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.
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").
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.
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.
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.
A. Applicable Legal Principles
To withstand a motion for summary judgment, the nonmoving party must demonstrate that there exists a genuine dispute as to one or more facts material to the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Fed. R. Civ. P. 56(c). Moreover, as the Supreme Court stressed in Liberty Lobby, the dispute must be genuine, and it must concern a material fact. Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Facts that are "material" to the outcome of a case are those that the governing substantive law recognizes as relevant. U.S. , 106 S. Ct. at 2510. In age discrimination cases, they are facts speaking to the elements of the analytical framework laid down in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), a Title VII case. As modified for application in ADEA cases, the McDonnell analysis involves three steps. First, a plaintiff must make out a prima facie case of age discrimination by showing that he is a member of the statutorily protected age group, that he was qualified for the position but not hired or promoted, and that a person outside the protected age group was selected instead. Cuddy v. Carmen, 246 U.S. App. D.C. 25, 762 F.2d 119, 122 (D.C. Cir. 1985). Once a plaintiff has accomplished this, the burden then shifts to the defendant to rebut the resulting presumption of discrimination. Id. To do so, a defendant must produce evidence "that plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), quoted in Cuddy, 762 F.2d at 122. If the defendant is successful in that undertaking, it then falls to the plaintiff to prove his case "either indirectly by showing that the reason proffered by the defendant was in fact a pretext or directly by showing that it was more likely than not that the defendant was actually motivated by discrimination." Cuddy, 762 F.2d at 123. In other words, the plaintiff ultimately bears the burden of proving that age was a "determining factor" in his nonselection, id., and that "but for" the employer's discriminatory motive, he would have been selected for the position in question. 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).
A "genuine" issue concerning a material fact exists "if the evidence is such that [the factfinder] could [enter judgment] for the nonmoving party." Liberty Lobby, U.S. , 106 S. Ct. at 2510.
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.