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SEVER v. DEPARTMENT OF COMMER.

March 31, 1993

BRUCE B. SEVER, Plaintiff,
v.
DEPARTMENT OF COMMERCE, Defendant.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Plaintiff Bruce B. Sever brought this action pursuant to the Age Discrimination in Employment Act ("ADEA"), codified at 29 U.S.C. ยง 633a, alleging that Mr. Sever was improperly terminated on the basis of his age and retaliated against for filing two Equal Opportunity Office ("EEO") complaints.... In addition, Mr. Sever appeals the Merit Systems Protection Board's ("the MSPB") finding of no discrimination as either arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence.... Defendant, in contrast, maintains that Mr. Sever was terminated because of unsatisfactory performance, and further that the Board's decision should be upheld as supported by substantial evidence and not arbitrary and capricious.

 Upon consideration of the record and evidence introduced at the bench trial, including the testimony of witnesses whose credibility, demeanor, and behavior the Court has had the opportunity to evaluate, judgment is entered in favor of the defendant and against the plaintiff for the reasons stated below.

 I. FINDINGS OF FACT

 A. Background

 At the time the discrimination is alleged to have occurred, Mr. Sever, a white male, born June 1, 1931, worked as an International Trade Specialist ("ITS") in the Office of Canada ("OOC") in the Department of Commerce ("DOC").... On November 17, 1989, when Mr. Sever's employment was terminated, he held a GS-12 classification, a rating he first attained in 1970.

 Almost thirty years before he was removed from his job at the DOC, Mr. Sever began his career in 1961 at the DOC as an international economist and "desk officer" or "country specialist" for the International Trade Administration.... During his tenure at the DOC, Mr. Sever acted as a country specialist for Thailand, the Caribbean, various South American countries, and Canada. In 1983, he was transferred to the OOC, but was initially assigned to issues concerning the Caribbean sector of OOC.... Several years later in 1985, plaintiff began to work exclusively with Canadian issues.

 From 1983 until October 1, 1987 when he retired, Thomas Brewer, the Director of OOC (born 1934), acted as plaintiff's first-line supervisor.... William Cavitt (born in 1936) then became the Director of OOC and was technically Mr. Sever's first-line supervisor.... However, because Mr. Cavitt was heavily involved in the Free Trade Act ("FTA") negotiations, he delegated much of his supervisory duties to Kenneth Fernandez (born in 1930), who was subsequently promoted to a supervisory position.... Ann Hughes (born in 1938), the Deputy Assistant Secretary for the Western Hemisphere was Mr. Sever's second-line supervisor until March 1988.

 In 1986, the DOC experienced a budget crisis resulting from the Gramm-Rudman Act, and as a result, OOC was asked to determine whether any of its employees who were eligible to retire, were interested in doing so.... A list of OOC employees eligible for retirement was distributed, which list contained plaintiff, Mr. Brewer, Mr. Fernandez and Randy Mye.... A meeting was held between Mr. Brewer and the other employees on the list, at which time, Mr. Brewer attempted to ascertain if anyone wished to retire. All present, including Mr. Sever, informed Mr. Brewer that they did not wish to retire. *fn1" Several times during the next few months, Mr. Brewer checked with the employees on the list to see if there had been any change in their plans.... After each individual responded negatively, Mr. Brewer terminated the inquiry.... At approximately the same time, in October 1986, William Cavitt, Ms. Hughes' deputy, distributed a memorandum to her International Economic Policy ("IEP") staff, stating that "Pressure is still on to get eligible folks to retire voluntarily in order to avoid possible RIFS [reduction in force].... TD and FCS in much worse shape than IEP." Plaintiff's Exhibit 2A.

 B. Plaintiff's Job and Job Performance at OOC

 The "Position Description" for Mr. Sever's job states that, as a general matter, an ITS, GS-12, is required to

 
perform research and analysis, and to provide reports, advice and consultations regarding the interplay of international trade policies between the U.S. and Canada and their major trading partners.... The incumbent must author reports on the results of his/her research for use by senior policy makers.... The position also requires the incumbent to counsel and assist the U.S. private sector in exporting to and investing in Canada.

 Plaintiff's Exhibit 1, at 102.... The work requires "considerable initiative and originality to adapt, extend, alter, and/or apply these guidelines to work studies and projects of considerable breadth." Id. at 105.... In addition, the position description states that job requires "conceptualization of large or complex problems with few precedents and numerous variables.... Analysis often requires estimates because of the lack of specific country data." Id.

 Ms. Hughes and Mr. Cavitt testified that in the spring of 1986, the FTA negotiations with Canada began to encompass a significant amount of OOC's time, fundamentally changing the nature of the work of OOC, as OOC began to provide assistance in the bilateral trade negotiations between the United States and Canada.... As a consequence of this change, the responsibilities of OOC likewise changed from essentially commercial activities to trade policy analysis and formulation, often requiring demanding deadlines.... Despite the expanded need for analysis, Mr. Cavitt stated that as a result of a determination that plaintiff could not adequately perform these increased duties, Mr. Sever's duties were limited to primarily business counseling.... For example, during the FTA negotiations and while Mr. Sever was working essentially with Caribbean countries at OOC, his 1984 - 1985 performance evaluation contained the comment that:

 
In accomplishing these and other policy objectives and assignments, Mr. Sever tends to react rather than to initiate action.... He seeks policy guidance from above, rather that [sic] attempting to develop the policy guidance to be recommended.... This conceptual problem of his role in the policy-making process makes it more difficult ...

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