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July 31, 1985

LOUIS B. C. FONG, Plaintiff,

Joyce Hens Green, United States District Judge.

The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, United States District Judge

 This action, brought by the named plaintiff, Louis B. C. Fong, on behalf of himself and nine other similarly situated employees, *fn1" arises under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621, et seq.2 Essentially, the plaintiffs assert that the defendant, the Administrator of the National Aeronautics and Space Administration (NASA), abused his discretion concerning 1977 salary adjustments for these NASA excepted employees at Headquarters, and that those decisions were in violation of the Act since predicated on age; and further, that job retention and other conditions of employment were endangered or diminished as a consequence of this discrimination. Additionally, they contend that relegated to "career obsolescence", divested of opportunities to advance their already successful careers and diluted in prestige, they were also deprived of back pay resulting from lost wages, that is, the difference between their salary levels on February 27, 1977 and the salary they were entitled to receive had the defendant's actions not occurred. Among relief requested, plaintiffs seek compensation for the above lost wages, pension rights with retroactive adjustment of all commensurate benefits related thereto, compensatory and liquidated damages and an order in the nature of an affirmative action plan designed to rectify the alleged discriminatory actions of the defendant.

 Denying that age was a factor in any of its actions towards plaintiffs, the NASA asserted that the claimants were entitled only to that salary fixed by the Administrator in his discretion and under statutory authority, pursuant to which each plaintiff was appointed.

 For reasons demonstrated by the findings of fact and conclusions of law noted herein, the Court concludes that Louis B. C. Fong, and the nine other similarly situated employees he represents, have not prevailed on the claim of age discrimination and that judgment must, accordingly, be entered in favor of the defendant.

 At the time of litigation all the plaintiffs were or had been long service employees, holding administratively determined (AD) positions at NASA Headquarters in Washington, D.C., assigned to Code E (the Office of Space and Terrestrial Applications) or Code S (the Office of Space Science). They had served, and in almost all cases continued to serve, in excepted positions pursuant to the provisions of the National Aeronautics and Space Act of 1958, as amended, 42 U.S.C. § 2473(c)(2). *fn3" The majority of these employees had entered the federal career competitive service at lower grade levels, progressed to the GS-16 level and, as recently as 1974, were converted to excepted positions.

 The NASA pay system differed from that conventionally applied in the federal government, using GS grades through GS-15, with only "non-quota" GS-16, restricted to a limited few illustrious scientific persons. Under its statutory provisions the Administrator could appoint 425 individuals (excepted personnel) and set their compensation (administratively determined), not to exceed the GS-18 ceiling. Under the General Schedule (GS), positions of comparable responsibility were paid an identical rate with in-step increases provided, as appropriate, over a time span.

 Distinguished and lauded scientists and engineers, through education, experience, creativity and demonstrated accomplishments, our plaintiffs, individually and collectively, had provided valuable services at NASA to the development of the United States Space Program. Prior to 1977, none had ever received an unsatisfactory rating. The majority were over 50 years of age at time of their initial agency complaint; all were over 40 years of age.

 The plaintiff, Louis B. C. Fong, who retired in February 1980, had been an employee of NASA at its Headquarters offices, holding an excepted position and assigned to Code E as an inter-governmental affairs officer. *fn4" In February 1977 he was 62 years of age. Prior to that time his salary was $39,600. After the salary adjustment in February 1977 he was raised to $40,000.

 An electrical engineering graduate of Massachusetts Institute of Technology with a master's degree in engineering administration from George Washington University, Mr. Fong had received a coveted Brooking's Institution federal executive fellowship.

 Prior to coming to NASA in 1962, when he was 48 years old, he was a mid-level GS-15. He entered into the excepted service at NASA with an approximate $1,000 increase over his prior GS level, in the expectation, subsequently realized, that the salary would be reviewed periodically (every six months to one year) and increased as appropriate.

 By October 1976 he had achieved the "ceiling", that is, the $39,600 maximum salary allowable by law at that time for the excepted personnel, maintained at a rate equal to the pay ceiling for GS employees. At that time, the Federal Salary Act, 2 U.S.C. § 351, et seq., increased the ceiling in the General Schedule (GS-18) from $39,600 to $47,500.

 Aware of some management activity concerning the matter, Mr. Fong was uncertain of the increase he would receive. He expected, as always in the past (with one exception) to be raised to the maximum. Instead, his adjustment was minimal, only $400.00, and did not approach the pay ceiling then applicable.

