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CSICSERI v. BOWSHER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


September 15, 1994

ANTHONY M. CSICSERI, et al., Plaintiffs,
v.
CHARLES A. BOWSHER, Defendant.

The opinion of the court was delivered by: OLIVER GASCH

MEMORANDUM

 This Court held a trial on January 21, 24, 25, 26, 27 and 28, 1994, concerning allegations of age discrimination at the General Accounting Office ("GAO"), which defendant Charles A. Bowsher heads as Comptroller General of the United States. Plaintiffs, all GS-15 ("Band III") employees older than 50, allege that they were passed over for selection to the Executive Candidate Development Program ("ECDP") in favor of younger candidates. The ECDP is the most common route of entry into the GAO's Senior Executive Service ("SES").

 Plaintiffs also allege that other routes into the SES were denied them because of their age. Finally, the GAO addresses, although plaintiffs did not raise, a disparate impact claim. Such claims arise when an employment practice is neutral on its face but discriminatory in its impact.

 Plaintiffs are all excellent GAO employees with long government careers about which they can be justifiably proud. The SES, however, is not the next step on the employment ladder for all those qualified as GS-15's. Rather, the SES represents a significant departure from their previous experience and a marked elevation in responsibility. Only a fraction of ostensibly qualified GS-15 or Band III employees will ever be promoted to the SES through the ECDP or otherwise. These promotions are of necessity reserved for those truly exceptional employees with sterling records and great potential.

 As discussed at length in the opinion that follows, each plaintiff's employment record and the testimony of their supervisors at the GAO indicate that there are legitimate non-discriminatory reasons why they were not selected for the ECDP and promoted to the SES. The statistical evidence further supports the GAO's contention that its ECDP and SES selection process is age neutral.

 I. EVIDENTIARY RECORD

 The record derives from the trial testimony and the exhibits received in evidence at trial. The trial testimony is delineated as follows: Tr. Vol. I - January 21, 1994; Tr. Vol. II - January 24, 1994; Tr. Vol. III - January 25, 1994; Tr. Vol. IV - January 26, 1994; Tr. Vol. V - January 27, 1994; and Tr. Vol. VI - January 28, 1994. The exhibits will be referred to as Pl. Ex. or Def. Ex. .

 Based on this evidence and in accordance with Federal Rule of Civil Procedure 52(a), the Court makes the following findings of fact and conclusions of law:

 II. FINDINGS OF FACT

 A. The Parties

 1. Defendant Charles A. Bowsher is the Comptroller General of the United States. As such, he is head of the GAO. Tr. Vol. II 183.

 2. The GAO, where all plaintiffs were employed at the time of the events giving rise to this suit, is an agency of Congress employing approximately 4,600 people. What began as a mere voucher checking organization has grown into an auditing and evaluating agency that investigates and evaluates the efficacy of a wide range of government programs. Acting on congressional requests, the GAO issues approximately 1,000 reports per year and its representatives testify before Congress in excess of 200 times per year. Tr. Vol. II 234-36.

 3. The GAO is divided into four program divisions and two technical divisions. The program divisions are General Government, Human Resources, National Security and International Affairs and Resources, Community and Economic Development. The technical divisions are Program, Evaluation and Methodology and Accounting and Information Management. *fn1" At the head of each of these divisions is an Assistant Comptroller General who is a member of the SES. The Assistant Comptroller Generals report directly to the Comptroller General. Def. Ex. 1.

 4. The divisions are divided into approximately 36 issue areas designed to cover the entire federal government. Issue areas are headed by Directors with some areas having Associate Directors on their staffs as well. The Directors and Associate Directors are also members of the SES who report to the applicable Assistant Comptroller General. Tr. Vol. II 241, 247.

 5. Directors and Associate Directors oversee 50-60 audits and evaluations at any given time. They are responsible for the presentation and preparation of congressional testimony. They also represent the GAO in meetings with members of Congress and their staffs, other federal agencies and the private sector. Tr. Vol. I 179; Tr. Vol. II 235, 238, 241-42, 245; Tr. Vol. V 897.

