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August 3, 1987

Rita M. Skelton, Plaintiff,
Action, et al., Defendants

The opinion of the court was delivered by: PARKER

 Barrington D. Parker, Senior District Judge:

 Plaintiff brings this suit under the Age Discrimination in Employment Act, 29 U.S.C. § 633a ("ADEA"), charging that she was denied promotional opportunities by her employer, the ACTION agency, *fn1" and was otherwise unlawfully discriminated against because of her age. *fn2" In her complaint, as subsequently amended, she alleged that ACTION failed to promote her to the position of Maryland State Program Director solely on the basis of her age and, in addition, systematically discriminates against older persons in filling positions at the GS-13 and GS-14 level, as well as favoring active members of the Republican Party. Plaintiff also charged ACTION with improperly designating certain GS-13 and GS-14 positions as noncompetitive and with failing to give due consideration to in-house applicants such as herself. After an initial round of pretrial motions, the Court dismissed all but the claim that plaintiff's nonselection for the Maryland State Program Director position was improper. See Orders of March 24 and June 18, 1986.

 Subsequent to the filing of pretrial briefs, defendants moved for summary judgment on the one remaining claim. They argue that the undisputed facts of record demonstrate that age played no part in plaintiff's nonselection and that, as is apparent from plaintiff's pretrial brief, she is not prepared to present at trial any evidence of discriminatory animus on the part of her employer. Under such circumstances, argue defendants, a trial would be a pointless exercise, as they are entitled to judgment as a matter of law. The Court agrees.

 Defendants have offered a legitimate reason for plaintiff's nonselection; the selecting official believed that another individual was better qualified. Once such a reason is put forward, it falls to plaintiff to demonstrate -- by either direct or indirect evidence -- that age was a determining factor in her nonselection. This she has utterly failed to do. Instead, counsel spent his energy during oral argument attempting to demonstrate that the selectee was not in fact better qualified. What counsel fails to realize, however, is that, once defendants come forward with a legitimate reason for not selecting plaintiff, it falls to plaintiff to address anew *fn3" the issue of discrimination, not to quibble about the candidates' relative qualifications. Not only is it not within the Court's province to second-guess an employer's choice of candidates, but even if plaintiff were to prove that she were better qualified, that -- without more -- would not indicate that she failed to obtain the desired position because of her age. All that such evidence would show, absent some other evidence of actual discrimination, is that defendants made a faulty selection decision. Yet that is not the kind of employee grievance that the Court is directed by Congress to remedy. Unless the employer's choice of candidates can be shown to have been tainted by unlawful discrimination, it must be allowed to stand, no matter how unwise it may seem to the disappointed applicant.

 For the reasons set forth below, defendants' motion for summary judgment is granted.



 The facts material to a resolution of this case are not in dispute. *fn4" On November 20, 1984, ACTION announced a vacancy for the position of Maryland State Program Director, GM-301-13. At the time plaintiff applied for that position, she was working at the National Center for Municipal Development, on detail from ACTION. Immediately before that assignment, which commenced in April 1984, plaintiff had been a GS-13 program analyst at ACTION. Competing with her for the Maryland position was Jerry Yates, who ultimately secured the appointment. For approximately two and one-half years prior to his application, Mr. Yates had worked on the staff of the Vietnam Veterans Leadership Program at ACTION, on detail from the Veterans Administration ("VA"). *fn5" As of January 1983, he was a GS-14. At the time of his application, he was 38 years old; plaintiff was 57.

 With his standard application form SF-171, Mr. Yates submitted two performance appraisals prepared by former supervisors at ACTION, together with an Applicant Appraisal Form for Merit Promotion completed by his then supervisor at the VA. Plaintiff also submitted an SF-171 and an Applicant Appraisal Form, together with several letters of appreciation. A comparison of the Appraisal Forms submitted by the two applicants reveals that Mr. Yates was consistently rated superior to plaintiff in all relevant areas of concern.

 The selection of a candidate to fill the Maryland position was made by Mr. Daniel Bonner, the Associate Director for Domestic and Antipoverty Operations at ACTION. In making his choice for the position, Mr. Bonner was not only impressed with the superior performance appraisals submitted on behalf of Mr. Yates, but also with favorable reports about Yates from his ACTION supervisors who, in turn, worked under Bonner. See Deposition of Daniel F. Bonner (June 19, 1986) at 47-49, 59-62, 66-67 ("Bonner depo."); Deposition of Jerry E. Yates (June 19, 1986) at 56-59 ("Yates depo."). These individuals reported to Bonner on the progress being made in the Vietnam Veterans Leadership Program ("VVLP"), in which Mr. Yates was working. *fn6" In this way, Mr. Bonner became at least indirectly familiar with Mr. Yates's work during Yates's detail at ACTION. It was generally reported to him that Yates was an outstanding employee.

 In contrast, Mr. Bonner was not especially impressed with the application package submitted by plaintiff, which contained an Appraisal Form indicating that, on the whole, she was only somewhat above average. See Bonner depo. at 75-77. Moreover, while Mr. Yates's application package included two performance appraisals from former supervisors at ACTION, Declaration of Daniel F. Bonner para. 7, plaintiff had only several letters of appreciation in addition to her Applicant Appraisal Form. Id. PP 7, 10. Her Applicant Appraisal Form rated her only average in certain areas deemed critical and, as to certain other factors, rated her only "above average" and then only on the basis of perceived potential rather than actual performance. Id. P 10. Mr. Bonner did not attach much weight to the letters of appreciation, as they appeared to be either remote in time, from persons other than plaintiff's supervisors, or not addressed to the skills or qualifications in question. Id. While plaintiff had on various occasions served as State Director in other parts of the country, Mr. Bonner found nothing in her application package to indicate that she had been a successful Director. Id. As was made clear in oral argument, plaintiff could have submitted performance appraisals from persons who evaluated her work as State Director, but did not. The absence of such appraisals from her application package is sufficient to have entitled Mr. Bonner to conclude that plaintiff had not in fact been especially successful in those positions. *fn7" For that reason, Mr. Bonner did not feel it necessary to contact plaintiff's supervisors, id. at 81-82, although he did speak with the persons to whom Mr. Yates directly reported. In short, Mr. Bonner considered Mr. Yates to be the superior candidate and so offered him the position rather than plaintiff.



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