 Concerned their good records of achievements were not being recognized appropriately, and suspecting that inequities were resulting between the increases given "excepteds" in Codes E and S and those in other code organizations, *fn5" Mr. Fong and two other scientists *fn6" similarly disillusioned, complained initially to Dr. James C. Fletcher, then Administrator. Dr. Fletcher indicated that for the first time, with a potential twenty percent salary increase to $47,500, the agency had the opportunity to place persons at varying, but appropriate, levels of pay. Dissatisfied with this response, Mr. Fong continued to question why excepted personnel in Code E (like Fong and Lehmann) received only one percent increases and a management person in Code T with apparently similar responsibilities, received the full twenty percent adjustment. Although no other NASA excepted was exactly equivalent, he compared his situation to an employee who received the ceiling in his non-technical budget office capacity.

 Later, Mr. Fong contacted Dr. John E. Naugle *fn7" who indicated he would support the recommendation of the salary committee.

 On March 24, 1977, ten Headquarters employees, *fn8" all between 40 and 62 years of age, filed a complaint of age discrimination with the EEO counselor, denominating it a class action based on the February, 1977 salary adjustment. Contending that the adjustment had created an inequity in the pay level between those ten excepted personnel and employees with comparable duties in other divisions of NASA, they emphasized their demoralization in not being granted commensurate and automatic pay increases as senior GS employees received. *fn9"

 Subsequently formalized as an administrative class complaint (PX 217-I), the claimants alleged that management's recent pay decisions providing senior excepted service personnel in Codes E and S substantially less than their peers in the other technical program offices of NASA (Codes M, R and T), were the direct result of age discrimination. They asserted that without criteria and without a uniform approach, NASA had denied them equal pay for equal work, since, in their view, "the level, quantity, breadth of responsibility and complexity of work are comparable in all these major program areas." (Id., Supp. Sh. No. 1.) They sought the pay increase retroactive to February 1977, in the amount "they would have received at the GS supergrade equivalent levels they had attained prior to the imposition of pay ceilings or which they would have received as GS-16 had they not been involuntarily converted to excepted service." PX 217, App. J.

 Another counselor joined in the investigation of the grievance; they attempted informal resolution, meeting with the Associate Administrators of each of the claimants. Samuel Keller, Assistant Administrator for Personnel Programs, was designated as the focal point for executive pay information and advised the counselors that the executive pay levels were based upon the difficulty of the job and the incumbent's performance in that work. The counselors submitted their report in July 1977, PX 217, reflecting that the complaint had not been informally resolved.

 Pursuant to 1973 agency policy, NASA Management Instruction (NMI) 3100.1A, the assessment of excepted service personnel for purpose of pay increase was based on the individual's qualifications and performance, not on the position. While recognizing that some directors in Code E had not received the same pay raise as directors in other program offices, the claimants had initially attributed this difference to the inexperience of their Associate Administrator (who had been in position only a few months) and the oversight of the salary committee. Later it appeared to them, in a reversal of past application, that the new salary levels were based on the position, its function and title, and not on the individual's work. They became more convinced than ever that the determinations were predicated on age. They began to generate statistical data to support this premise.

 Mr. Fong pursued the matter further, discussing it with Dr. Alan M. Lovelace, former Deputy Administrator and later, successor to Dr. Fletcher who left the agency. Although Mr. Fong did not receive a satisfactory salary adjustment in early 1977, Dr. Lovelace subsequently recommended him for a $2,800 increase, a sum halved by Dr. Calio to $1,400.

 The matter of age, raised only inferentially in the earliest discussions with Dr. Fletcher, had become increasingly the focus of claimants' concern. *fn10" Since all the claimants had unblemished records and most had received career awards with special achievement recognition, *fn11" and constant raises, they could not find an acceptable explanation for their disappointing (small or non-existent) salary adjustments. They concluded that age was the only reason -- all members of the class in Codes E and S being above 40.

 While the complaint and investigation were underway, Fong and Garbacz contacted two Congressmen, seeking the facts and hoping that pressure would be brought on the Administrator to achieve some kind of favorable salary adjustment.

 Responding to a Congressman's inquiry, NASA advised that the salaries of its "supergrade-level" excepted employees were adjusted after a long existing salary compression. Based on the responsibilities and performance of each individual, that paysetting was in the sole discretion of the Administrator. The agency referred to the extensive review undertaken by senior management, where each individual was evaluated. The Administrator made his decision after recommendations of his senior advisers.

PX 2, at 2.

 While NASA concurred that those GS-16 appointees who were converted to excepted positions did retain the rights and benefits common to all competitive systems, it was adamant that no assurance had been given anyone that he would continue to receive the same salary as if occupying a GS-16 position. Under the excepted status, none had a right to automatic salary increase.

