Bunch v. U.S.
| Decision Date | 07 July 1982 |
| Docket Number | No. 80-3510,80-3510 |
| Citation | 680 F.2d 1271 |
| Parties | 29 Fair Empl.Prac.Cas. 547, 29 Empl. Prac. Dec. P 32,946 Howard E. BUNCH, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Eugene M. Moen, Chemnick & Moen, Seattle, Wash., for plaintiff-appellant.
Sally R. Gustafson, Asst. U. S. Atty., Seattle, Wash., for defendant-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before ANDERSON and ALARCON, Circuit Judges, and CRAIG *, District Judge.
Bunch appeals from the judgment of the district court in an age discrimination action and from the denial of his motion to strike testimony, or alternatively for a new trial or for relief from judgment. We must decide whether the district court erred in denying Bunch's motion; and, if so, whether the record shows prejudice. We find no error and no prejudice. We affirm the judgment and ruling of the district court.
In 1973, there was an opening at McChord Air Force Base in Washington for a position as an Air Force Reserve Technician (ART) Flight Instructor (Fixed Wing). Two candidates were considered for the position, Bunch and Charles Casson. Their records were reviewed and each was interviewed. After this preliminary process, Bunch was recommended as the primary nominee and Casson was selected as the alternate nominee. In keeping with the ART selection procedures, these recommendations were submitted to the Headquarters Air Force Reserve (AFRES) at Warner Robbins Air Force Base in Georgia.
At AFRES, the military records, including Officer Evaluation Reports (OER's), and the educational backgrounds of both candidates were reviewed by the Operations Division and by the Civilian Personnel Division. The Operations Division concurred in the McChord Selection of Bunch. The Civilian Personnel Division, however, concluded that Casson was the superior candidate. This determination was made by Lee Lingelbach, Director of Civilian Personnel, and Pierce Duane Turner, his assistant. AFRES accepted the Civilian Personnel Division's recommendation of Casson over Bunch. Bunch was notified of this decision by letter in April, 1973. The letter, drafted by Turner and signed by Lingelbach stated:
1. The attached nomination of Mr. Howard E. Bunch has been thoroughly reviewed by appropriate members of the Headquarters AFRES staff and his qualifications and retainability compared with those of your alternate nomination, Mr. Charles B. Casson.
2. Mr. Bunch's application reflects that he meets the qualification requirements for the position of Flight Instructor (Fixed Wing), GS-2181-13, however, there are other factors which must be considered in the selection process. Selection of the most highly qualified individuals to occupy key officer level positions is paramount to the effective operation of Air Force Reserve units. Merit factors which must influence the selection of a nominee must not only include current qualifications in the unit aircraft but also age of the individual, education level, overall retainability in the ART Program, 1 as well as the overall flying time and the experience background of the individual. Applicants considered should be thoroughly evaluated toward locating a person with the necessary "whole man" qualifications to meet mission requirements. Mr. Bunch is approaching 45 years of age, has not completed requirements for a college degree and he would become status quo in approximately eight years. He would not be eligible for Civil Service retirement at the time he must retire from the Air Force Reserve.
3. Since Mr. Bunch does not meet the "whole man" qualification criteria for entry of the AFRES Program, your alternate, Mr. Charles B. Casson has been considered. Mr. Casson is, for all practical purposes, as equally qualified as Mr. Bunch. He is 35 years of age, has a college degree and will not become status quo until 1987.
Plaintiff's Exhibit 8.
On April 12, 1974, Bunch filed suit in the district court alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633(a) (ADEA). Bunch contended that failure to select him for the position was on the basis of age and retainability which constituted age discrimination in violation of ADEA. See Brief for Appellant at 23. The suit was dismissed by the district court for lack of jurisdiction. On appeal we reversed concluding that jurisdiction existed since the suit was pending at the time the statute became effective. Bunch v. United States, 548 F.2d 336, 340 (9th Cir. 1977).
