towards the work of the VOB, in that since VOB was handling the "10/7 conversion," he needed someone to keep up with daily activities and to become immediately productive. Treichel testified further that a person with Cuddy's experience would need a considerable amount of training in the specialized area of federal telecommunications.
7. Since GSA carried its burden of producing evidence that the basis for Daley's selection (and plaintiff's non-selection) was legitimate and nondiscriminatory, plaintiff must show, by a preponderance of the evidence, that the reasons were a pretext for discrimination. In this regard, plaintiff has failed to carry the burden of persuasion.
8. First, plaintiff points to a statement made by Mr. Treichel in an affidavit executed in May 1977 as part of the administrative investigation into plaintiff's claim, wherein Treichel responded to a question posed by the investigator and said, "Age, I believe, is a minor consideration to selection but it is not the sole motivational factor." In the closing statement of the affidavit, Treichel declared, "I would not reject a person from consideration for a position in my office on age alone." However, at trial, Mr. Treichel credibly explained that in making these statements, he was speaking generally (in response to a general question) and was not referring to the selection of the GS-13 Communications Specialist position.
9. In addition, the evidence indicates that it is quite possible that plaintiff's name was never referred to Treichel for consideration. Although Robert Schoenfelder testified that he sent the Certificate of Eligibles to Treichel along with the referral of federal candidates, Treichel does not recall having seen the Certificate at the time he made his selection. This is supported by the fact that Schoenfelder returned the original Certificate to CSC on May 20, 1975, (retaining a copy for "possible later reactivation"), that the selection panel met on May 20 to consider federal applicants, and that the selection of a federal applicant was made on June 5, 1975. In this regard, an error may have occurred in the selection process, but there is nothing to show that it rises to the level of discrimination.
10. Finally, plaintiff points to the fact that Joseph Daniels, EEO Division Director, GSA, agreed that age was a selection factor. This position was set out in a Routing Slip to an EEO Coordinator, dated October 6, 1977. However, this statement is not binding on this Court nor the GSA, for it was simply part of the internal EEO complaints processing. In fact, after a hearing before the EEOC, the GSA found no discrimination.
11. In sum, although the plaintiff established a prima facie case of discrimination, the agency produced sufficient and credible evidence to show that its employment decision was legitimate and non-discriminatory. Moreover, plaintiff failed to present any credible evidence that the agency's employment decision was a pretext for discrimination.
In this Part the Court briefly elaborates on the findings and conclusions made in Part II, supra. The plaintiff was qualified for the position of Communication Specialist, a fact now conceded by the defendant, but that finding is not dispositive of the issue in this case. The question is, whether age was " a determining factor." The Court finds that it was not.
The answer to the question posed in this case depends upon whether age played a part in the defendant's decision not to select the plaintiff. As the Court of Appeals has observed, "[a] transgression arises only if age contributed to the employer's action -- so that the differential cannot be ascribed to influences 'other' than age. If age is what tips the scale in an adverse employment decision, a violation of the [ADEA] has occurred." Cuddy, supra, 224 U.S.App.D.C. at 292, n. 23, 694 F.2d at 858, n. 23. "Age need not be the sole factor, or even the most compelling". Id.
Treichel stated that he found that Daley was the "best qualified for the position in my office and that is why I selected him. In addition, Mr. Daley worked in the Voice Engineering Board office of Telecommunications and was familiar with GSA and the operations of my office." Record at 232. Treichel further testified that "I wanted someone who could be immediately productive and required the least amount of training to assume the duties of the position. Mr. Daley's qualifications were such that I thought he would be the best person for the job. He took a lateral transfer to this position." Id. The Court finds that the above statements reflect the actual reason for the selection of Daley and the nonselection of the plaintiff.
The plaintiff makes much of the fact that in the affidavit, Treichel stated that, "I have been told that Mr. Cuddy has alleged discrimination because of age. Age I believe is a minor consideration to selection but it is not the sole motivational factor " (emphasis the Court's). Treichel was asked what he meant by that statement and he responded that it was in response to a philosophical question asked by the investigator and that his answer was general and not directed to the case at hand. Record at 222. See also, Cuddy, supra, 224 U.S.App.D.C. at 293, n. 25, 694 F.2d at 859, n. 25. Based upon its consideration of all the evidence in this case, the Court finds that this "minor consideration" did not amount to a factor that made a difference to the outcome. Specifically, the Court finds that age was not even a "minor consideration" in this case. The decision to select Daley was based upon Treichel's determination, after weighing all relevant factors, that Daley was the best qualified for the position. The findings made by the Court assume that Treichel had an opportunity to consider the plaintiff. There was some evidence plaintiff's name was inadvertently omitted from the list submitted to Treichel. If this was the case, then clearly age was not a determining factor in Treichel's opinion unless the plaintiff was omitted from the list because of his age. The Court finds that, if plaintiff's name was omitted, it was not omitted because of plaintiff's age.
The most direct "evidence" of age discrimination presented by the plaintiff was contained in his testimony that he met with Treichel and Treichel advised him that he "wasn't selected and [he] said he selected another person but that person wasn't actually his selection, he was told to select the younger man, Daley." Record at 124 (emphasis the Court's). However, during further examination plaintiff was asked the following questions and gave the following answers:
Q. What precisely did Mr. Treichel say to you with respect to why he could not select you?
A. Nearly the exactly words was, 'I did all I could for you, Bill. If I push them any harder' -- words to this effect -- 'I'll put my job in jeopardy.' He said, "You can't get to hard,' because his boss would -- I guess he was worried about losing his own job.