The opinion of the court was delivered by: GASCH
This is an action brought under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA" or "Act"), for alleged age discrimination in federal employment in violation of section 633a of the Act. Plaintiff alleges that he was denied a promotion on the basis of his age. He seeks retroactive promotion, back pay, adjustments in his retirement, sick leave, vacation and other benefits, compensatory damages for mental suffering,
injunctive relief against future discrimination, attorneys fees and costs. A trial to the Court in this matter was held on December 3, 1976. The Court now makes the following findings of fact and conclusions of law.
1. Plaintiff, David C. Braswell, was born on July 20, 1926. Plaintiff is currently employed, and was employed at all times relevant to the instant action, as an attorney-advisor (general), GS-905-14, with the Office of Finance, Office of the General Counsel, Small Business Administration (hereinafter "SBA").
2. Defendant Mitchell Kobelinski is the Administrator of the SBA, an executive agency of the United States Government.
3. On January 27, 1976, the position of Chief Counsel for Administrative Law (hereinafter "CCAL"), Office of Interagency Affairs, Office of the General Counsel, SBA, became vacant when the then incumbent was transferred to another position. At all times relevant to the instant action, the CCAL position was classified as a GS-905-15 position.
4. On February 14, 1974, plaintiff was detailed to the Office of Interagency Affairs to give him the opportunity to work in some of the areas with which a CCAL would be concerned, to give the top management of the Office of General Counsel an opportunity to observe him performing functions in these areas, and to alleviate the workload problem in the Office of Interagency Affairs. Plaintiff remained on detail to the Office of Interagency Affairs until June of 1974. During this period, plaintiff was assigned duties which were both pertinent to the role of CCAL and necessitated by the workload of the Office of Interagency Affairs.
5. During this period in which plaintiff was on detail to the Office of Interagency Affairs and during the period of the selection process for a new CCAL, Mr. Donald W. Farrell was the Associate General Counsel of the SBA in charge of the Office of Interagency Affairs and Mr. H. Gregory Austin was the General Counsel of the SBA. The final decision as to the appointment of a new CCAL was made by Mr. Austin after consultation with other members of the top management of the Office of General Counsel, including Mr. Farrell.
6. In their search for a qualified candidate for the CCAL position, Mr. Austin and the other members of the top management in the Office of General Counsel initially considered only persons already employed by the Office of General Counsel, including Mr. Braswell. In mid-June of 1974, they determined that neither Mr. Braswell nor any of the candidates who had been considered for the position up until that time, all of whom were members of the staff of the Office of General Counsel, was qualified or desirable as a CCAL. At the time, they turned to personnel outside of the Office of General Counsel.
7. In late June and early July of 1974, Mr. Robert Peterson, who at that time was a GS-15 attorney with the Office of Minority Business, United States Department of Commerce, was being considered for the CCAL position. During this period, both Mr. Austin and Mr. Farrell interviewed Mr. Peterson. On the basis of these interviews, a review of Mr. Peterson's qualifications, and the strong recommendations of his superiors at the Department of Commerce, Mr. Austin determined that Mr. Peterson was highly qualified and desirable as a CCAL. Mr. Peterson was offered the position on July 18, 1974, and he was appointed to this position on August 18, 1974.
8. During their respective periods of consideration as candidates for the CCAL position, plaintiff was 48 years of age and Mr. Peterson was 40 years of age.
9. In considering each candidate for the position of CCAL, Mr. Austin and the other members of the top management in the Office of General Counsel considered each candidate individually as to his ability, knowledge, experience, and maturity, as compared to the level of ability considered necessary and desirable for a CCAL.
10. In determining whom to appoint to the position of CCAL and in considering each candidate for the position, Mr. Austin and the other members of the top management in the Office of General Counsel were looking for an attorney who had the knowledge, ability, experience and personality necessary to perform the duties of a CCAL, and if there was more than one such candidate, the candidate who was the most qualified. They were not seeking to make this appointment on the basis of the youth of the candidate.