The depositions of Lingelbach and Turner were taken in October, 1978, by telephone. It is this deposition testimony that gives rise to Bunch's claims on appeal before this court.
At the time Lingelbach was deposed, he had not recently reviewed all the documentation involved in the selection of Casson over Bunch. Lingelbach Deposition at 6. While he had a general recall of the selection, over five years had elapsed since the selection had been made. See id. at 5-6. During the deposition, Lingelbach gave the following responses to questions from Bunch's counsel:
Q In this particular case, as I understand it from Mr. Turner, the feeling was that both the applicants were well qualified or very well qualified in terms of their flying backgrounds and experience and so on; is that correct, to your recollection?
A To my recollection, their flying time and so forth was comparable, yes.
Q And their qualifications in the unit air craft?
A Yes.
Q So what we're left with is-there are three things that are listed: their age, education, and retainability. Is that an accurate statement: those are the three factors that distinguished the two candidates?
A Those would be three but there are others. I'm sure that in looking at all the factors involved, we decided the most important; certainly those three would be key factors.
Q There may have been some others that weren't as important as those three?
A Yes.
Q You indicated that your primary concern was with this whole-man concept. Isn't that really just another way of saying you want to get the best person you can for the job, taking into account all the factors that influence a person's performance?
A I think that's a succinct summary of the definition of that word. In other words, we're looking at the whole-man, and we are interested in getting the best qualified person, and when you think of this in terms of the fact that our defense posture depends very heavily on the reverse side of it, this is probably even more critical than would might appear.
Q And you also said, I think, that in this particular case that you were applying the whole-man concept, and there were no single factor(s) that was the primary factor in determining that Casson would be hired instead of Bunch, rather the big picture, I believe.
A Yes. There was no prejudice that relates to anyone of these factors that relates to either one of the individuals. We look at the total thing as we would do on an awful lot of these in the course of the year, and based upon personnel and technical judgments, decide which man fits best.
Q So, you're saying, I guess, that really education by itself would not have been a determining factor necessarily, and retainability by itself might not have, and age by itself might not have been, but taking all of these factors together, plus what other ones were mentioned in the letter, taking them all together as the determining factor; is that correct?
A That's right, taking all the factors and, of course, realizing that each one of those is a very general term that is very broad....
Lingelbach also testified that Casson was chosen for the ART position because he was better qualified on an overall basis:
Q In this particular case, other than the letter of April 13, 1973, was there any one single factor that made Captain Casson more desirable to the ART program than Major Bunch, in AFRES' view?
A Looking at it in terms of what I have before me and my recollection, which, as you said, because of time is so far back, it was just the judgment of the staff activities involved in the determination that from an overall standpoint, using, again, the total man-concept which incorporates a big picture: today, as well as tomorrow, in terms of potential that the Captain (Casson) was better qualified. There was no single factor that singled it out.
Turner had reviewed material concerning the Casson selection over Bunch shortly before he gave his telephonic deposition. Turner Deposition at 5-6. Turner was asked to explain the letter sent to Bunch informing him that he had not been selected:
Q All right. Now, in that memorandum or letter, there's a mention made of the reasons why Mr. Casson was selected, and it talks about the "whole man" qualification criteria.
A Yeah. You have to state it again.
Q Okay. In that memorandum or letter, reasons are given why Mr. Casson was selected instead of Mr. Bunch, and it talks about the "whole-man" qualifications criteria.
A Mm-hmm.
Q And then it lists a number of factors that are called merit factors. Nothing is mentioned in there about the OER's, and I wonder if you can explain why it isn't mentioned, if you know?
A Well, I don't know except normally, you know, it was not mentioned. We never did mention; still don't today. Never have as far as I know mentioned the type of records that are reviewed in reaching a conclusion like that because it was based on not just OER's. It was based on several different things, and a lot of those-is that 13 April?
Q That's correct.
A Yeah. I have that here.
Q Fine.
A There's a lot of things that are listed there that, of course, weren't considered, you know. We looked at the total...
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