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August 17, 1985

ROBERT J. ENDRES, Plaintiff,

Oliver Gasch, United States District Judge.

The opinion of the court was delivered by: GASCH


 Plaintiff Robert J. Endres, a former official of the Federal Aviation Administration ("FAA"), has brought this age discrimination action against the FAA pursuant to Section 15 of the Age Discrimination in Employment Act as amended ("ADEA"). *fn1" This Court has jurisdiction over the matter by virtue of 28 U.S.C. ┬ž 1331 and Section 15 of the ADEA. Bunch v. United States, 548 F.2d 336, 340 (9th Cir. 1977).

 This case was tried to the Court on February 25-28, 1985. Upon consideration of the record herein, the Court issues this memorandum setting forth its initial findings of fact and conclusions of law. *fn2" In doing so, the Court again wishes to underscore that it does not sit as a personnel officer considering how best to organize the FAA. Rather the question before the Court is limited to a much narrower inquiry: whether the actions complained of constitute age discrimination.


 Mr. Endres joined the FAA's predecessor agency, the Civil Aeronautics Administration ("CAA"), in 1947, and worked in CAA offices in Wisconsin and Illinois. Trial ("T.") at 29 (Endres). In 1950, Mr. Endres transferred to the Office of Airports at FAA headquarters in Washington, D.C. He remained in that office until he left government service in August 1980. Id. at 128.

 Plaintiff enjoyed a number of promotions in the Office of Airports and, in 1975, was appointed chief of the Operations Division of that office, a supervisory position at the GS-15 level. Id. Plaintiff's professional record throughout this period including the four years he served as division chief consistently evidenced exceptional levels of achievement. Put simply, he was an exemplary employee and a first-rate manager. *fn3"

 Shortly after plaintiff's promotion to division chief, Langhorne Bond, Esq., was named Administrator of the FAA. Mr. Bond announced that he was committed to reorganizing FAA's Washington headquarters to ameliorate two related concerns: first, Mr. Bond believed that the number of organizational units in FAA was excessive, creating an overly complex bureaucratic structure; and second, Mr. Bond concluded that FAA headquarters had a surplus of positions at the GS-14 level and above. T. at 593-602 (Bond). Mr. Bond announced two initiatives to implement the reorganization: the Field Placement Program ("FPP") and a program referred to as Strengthening Field Operations ("SFO"). Id. at 606, 608-09, 625, 627-28. The former program was intended to encourage voluntary reassignment of headquarters personnel to FAA's regional and district ("field") offices by prohibiting filling field positions until it was determined whether any persons in headquarters were interested in applying for field positions. It did not require involuntary reassignment. Government Exhibit 4. The latter program, which was never really implemented, did allow involuntary transfer of employees to the field if qualified volunteers could not be identified. Government Exhibit 6; T. at 654 (Driscoll).

 In 1978, Robert J. Aaronson was named Assistant Administrator for Airports. In this position, he was responsible for supervision of the Operations Division plaintiff directed as well as three other divisions: the Airports Planning Division, the Airports Engineering Division, and the Development Programs Division. Government Exhibit 24. After an initial review of the Airports Office, Mr. Aaronson concluded that Mr. Bond's concern about the need to reduce the numbers of organizational units was applicable to the Airports Office. T. at 379-80, 404-05 (Aaronson). Mr. Aaronson then developed the plan for reorganizing the Airports Office that prompted plaintiff's claim of age discrimination.

 The reorganization plan envisioned two key changes in the Airports Office: first, instead of four divisions, Mr. Aaronson intended to have three: Design and Operations Criteria, Engineering Specifications, and Safety and Compliance; and second, instead of having each division have three branches, Mr. Aaronson announced that the twelve branches would be transformed into nine "groups." Compare Government Exhibit 24 with Government Exhibit 23. Mr. Aaronson also announced a standard for determining which supervisors under the old structure would remain in supervisory positions in the new structure: *fn4" Under Mr. Aaronson's standard, employees would be ranked by seniority, with seniority defined as years in FAA headquarters. All supervisory positions would be allocated to those employees with the least seniority. The "surplus supervisors" -- i.e., the employees with the most seniority for whom no headquarters supervisory slots were available -- were to be candidates for reassignment. T. at 382-83, 392, 419-20, 443 (Aaronson).

 Mr. Endres, who was then fifty-eight years of age, had the longest tenure at FAA headquarters of all the supervisors in the Office of Airports. Government Exhibit 10. Mr. Aaronson informed Mr. Endres in early February, 1979, that Mr. Endres would no longer have a supervisory position in headquarters and that steps were underway *fn5" to secure his transfer to Chicago or Alaska. *fn6" T. at 40-41 (Endres); Id. at 470 (Endres); Plaintiff's Exhibit 21. Plaintiff immediately informed Mr. Aaronson that in light of his health status, *fn7" the proposed transfer would impose great hardships upon him and that he believed the procedure for selecting those employees who were to be reassigned to the field constituted age discrimination. T. at 41 (Endres); 477 (Aaronson).

 On March 22, 1979, plaintiff was notified that he had been reassigned to Chicago. T. at 64 (Endres); Plaintiff's Exhibit 64. Plaintiff filed a petition with the Special Counsel of the Merit Systems Protection Board ("MSPB") challenging the transfer and an EEO complaint alleging that the proposed reassignment discriminated against him because of age. Plaintiff's Exhibit 48, 49, 50.

 On July 19, 1979, Mr. Aaronson issued a notice proposing plaintiff's removal from government service for refusal to accept reassignment to Chicago. T. at 77 (Endres); Plaintiff's Exhibit 75. On August 13, 1979, the MSPB issued an order temporarily enjoining plaintiff's removal. This stay was extended for an additional thirty days on August 28, 1979. Plaintiff's Exhibits 81 and 85.

 During this period, the parties entered into negotiations aimed at resolving the controversy. In September, 1979, the FAA indicated it might be willing to allow Mr. Endres to remain in headquarters in a new non-supervisory position as a GS-15 "Senior Technical Officer." T. at 78, 149-51 (Endres). Mr. James Bushee, manager of the Design and Operations Criteria Division, developed a job description for this position. T. at 677 (Bushee); Plaintiff's Exhibit ...

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