was unquestioned, but suggested that Schmerling "pushed too hard." He could not understand why a colleague two years younger and also a program chief, had received a greater increase than he.
He considered the matter one of age discrimination "having exhausted my ability to find any other explanation. I was suddenly confronted with a pattern respecting age and my knowledge of how Codes E and S were treated. To this day I have not received any other explanation."
Dr. Schmerling opined that NASA was becoming "preoccupied" with age, citing "Age Dynamic Statistics", a 1978 age analysis report undertaken to provide data to the Personnel Management Review Committee. This study considered historical data for the entire NASA population for the five-year period (1973-77), accessions, promotions, quality increases, honor awards, downgrades, separations and executive compensation. It reflected that promotion rates in 1977 for NASA scientists and engineers, GS-14 and 15, were: 30-39 age group (17); 40-49 age group (36); 50-69 age group (11), PX 216, Figure 2D. It further indicated that NASA provided honor awards for excellence and substantially more awards were granted to the over 40 age group than to those under 40. See Figure 5A, PX 216.
According to Dr. Schmerling's independent calculations, salary rose with increasing age, but peaked at 43. While Codes R, T and M gave increases greater than Codes E and S, the rate of increase tended to decline with age; a greater tendency existed in Code E, and Code S reflected the largest salary reduction of all as age increased. He concluded, therefore, that although all excepted employees at Headquarters suffered a small diminution of salary with increased age, ("there is a small but significant reduction in salaries as the ages increase") the plaintiffs suffered the most, with their salaries well below average. In February 1977 the plaintiffs' spread of increases, of a possible 20%, ranged from 0 to 11.9%.
His analysis of the agency data relating to pay schedules, secured through a request under the Freedom of Information Act, concluded that "of all E&S excepted employees not already at the ceiling the only raises went to two, age 36 and age 40. Seven others, all 45 or above, got no raise." PX 112.
Until 1977 Dr. Schmerling did not dwell on discrimination. After the failure to receive the anticipated raise, he recalled that in 1976, for the first time, an application to attend a conference was denied on the excuse that priority was given to the newer arrivals; they also were younger. Similarly, in view of the workload and cost, he was denied a request to attend a 2-day professional program for graduates of the Federal Executive Institute. He had attended the latter, more intensive course for several weeks in 1975.
In October 1977, Dr. Schmerling's salary was increased to $42,500; in October 1978 to $44,850; he entered the Senior Executive Service and in July 1979 was raised to $46,470. In early 1980 he was receiving $49,499 and was at level 2 of SES; in his opinion, he should have been at level 4, and would have been, had he achieved a higher increase in 1977.
Although the plaintiffs finally viewed the salary adjustment as the result of age discrimination, they had first considered the possibility of other forms of discrimination: initially, they considered sex (male); then religion and anti-Semitism. They decided to focus on age discrimination as "the only thing feasible for all this happening."
They looked upon NASA as "youth-oriented" and discriminatorily "preoccupied" with age with its concern that top personnel -- the experts -- would, as Rosenberg expressed it, "all become 65 at once, all will retire at once and the leadership will be lost." Born in 1958 in advancement of the nation's space adventure, NASA was younger than most other agencies. The burst of Sputnik had brought space exploration to the United States, and with it, recruitment of the young. NASA had to fill its ranks with young people when it organized because there was no one else with the experience in space. As Mr. Rosenberg recalled: "Space was a new thing, there were only young people in there; they didn't find anyone else except for Werner Von Braun."
They gave some examples of their concern. A 37-page Report of the National Research Council, contracted by NASA and the National Academy of Sciences, addressed the potential role of the NASA's Lewis Research Center in the requirements for supporting research to facilitate the creation of advanced aircraft engines.
Plaintiffs focused on some of the content as illustrative of NASA's interest in age, PX 231:
Adequately trained and talented technical manpower is an essential element to the success of any research program. Because of the diversion of personnel to various space programs, and the aging and recent attrition of top level managers at Lewis, the laboratory should institute a personnel revitalization program that calls for new hiring, internal training programs, and increased interaction with universities. [At p. 1.]
. . . it has been only in the last ten years that Lewis has been reactivating its talent for air-breathing engine research and attempting to recruit young people into the field. Some TETF members felt that this situation was responsible for inconsistent progress in turbine component development. Lewis' management believes that it will still take several years to fill out the technologies needed and complete the modernization of the Center's functions (including the acquisition and assimilation of younger engineers to replace many who are reaching retirement age). [At p. 5.]