 In November 1977, the Complaints Examiner appointed by the United States Civil Service Commission (CSC), recommended as an EEO class complaint the issue of whether age was a factor in the salary determinations for AD employees in Codes E and S.

 Through its Director of Equal Opportunity, NASA adopted those recommendations, modifying only the age of the class to "at least 40 years of age."

 Thereafter, the agency proceeded to process the age discrimination issue. An administrative hearing was held, during which time this case was filed. On August 15, 1978, NASA adopted the recommended decision of the Complaints Examiner who found no discrimination, in the absence of evidence on which to conclude age was a factor in the salary setting decisions.

 The early stages of the instant litigation had already commenced. Thereafter extensive discovery was undertaken: eight sets of interrogatories (totalling hundreds, perhaps thousands of questions), eight sets of requests for documents (totalling hundreds of documents), multiple requests for admissions and fifteen depositions. The case culminated in a bench trial of over one week, during which time numerous witnesses testified, some stipulations were reached and hundreds of exhibits were admitted.

 It is appropriate to review here the experience and qualifications of each of the nine other parties in interest, represented in their common cause and complaint by the plaintiff Fong.

 Employed at NASA Headquarters and holding an excepted position, Marcel J. Aucremanne was 53 years old and earning $37,800 in February 1977. He was assigned to Code S as Program Manager for Space Telescope. Despite the salary adjustments of February 1977 his salary remained without increase.

 An electrical engineering graduate of the University of Notre Dame (B.S. and M.S.), he served briefly as a part-time instructor in the engineering department at the University. Later he worked for private industry as an electronics engineer. His government service commenced at the Naval Ordnance Laboratory where he remained for eight years. In 1959, at age 36, Mr. Aucremanne began his association with NASA as a GS-14 aeronautic research scientist working on the early Explorers missions; subsequently, he became Program Manager for Orbiting Geophysical Observatories where he was also responsible for the Pioneer program. From 1968-76 he was Program Manager, Advanced Programs and Technology and also (for four years of this period) study manager for the Large Space Telescope. In 1974 he was converted, with no change in title or salary, from his GS-16 position to an excepted position. The excepted personnel comprised an elite corps and he did not protest this appointment. In 1976 he became Program Manager, Space Telescope, *fn12" at a salary of $37,800, and was serving in that capacity at the time of the adjustment in issue. From 1974 to 1977 he had at least one or two professional employees under his supervision.

 His NASA honors/awards are reflected on his resume, PX 27: quality increases in 1963 and 1968, a congratulatory message in 1976 from then Vice President Humphrey on the successful launch and operation of the Orbiting Geophysical Observatory III, a 1973 group achievement award for Pioneer VI; other letters of appreciation laud his performance at NASA on steering committees and working groups. PX 258, 1958; PX 318, 1975; PX 319, 1975; PX 31, 1978.

 When he learned that he would not receive a pay raise he went to his Division Chief who criticized Aucremanne's style of management, a matter on which the men admittedly "did not see eye-to-eye." Prior to October 1976, though, his job performance had not been criticized and he had received satisfactory expressions of his performance.

 He considered all program manager jobs as equally important and felt that his salary adjustment should have been comparable to "people in the same category as Bill Folson, in Code T, and Belcher, Code T [who each received $43,600]."

 Concerned that there appeared to be an "age consciousness" and agency trend since 1974 towards hiring the younger people, when Dr. Hinners at age 39 became head of the Office of Space Science, Mr. Aucremanne, the oldest in the Division in February 1977, suspected that age may have been a consideration in the salary adjustment.

 He could have remained in the excepted service, but, because of his failure to receive the salary increase, he sought and accepted reassignment in August 1977 from his excepted position (which embraced a sizeable program) to assumption of lesser responsibilities in the competitive service as a GS-14/10 Program Manager of Operation Satellite in the Astro-Physics Division in the Office of Space Science. He retired from this post, and NASA, in February, 1980, having served nearly 21 years with the agency.

 William E. Brunk, 48 years of age and earning $37,800, was employed at NASA Headquarters holding an excepted position in February 1977. He was assigned to Code S as Program Chief, Planetary Astronomy. His salary remained unchanged when the salary adjustments of February 1977 took place.

 Receiving his doctorate in astronomy from Case Institute of Technology on educational leave while employed by the government, Dr. Brunk was subsequently transferred to NASA as a GS-11.