 6. Directly below the Directors and Associate Directors are Assistant Directors who are Band III or GS-15 employees. *fn2" Assistant Directors supervise the staff actually conducting the audits and investigations. Tr. Vol. VI 967, 970.

 7. Plaintiff Anthony Csicseri began his government service in 1953 with the Air Force, where he became an expert in computers and electronics. He remained with the Air Force until 1964 when he transferred to the Army. Mr. Csicseri retired from the military in 1972 with the rank of Chief Warrant Officer W-2. During that period, Mr. Csicseri earned a college degree in economics. Tr. Vol. II 287-90.

 8. Immediately after leaving the military, Mr. Csicseri joined the GAO in its Cincinnati regional field office as a GS-12. He began as a computer specialist but soon became an evaluator. Mr. Csicseri remained with the Cincinnati office until 1979. He then came to Washington where he was assigned to the Accounting and Financial Management Division until 1984. From 1984 until his retirement in 1993, *fn3" he was with the Information Management and Technology Division. During this time, Mr. Csicseri did two stints on Capitol Hill. He was detailed to the Senate Finance Committee in 1979-1980, the House Environment, Energy, and Natural Resources Subcommittee from August 1988 to June 1990, and from June 1990 to June 1991, he was detailed to the House Subcommittee on Legislation and National Security. Mr. Csicseri was promoted to GS-15 in 1981. Tr. Vol. II 285-88, 291, 315, 336, 362; Tr. Vol. V 847. Pl. Ex. 30.

 9. Plaintiff Jack D. Kearns came to the GAO in 1973 from the United States Army Computer Systems Command, where he was a computer specialist. Prior to his civilian employment with the Army, Mr. Kearns worked on Capitol Hill serving as a press corps liaison in the House periodical gallery. Mr. Kearns also earned his college degree in business administration and computer science in 1973. Tr. Vol. II 342-43.

 10. During his entire 20 year tenure at the GAO, Mr. Kearns was assigned to one division, the Accounting and Financial Management Division, where he rose to the rank of GS-15 in 1979. Mr. Kearns was designated a computer specialist until 1983. From 1983 until 1987 he was an evaluator, and from 1987 to 1993, he was a supervisory computer specialist. Mr. Kearns was detailed to the Senate Select Committee on Indian Affairs for most of 1988. He took advantage of the early retirement program and left the GAO in December 1993. Tr. Vol. II 344, 350-52, 362.

 11. Plaintiff Julius S. Brown entered the Army after graduating from college in 1953. After 20 years of service in the Quartermasters Corps, Mr. Brown retired from the Army a Lieutenant Colonel and entered the GAO as a GS-12 in 1973. Mr. Brown was first assigned to the Logistical Communications Command as a management analyst, a job title later changed to evaluator. Tr. Vol. II 370-72.

 12. In 1978 he was reassigned to the General Service and Controller Division where he remained until 1986. Mr. Brown achieved GS-15 in 1981. During that period, Mr. Brown was Director of the Office of Publishing. In 1986, Mr. Brown was moved to the National Security and International Affairs Division ("NSIAD"). He remained with that division until 1993, when he too took advantage of the GAO early retirement option. Tr. Vol. II 376-77, 384; Tr. Vol. III 396, 398.

 13. Plaintiff Manohar Singh came to the GAO in 1976, as a GS-14, Supervisory General Engineer, after a number of government posts. Dr. Singh began his career in 1957 or 1958 with the District of Columbia government. He then transferred to the Army Corps of Engineers as a civilian employee. He next worked for the Commonwealth of Pennsylvania as a Supervisory Hydraulic Engineer, returning to the Army Corps of Engineers three years later. Dr. Singh then switched services, working for the Navy Facilities Engineering Command and finally for the Postal Service as a Supervisory General Engineer. Tr. Vol. III 403-07.

