II. REDUCTION IN FORCE
A. The Disparate Impact Claim
A plaintiff in a discrimination action may establish a prima facie case of discrimination through the presentation of statistics in individual actions as well as in class actions. Davis v. Califano, 198 U.S. App. D.C. 224, 613 F.2d 957, 962 (D.C. Cir. 1979). Schmid's attempt to present a prima facie case of age discrimination in connection with the reduction in force by his proffer of statistical evidence is unavailing. The statistics offered by Plaintiff are not probative of discrimination. See Freeman v. Adams, No. 76-1587 (D.D.C. October 29, 1980). Cf. Segar v. Civiletti, 508 F. Supp. 690, 712 (D.D.C.1981) (statistics probative of racial discrimination with regard to salary, work assignment, supervisory evaluation, discipline and promotion).
In the 1978 RIF of which Schmid complains, only eleven employees holding grades GS-11 and above were separated. Such a small sample detracts from the value of statistical evidence. Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S. Ct. 1323, 1333, 39 L. Ed. 2d 630 (1974). While this defect could be overcome by a showing of statistical significance, see, e.g., Hazelwood School District v. United States, 433 U.S. 299, 309-11, 53 L. Ed. 2d 768, 97 S. Ct. 2736, 2742-43 n.14 and n.17 (1977) (standard deviation analysis endorsed), or by evidence of gross disparity, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339-40 n.20, 97 S. Ct. 1843, 1856 n.20, 52 L. Ed. 2d 396 (1977), neither are present in this case. The raw percentage comparisons presented by Plaintiff are inadequate for a showing of statistical significance. And Plaintiff does not indicate that the effect of the RIF on older employees was grossly disproportionate to the distribution of older employees in the employee population as a whole. The statistics presented do not raise an inference of discrimination.
B. The PIP Claim
There is no merit to Schmid's claim of discrimination in connection with the professional intern program, which insulated professionals below the journeymen level from displacement by RIFed employees such as Schmid. Schmid specifically complains that he was unable to displace a younger PIP protected Ph.D., Dr. Flasar.
The fact that more younger employees than older participated in the PIP is not by itself indicative of age discrimination. Schmid does not assert that older employees were not allowed to participate in PIP if they met the program criteria. Nor does Schmid offer any evidence that younger RIFed employees had any greater rights than older employees when confronted with a PIP protected job. The Age Discrimination in Employment Act does not give an older employee the right to displace a younger employee simply on account of age.
Chronology belies Schmid's claim of retaliation for filing an age discrimination claim. While it is unlawful to discriminate against someone because he has opposed unlawful age discrimination or has filed a charge, 29 U.S.C. § 623(d) (1976), there is no evidence of any retaliatory discrimination in the facts presented.
Schmid's reprisal allegation stems from the deletion of a GS-1340 qualification from his displaced employee's registration, following his separation from Goddard. The deletion occurred in April, 1978. Plaintiff's age discrimination charge was filed in May, 1978. It is thus impossible for the deletion in April to have been in retaliation for charges filed in May. See Downey v. A. H. Belo Corp., 402 F. Supp. 1368 (N.D.Tx.1975). See also Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978). Moreover, the deletion was altogether proper since Schmid was not in fact qualified as a GS-1340. Even if timing allowed, there was nothing improper about the correction of Schmid's displaced employee's registration which would support a retaliation charge.
With no material facts in dispute, Defendant is entitled to Judgment as a matter of law on all claims of age discrimination.
An appropriate Order accompanies this Memorandum Opinion.