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MILLER v. LYNG

May 12, 1987

Kenneth Miller, Plaintiff
v.
Richard Lyng, Defendant



The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, United States District Judge

 This is an age discrimination case brought pursuant to the Age Discrimination in Employment Act of 1974 ("ADEA"), 29 U.S.C. § 633a. Plaintiff Kenneth Miller, age 55, alleges that he was not selected to be the Field Office Manager ("FOM") for the Department of Agriculture ("DOA") in Peoria, Illinois, because of his age; the person selected for the job is now 43 years old, twelve years the plaintiff's junior. After a full trial on the merits, I find for the plaintiff for the reasons stated herein.

 I. Factual Background

 Plaintiff has worked as an Agricultural Commodity Grader for the Department of Agriculture's Federal Grain Inspection Service ("FGIS") since 1959. He was promoted to the position of Supervisory Agricultural Commodities Grader (GS-11) in the Peoria, Illinois Field Office in July of 1977. In that capacity, the plaintiff functioned as the assistant to the Peoria Field Office Manager. The Field Office Manager, Gail Nunn, retired effective January 3, 1986, and the plaintiff was designated the Acting FOM until the vacancy could be filled.

 Plaintiff applied for the vacancy and made the list of the six best-qualified candidates which was forwarded for final decision to Washington. Plaintiff, then 54, was the oldest candidate for the position. He was not chosen. Sam Basile, then a 42-year old Supervisory Agricultural Commodities Grader in the Indianapolis Field Office, was chosen for the position. Basile had worked for the FGIS since 1977, and had been a Grader since 1979.

 II. Legal Standard

 The District of Columbia Circuit has explained that in an action under the ADEA:

 
the plaintiff's ultimate burden is to prove that age was "a determining factor" in the challenged employment decision . . . The plaintiff must prove that "age made a difference in the employer's decision" . . . in the sense that, "but for" the discriminatory motive, the employee would have been hired, promoted, or retained.

 Krodel v. Young, 242 U.S. App D.C. 11, 748 F.2d 701, 706 (D.C. Cir. 1984), cert. denied 474 U.S. 817, 106 S. Ct. 62, 88 L. Ed. 2d 51 (1985) (citations omitted). To determine whether the plaintiff has met this ultimate burden, the D.C. Circuit has adopted the tripartite evidentiary scheme of Title VII cases articulated by the Supreme Court in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Krodel, 748 F.2d at 705, Coburn v. Pan American World Airways, Inc., 229 U.S. App. D.C. 61, 711 F.2d 339, 342-43 (D.C. Cir. 1983), cert. denied, 464 U.S. 994, 78 L. Ed. 2d 683, 104 S. Ct. 488, Cuddy v. Carmen, 224 U.S. App. D.C. 287, 694 F.2d 853, 856-57 (D.C. Cir. 1982).

 The plaintiff must first establish a prima facie case of discrimination through proof of "sufficient facts to create a reasonable inference that . . . age was a factor in the employment decision at issue." Krodel, 748 F.2d at 705. Once the prima facie case has been made, the employer bears a "minimal burden" of putting forward a legitimate, non-discriminatory basis for its decision. Should the employer meet this burden, the plaintiff may then attempt to show that the employer's rationale is merely pretextual, which he can do "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 III. Applying the Legal Standard

 A. Prima Facie Case

 A plaintiff can establish a prima facie case of discrimination by demonstrating "facts sufficient to create a reasonable inference that age discrimination was 'a determining factor' in the employment decision." Cuddy, 694 F.2d at 856-57. Such an inference is created if the plaintiff can show that he (1) belongs to the statutorily protected age group, (2) was qualified for the position, (3) was not promoted despite being qualified, and (4) was disadvantaged in favor of a younger person. Id. Plaintiff has carried his burden on each of these prongs and thus has made out a prima facie case.

 1. Member of Protected Class

 In this case, the protected class is defined as those "individuals who are at least 40 years of age," 29 U.S.C. § 631(b). The plaintiff, who was 54 at the time in question, clearly belongs to the protected class.

 2. Qualified for Position

 There is an abundance of evidence in the record to support the proposition that he was qualified for the position in question. First, plaintiff had an excellent work record and had received a number of citations for his outstanding work, as well as a number of monetary awards. Joint Ex. 1, Administrative Record ("Record"), at 17-20. For instance, just six months prior to the selection at issue in this case, plaintiff was awarded a "Certificate of Merit -- Cash Award," by John Marshall, Director of the Field Management Division, "for outstanding leadership, initiative, and professionalism as an instructor, and for ...


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