 14. At the GAO, Dr. Singh was assigned to the Procurement System Acquisition Division as a Supervisory General Engineer. In 1982 or 1983, he transferred to the Resources Community and Economic Division, where he remains today. Tr. Vol. III 404, 407.

 15. Dr. Singh holds a bachelor's and master's degree in engineering, as well as a Doctor of Science degree. He is a Registered Professional Engineer. Dr. Singh was promoted to GS-15 in 1984. Tr. Vol. III 403, 428.

 16. Plaintiff Robert A. Jaxel began his federal career with the Census Bureau in 1961, moving in 1967 to the Federal Aviation Administration. He returned to the Census Bureau in 1968, moving to the Department of Commerce, Bureau of Domestic and International Commerce, in 1969. In 1972 he transferred within the Department to the National Technical Information Service. Mr. Jaxel joined the GAO in 1974. Mr. Jaxel holds a bachelor's and master's degree in Economics, and completed additional graduate work at the University of Pennsylvania and the War College. Tr. Vol. III 454-58.

 17. At the GAO, Mr. Jaxel was assigned to the Financial and General Management Studies Division as an evaluator. In this division, he made GS-15 in 1977. In 1983 he went to the Accounting and Financial Management Division. From 1984 to 1986, Mr. Jaxel worked as a report reviewer, first in the Office of Quality Assurance and then in the National Security and International Affairs Division. Mr. Jaxel then remained with NSIAD as a group director, running audits. In January 1988, Mr. Jaxel went to the Office of Affirmative Action Plans to work on the Equal Promotion Review Program. This program sought to investigate racial discrimination in promotions within Bands I, II, and III. In November 1988, He was detailed to the House Appropriations Committee. In 1990, Mr. Jaxel resigned from the GAO, with full reemployment rights, to keep his assignment with the Committee. In November 1993, Mr. Jaxel exercised his re-employment rights and returned to NSIAD at the GAO, where he was assigned to the Office of Special Investigations. Tr. Vol. III 447-48, 450, 461-65, 482-83.

 18. Plaintiff Frank S. Heard came to the GAO from the Army, where he was a telecommunications and computer expert. Although he was drafted into the service as a private, he rose to the rank of major before retiring in 1974. Between the Army and arriving at the GAO in 1975, Mr. Heard worked briefly for a private corporation and the General Services Administration. He received his college degree in 1978, while working at the GAO. Mr. Heard also completed some graduate work at the University of Pennsylvania and George Washington University. Tr. Vol. III 485-86, 489.

 19. Mr. Heard entered the GAO as a GS-12 Communications Specialist/Evaluator in the Logistics and Communications Division. He was promoted to a GS-15 in that division in 1982. Mr. Heard's communications group bounced from division to division although it remained intact. It landed in the Information Management and Technology Division in 1983. Mr. Heard was next assigned to the now abolished Washington Regional Office in 1985. In 1988, he was reassigned to the Resources, Community, Economic Division. From September 1988 to December 1989, Mr. Heard was detailed to the District of Columbia government. He returned to the GAO proper in 1990, where he was assigned to the National Security and International Affairs Division as a report reviewer. He currently serves on the planning staff of that division. Tr. Vol. II 499, 501, 509-12, 514.

 20. Unfortunately, plaintiff Ryan Yuille died on September 30, 1993. His heirs now carry on this lawsuit in his name. Mr. Yuille graduated from the Hampton Institute in 1952. Thereafter, he had a distinguished military career culminating in the rank of Lieutenant Colonel. Along the way, Mr. Yuille picked up a master's degree in Personnel Administration from George Washington University in 1969. Pl. Ex. 64.

 21. Mr. Yuille came to the GAO as a GS-15 in 1979. In 1980, he was appointed Deputy Director of the Civil Rights Office at the GAO. In February 1988, he was detailed to Howard University under the Intergovernmental Personnel Act. Mr. Yuille was still with Howard at the time of his death. Pl. Ex. 64.