 With NASA since its birth in 1958, he worked on spacecraft orbits and trajectories, utilizing his background in mathematics and astronomy, and assisted in planning and developing a national program in planetary astronomy. He came to NASA Headquarters at age 36, working for the Lunar and Planetary Programs Office. Promoted to a GS-16 after twelve years, he was involuntarily transferred in 1974 at the GS-16/5 level to an excepted category; he was 45 years old. His title and salary ($36,000) remained the same. The transfer from GS to excepted personnel was "to create a more lean and effective work force and to achieve the best possible ratio and internal alignment of executive positions", PX 35. He was told that he was "serving in a position in the Competitive Service and acceptance of the above conversion will not result in your leaving the Competitive Service. This means that the Civil Service Act and other laws applying to Competitive Service positions will apply to you during your service in this excepted position." Id. Not among those who subsequently charged this conversion as an adverse action, Dr. Brunk did not formally protest his appointment as an excepted.

 For his service on several committees and panels, where he contributed leadership and expertise, he received letters of commendation, PX 266 (1967), PX 264 (1969). Twice, in 1969 and 1971, he received quality increases, each approved by Dr. Naugle, then Associate Administrator for Space Science and Applications.

 The first time he did not receive a pay increase was in October 1976 when the salary ceiling was raised from $37,800 to $39,600. When he questioned the situation, he was advised that only three of the eight excepted personnel in his Division had been increased in salary. His Director had argued strongly on his behalf for a raise, but Drs. Hinners and his Deputy, Dr. Anthony Calio were "unhappy with the [poor] way I had managed the IRTF program", a pre-1977 criticism expressed informally. Since 1975, when he came "aboard", Dr. Calio "always criticized some aspect of the program." Later, Calio decided the Office of Facilities would be responsible and ". . . I would be project scientist advisory to the project. [Still] he criticized me monthly for the management of something over which I had no control."

 Significant problems had delayed construction of the facility and time and cost increased substantially. *fn13" Disagreements continued between Drs. Calio and Brunk, and others, concerning the direction to take, alteration of previous design and management plans, and disputed allocation of the percentage of observing time for the University of Hawaii. *fn14" Discussion about the situation, and eventual replacement of the telescope's $400,000 primary mirror which had cracked during polishing produced months' more delay. During some of these discussions, Dr. Calio referred to Dr. Brunk as a "liar", stating that he had never trusted him. It became evident, as Dr. Brunk testified, that these men could no longer discuss their actions civilly: "we never spoke to each other after this." See PX 327A, 327B, 327C, for further illumination. *fn15"

 Dr. Hinners had no dissatisfaction with his performance save for the "personality conflict" that lingered between Hinners' Deputy, Calio, and Brunk: this was the reason he was not raised in salary; "this personal disagreement", Hinners advised, would have to be resolved. Dr. Brunk could not dispute that a "very strong" conflict existed, one well-known to everyone in the Office of Space Science. While he felt continually pressured, he attributed that reaction solely to Calio's attitudinal actions toward him and not to any acts of others. The matter of age was neither considered at this time nor discussed.

 Dr. Brunk learned from his supervisor and "through the grapevine" that a salary board had been appointed and Dr. Calio had been his office's representative to that board. The board had essentially accepted the recommendations made by the various offices. As Dr. Brunk mulled over the distribution of the salary increases, he concluded that "age was probably the factor since there was no other apparent factor." He reasoned that: (1) other GS-16s, who were downgraded to GS-15 positions (at time Brunk and others were converted to excepteds) were, as a result of the February, 1977 increase, now receiving higher salaries than he; (2) that despite increased program responsibilities and greatest seniority based on years on the job, he was, nonetheless, second lowest salaried science program chief in Lunar and Planetary Programs; and (3) that most of the personnel in the lowest salaried group in the Office of Space Science were "close to or over 50" and his job responsibilities were "as great or greater" than several of those at lower ages and higher salary levels. PX 36.

 Subsequently, he would respond to the inquiry of Mr. Fong, the class agent: "There have been no specific instances of age discrimination in any area other than that of salary increases. There has been no decrease in my job responsibility nor in size of budget for the program for which I am responsible. The budget has actually increased by $600,000 in FY 1977." PX 37.

 Comparing his work as an excepted personnel in February 1977 to people with equivalent responsibilities, Dr. Brunk asserted he should have received an increase to $42,300; alternatively, he argued, he should have received an increase to $43,900 had he been a GS-15/10 at the time of his conversion to excepted status.

 In October 1978 (when Dr. Calio had moved to another post) Brunk received the full comparability increase. In December 1978 he was given a "significant increase", to $42,750, "for no apparent reason." Thereafter, Dr. Brunk joined the Senior Executive Service and received $44,756.

 In February, 1977, when 49 years of age, Michael L. Garbacz was an employee of NASA at its Headquarters office holding an excepted position and assigned to Code E as Program Manager, Operational Meteorological Satellites. Prior to February 1977 his salary was ...

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