conclude that he was not motivated by discriminatory animus. Burdine, 450 U.S. at 257.
5. Finally, in order to prevail, the plaintiff must then establish by a preponderance of the evidence that the defendant's stated reasons were simply a pretext for discrimination. Burdine, 450 U.S. at 253; McDonnell Douglas Corp., 411 U.S. at 804; McKenzie v. Sawyer, 683 F.2d at 71. At this point in the order of proof, the plaintiff's burden merges with the ultimate burden of proving that he was a victim of intentional discrimination. Burdine, 450 U.S. at 256.
6. Although the burden of production shifts between the plaintiff and defendant, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains with the plaintiff throughout the entire case. Burdine, 450 U.S. at 253, 255-56; McKenzie v. Sawyer, 684 F.2d at 71.
7. A plaintiff cannot meet his ultimate burden of proof by simply showing that the agency's decision, although not based on a prohibited factor under the Act, was reached in violation of federal personnel law. Instead, discriminatory motive is critical. See Johnson v. Lehman, 220 U.S. App. D.C. 100, 679 F.2d 918 (D.C. Cir. 1982).
8. Plaintiff claims that he was not selected for the position of Foreman of the Sheetmetal Shop because of his race. However, the evidence fails to support this claim.
9. Plaintiff has established a prima facie case of discrimination in that he belongs to a protected group, was qualified for the position, was considered for and denied promotion to the position, and another employee not of the protected group was selected.
10. Defendant has, however, articulated legitimate nondiscriminatory reasons for the selection of Mr. Elliott for the Foreman position. Mr. Adams testified credibly that five factors were used in evaluating the candidates, and that Mr. Elliott ranked higher than the plaintiff in each of the five areas. Particularly compelling is the fact that Mr. Elliott had ten years of experience supervising ten or more sheetmetal mechanics, while plaintiff had only five years of experience supervising one employee in the sheetmetal trade and other experience supervising laborers and storekeepers. In addition, Mr. Adams testified credibly that Mr. Elliott's knowledge of the operation of the Sheetmetal Shop and its interrelationship with the Office of Plant Services, as demonstrated during his personal interview, was superior to that of the plaintiff, as demonstrated in his personal interview.
11. Moreover, the evidence is clear that Mr. Adams did not discriminate against blacks in selections for promotions to supervisory positions. Mr. Adams selected a minority candidate in one of two instances in which minority candidates were referred to him by the Office of Personnel. In addition, Mr. Botts, plaintiff's witness, testified that his promotions to the supervisory level would have had to be approved by Mr. Adams.
12. The alleged differences in training opportunities and assignments cited by the plaintiff were insufficient to explain the differences in the respective abilities of the plaintiff and Mr. Elliott, given plaintiff's nineteen-year tenure as a journeyman at the Smithsonian Institution. Further, the assessment of Mr. Howze as being relatively slow in the performance of his job as compared with his fellow workers, often away from the worksite, and a less capable worker than Mr. Elliott, was corroborated by plaintiff's own witness, Mr. William Hawkins.
13. Moreover, there was no proximate relationship between the alleged denial of training and assignments and plaintiff's nonselection for the Foreman position. Neither knowledge of how to operate the cherrypicker machine nor of timekeeping was considered by Mr. Adams in making the selection. Further, both the plaintiff and Mr. Elliott received full credit for their entire tenure at the Smithsonian Institution.
14. Mr. Adams' selection of Mr. Elliott for the Foreman position was further supported by the admissions made by plaintiff's witness, Mr. Hawkins, in his affidavit and testimony at the administrative hearing. Mr. Hawkins stated unequivocally that Mr. Elliott's work performance was superior to that of the plaintiff and that Mr. Elliott was the best person for the Foreman job.
14. Plaintiff testified that he was subjected to hazing and inappropriate racial remarks during his employment in the Sheetmetal Shop. There is conflicting evidence on this issue. In any event, even assuming that these actions occurred, the plaintiff did not establish a proximate relationship between this alleged treatment and the promotion at issue.
15. Plaintiff failed to present evidence to support his allegation that Mr. Adams' reasons for selecting Mr. Elliott were pretextual.
16. Based on the entire record herein, and specifically because of defendant's articulation of legitimate, nondiscriminatory reasons for plaintiff's nonselection which were not shown to be pretextual, the plaintiff has failed to prove by a preponderance of the evidence that this nonselection for the position of Foreman of the Sheetmetal Shop resulted from race discrimination.
Date: June 28, 1988
ORDER - June 29, 1988, Filed
On March 30, 1988, at the conclusion of the evidence at trial, defendant moved for summary judgment. For reasons stated from the bench and recited in the Findings of Fact and Conclusions of Law filed herewith, it is this 28th day of June, 1988, hereby
ORDERED: that defendant's motion for summary judgment should be and is hereby GRANTED; and it is further
ORDERED: that the complaint should be and is hereby DISMISSED.