The opinion of the court was delivered by: PENN
JOHN GARRETT PENN, District Judge.
The plaintiff charged the defendant with discriminating against him because of his age in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. He alleges that he applied for the position of Communications Specialist, GS-395-13 pursuant to a vacancy announcement and that the defendant refused to hire him because of his age. Robert A. Daley, who was 37 at the time, was selected for the position.
The case was originally scheduled for trial in January 1981. Plaintiff requested a trial by jury, however, the defendant opposed that request contending that the plaintiff was not entitled to a jury trial under the ADEA. The Court overruled the defendant's objection to a jury trial based upon the decision in Nakshian v. Claytor, 202 U.S.App.D.C. 59, 628 F.2d 59 (1980). The trial commenced on January 26, 1981. At the conclusion of the trial, the Court instructed the jury that the plaintiff had the burden of proof and was required to establish, by a preponderance of the evidence, that age was " the determining factor" in his non-selection. The jury began their deliberations at approximately 9:45 a.m. on January 29, 1981 and at 10:10 a.m., the jury returned with a verdict for the defendant. The plaintiff appealed. The Court of Appeals reversed noting that, subsequent to the jury trial in this case, the Supreme Court had ruled in Lehman v. Nakshian, 453 U.S. 156, 101 S. Ct. 2698, 69 L. Ed. 2d 548 (1981), that, in ADEA actions brought against federal agencies a plaintiff is not entitled to a jury trial. Cuddy v. Carmen, 224 U.S.App.D.C. 287, 694 F.2d 853 (1982). The Court of Appeals also concluded that this Court erred in instructing the jury that the plaintiff was required to establish that age was " the determining factor". Id. The appellate court ruled that the proper instruction was that age was " a determining factor". Id. The decision was reversed and remanded.
On remand to this court, the parties made no request to submit additional evidence. It was agreed that they would rely upon the record established at the earlier trial and that they would be given an opportunity to submit proposed findings of fact and conclusions of law. Their proposed findings and conclusions were to be submitted in December 1983. Each side has now submitted proposed findings and conclusions and the matter is ripe for decision by this Court.
After giving careful consideration to the arguments of the parties and the record in this case, the Court makes the following findings of fact and conclusions of law.
1. Plaintiff is a member of a class, age 64, protected by the ADEA.
2. In anticipation of retirement from the Southern New England Telephone Company, plaintiff filed an application for a position with the Federal Government in 1966. He kept his application current through 1974.
4. In February 1975, a GS-13 Communications Specialist position was advertised in the Automated Data and Telecommunications Service (ADTS), Voice Operations Branch (VOB), General Services Administration (GSA).
5. On February 20, 1975, Robert D. Schoenfelder, a GSA Personnel Management Specialist, requested a Certificate of Eligibles from CSC.
6. Sometime in February 1975, plaintiff visited Mr. Schoenfelder, who explained to him the CSC certification process for individuals applying for positions from outside the government.
7. In March 1975, CSC issued a Certificate of Eligibles bearing names of candidates, including that of Cuddy.
8. Mr. Schoenfelder sent a Notice of Availability to the six CSC candidates whose names appeared on the Certificate. Two candidates declined consideration for the position, and ...