While plaintiff alleges age discrimination in NHTSA's refusal to promote him to any of seven vacancies, position announcement numbers 77-23, 77-24, 77-25, 77-26, 77-27, 77-32, and 77-33, as to one of these positions, vacancy 77-32, plaintiff's claim is wholly meritless because in the initial review of plaintiff's application, the Office of Personnel did not deem him even minimally qualified after considering all of his experience and before the application of the half-credit rule. Ellison Aff. (I) P 2. As to the other six claims, it appears that no material factual issues remain for consideration and that the defendant is entitled to judgment as a matter of law that it did not violate the ADEA by utilization of the half-credit rule in the instant case.
Even assuming that plaintiff could establish a prima facie case, the defendant has justified the use of the half-credit rule for legitimate, non-discriminatory reasons. The rule is based on the NHTSA's needs because of the rapid technological and engineering changes occurring in the automotive industry, particularly in the area of fuel economy. Affidavit of Samuel F. Powel, III, Chief of the Technology Assessment Division, Office of Passenger Vehicle Research at NHTSA, at PP 3-4. Five of the six vacancies in issue are in the area of fuel economy. Given everchanging technologies, consideration that recent experience is more important than years' past experience is clearly related to the Administration's goals and operations.
Further, plaintiff has failed to show that age was a determining factor in the decisions not to promote him. See Jackson v. National Highway Traffic Safety Administration, Civil Action No. 78-2396 (D.D.C., decided November 19, 1980). Plaintiff asserts that were it not for the half-credit rule, he would have been rated highly qualified. Affidavit of William Eason at 1. The defendant has submitted materials indicating that even absent the half-credit rule, plaintiff would not have been placed on the Certificate of Eligibles. Ellison Aff. (I) at P 4; Ellison Aff. (II) at 2. This contention is based on a recalculation of plaintiff's quality scores giving him full credit for all of his experience, and is validated by actual rating forms submitted with defendants' materials. Ellison Aff. (II). This documentation indicates that although plaintiff's experience rating would, in some cases, have been somewhat higher, his scores still would have been below the thresholds set for the two categories in the various Certificates of Eligibles.
As to only one position, vacancy 77-23, plaintiff was rated "qualified" on the Certificate of Eligibles and, absent the half-credit rule, his score would have been higher but not high enough to make the "highly qualified" list. Ellison Aff. (I), P 4; Ellison Aff. (II), P 8. Because plaintiff would have remained in the qualified group and because the selecting official never sees the scores once the Certificate of Eligibles is submitted, the change in plaintiff's score could not have affected the decision not to promote him. Because the defendant has demonstrated that no changes would have resulted had the half-credit rule not been applied, the plaintiff is not able to carry his burden.
Cf. Rogers v. Equal Employment Opportunity Commission, 179 U.S. App. D.C. 270, 551 F.2d 456 (D.C.Cir.1977) (Defendant prevailed since plaintiff would not have received a position absent alleged racial discrimination.); Rosaly v. Ignacio, 593 F.2d 145 (1st Cir. 1979) (Employer who impermissibly considered protected expression in employment decision can prevail by showing same decision would have been reached absent such a consideration.)
Plaintiff's final contention is that the half-credit rule has an adverse impact on employees protected by the ADEA, and that the burden is on the defendant to show that the half-credit rule is sufficiently related to the employment in question. An allegation of adverse impact satisfies the plaintiff's burden if he shows that the practice in question selects applicants in a pattern significantly different from the pool of applicants, and then the burden shifts to the defendant to show that the practice has a manifest relationship to the position in question. Cf. Albemarle Paper Company v. Moody, 422 U.S. 405, 425, 95 S. Ct. 2362, 2375, 45 L. Ed. 2d 280 (1975) (setting out these burdens for claims of racial discrimination).
NHTSA's employment statistics do not reveal an adverse impact resulting from the half-credit rule. For the vacancies presently in issue, there were fifty-seven applicants in the selection pool. Four of the applicants were less than forty years old. Only one of these four was chosen for a position. The remaining positions were filled by applicants whose average age was 47.5, or approximately the same as the plaintiff, or even older. See Civil Service Commission, Findings and Recommended Decision in the Discrimination Complaint of William R. Eason, Decision No. DC-07138-0225, Sept. 28, 1978 at 2. Furthermore, the age statistics in plaintiff's branch and office within the NHTSA refute the existence of a discriminatory hiring pattern as well.
Plaintiff is unable to demonstrate that he was discriminated against on the basis of his age, either by virtue of the application of the half-credit rule to his applications for promotion, or by his allegations of adverse impact in the operation of the half-credit rule. It appearing that no material issues of fact remain and that the defendant is entitled to summary judgment as a matter of law, judgment will be entered for the defendants and the case will be dismissed.