seem to be imputing a rather machiavellian spirit to the Service, implicitly arguing that, although intentionally discriminating against older workers, it simultaneously lay a false trail by explicitly discriminating in...

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