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COPE v. MCPHERSON

July 10, 1984

HENRY J. COPE, Plaintiff,
v.
M. PETER McPHERSON, Administrator, Agency for International Development, Defendant



The opinion of the court was delivered by: GESELL

 Gesell, District Judge.

 This is a claim by a long-time, responsible employee of the Agency for International Development (AID) that he has continuously been denied promotion since prior to 1976 by reason of his age. *fn1" The record of a full bench trial has now been briefed and the Court here enters its findings of fact and conclusions of law.

 Plaintiff is a white male now 59 years old. He was last promoted in 1968. After various tours of foreign duty he has worked in Washington, D.C. since 1973 as a specialist in development of labor organization training programs for developing countries. He is ranked FS-2, a Foreign Service officer grade which carries a maximum salary of $60,000, a rank only slightly below the rank held by the most senior Foreign Service employees of AID.

 Based on recommendations of his supervisors and a review of his personnel file plaintiff was found qualified for promotion by selection board panels in 1976, 1978 and 1980, *fn2" after review and rating in accord with the Foreign Service Promotion System established by the Foreign Service Act of 1960, 22 U.S.C. ┬ž 3901 et seq. In each instance, however, his ranking among those found qualified for promotion was not sufficiently high for him to be chosen for one of the limited number of promotions given. Plaintiff filed his initial administrative complaint alleging age discrimination in 1977. This complaint was finally denied in 1983, leading to the present action.

 Plaintiff presented no proof to show that his qualifications were superior to those of others younger than himself who were promoted to FS-1. Rather, he asserts that the promotion system inherently discriminates against older employees and that he has been a victim of the process. He bases this claim primarily on a statistical analysis of past promotions and upon the fact that time-in-service, i.e., seniority, is not explicitly taken into account when selections are made for promotions among those found qualified for promotion and ranked by the selection panels.

 The elements of proof and burdens of production and proof for a claim under the ADEA are well established. Plaintiff has the initial burden of showing a prima facie case of discrimination by a preponderance of the evidence.

 
To make out a prima facie case of age discrimination against either government or private employers, a plaintiff must demonstrate facts sufficient to create a reasonable inference that age discrimination was "a determining factor" in the employment decision. Such an inference is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for the [promotion], (3) was not [promoted], and (4) was disadvantaged in favor of a younger person.

 Cuddy v. Carmen, 224 U.S. App. D.C. 287, 694 F.2d 853, 857 (D.C. Cir. 1982).

  There is no dispute that plaintiff is a member of the protected class, was qualified for promotion in the years 1976, 1978, and 1980, and was not promoted. *fn3" In determining whether plaintiff has presented a prima facie case, then, the Court must consider whether he has presented evidence sufficient to create a reasonable inference that he "was disadvantaged in favor of a younger person."

 In addition to plaintiff's attack on the promotion system, he called the Court's attention to a statement by a former AID Administrator named Gilligan before a congressional committee who indicated his belief there were too many over-aged, over-paid employees at AID. Evidence was also presented establishing that plaintiff is and has been a steady, competent and in all respects satisfactory employee over his long tenure with the agency. Thus viewing the proof in the light most favorable to his cause plaintiff established by a preponderance of the evidence a sufficient but thin prima facie case.

 Once a prima facie case has been established, the burden falls on the employer to produce credible evidence tending to show that the employee was denied promotion for a legitimate, nondiscriminatory reason. If the employer does so, the employee then must show by a preponderance of the evidence that the proffered reason for plaintiff's non-promotion is merely pretextual, and that age was in fact "a determining factor" in the employer's decision. Id.

 As the following analysis of the entire record clearly establishes, credible evidence offered by AID amply established legitimate nondiscriminatory reasons for plaintiff's nonpromotion and the record is devoid of proof that age played any part in the nonpromotion decisions plaintiff challenges.

 Defendant presented a full explanation of the system which governed possible promotion of employees such as plaintiff who carry Foreign Service rank. These employees are reviewed annually for promotion eligibility by impartial panels which, at the conclusion of their analysis, rank qualified employees to reflect relative overall qualification for advancement. The panels are guided by detailed written ...


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