 B. The SES Promotion Process At The GAO

 i. The SES

 22. The SES was established at the GAO on October 5, 1980, under the General Accounting Office Personnel Act of 1980. It replaced the supergrades GS-16 through GS-18. Def. Ex. 3.; Tr. Vol. II 197.

 23. The SES is made up of positions such as the General Counsel, Assistant Comptroller General, Director of Congressional Relations and Director of Internal Revenue. For the most part, however, SES members serve as Directors or Associate Directors for the issue areas. These executives oversee approximately 50-60 audits at a time. Def. Ex. 3; Tr. Vol. II 241-42.

 24. Of the approximately 4,600 GAO employees worldwide, only 145 are in the SES. This number is set by congressional act. Tr. Vol. II 236, 244.

 25. Out of necessity, mainstream members of the GAO SES must have demonstrated the ability to organize and oversee a number of employees, as well as to set up and run at the same time a number of complex evaluations. SES executives must also have superior verbal and written communication skills so that they can easily and effectively testify in congressional hearings. Tr. Vol. I 112, 144-45; Tr. Vol. II 235, 237, 244-45; Tr. Vol. VI 969.

 26. There are essentially three routes into the SES. They are noncompetitive limited term appointments, competitive Comptroller General career appointments and the ECDP. Approximately 80 per cent of those eventually rising to the SES come through the ECDP. Def. Ex. 4, 6(b), 6(c), 6(d); Tr. Vol. II 205-07, 223-24, 249-51.

 27. The ECDP came into existence in 1981. Its purpose was and continues to be to provide the GAO with a pool of GS-15 executive candidates capable of immediately filling positions within the SES. This program also serves a training function. It provides executive candidates with the knowledge and understanding of the organization that are required to perform successfully as an executive. Additionally, it ensures that the executive candidate continues to demonstrate excellence in managerial skills. Def. Ex. 3; Tr. Vol. I 41, 115-19, 132, 144, 151, 170; Tr. Vol. II 179, 186-87, 198-99.

 28. Once selected to the ECDP, the executive candidate receives intensive training to develop his management, technical and program skills. When this training period is completed, the candidate is eligible for a noncompetitive promotion to the ECDP. Def. Ex. 3.

 29. Since its inception in 1981, there have been 10 ECDP classes. On the average each class has had 10-12 members, which accounts for approximately two per cent of those eligible for promotion to the SES. Since 1981, 116 people have been taken into the ECDP. Of that number only approximately seven have failed to reach the SES. Tr. Vol. I 106; Tr. Vol. II 197-99, 240, 243-44.

 ii. Selection to the ECDP

 30. Ultimately, selection to the ECDP is somewhat subjective, being based on a comparison of nominees in any given year. Generally, the successful candidate has demonstrated exceptional skill in performing the GAO's main tasks, namely, managing several audits and evaluations at one time and showing outstanding conceptualization and communications skills which would enable them to testify effectively before Congress. Although the selection process remains to a certain extent a subjective and comparative assessment of a candidate's skills and accomplishments, there are, nevertheless, certain guidelines which form the basis for the decisions. These guidelines are by their nature flexible and are designed to reflect potential as much as past achievement. The guidelines are delineated in Def. Ex. 4(a) and 4(b) and were the focus of much attention at trial. Tr. Vol. I 112, 132, 145; 159-60; Tr. Vol. II 179, 211-12, 243-44; Tr. Vol. V 897; Tr. Vol. VI 969, 978-80.

 31. These criteria, which appear in the ECDP Job Opportunity Announcement under the title "Qualification Requirements", are as follows:

 

Knowledge of evaluation or auditing principles, techniques and practices, and the potential to organize and direct a comprehensive evaluation and/or audit program are required. Applicants meeting the above criteria will be further evaluated to determine the extent to which their experience, education and accomplishments are indicative of competence to accomplish the following six activity areas.

 

1. Integration of Internal and External Policy Issues. Understanding roles and relationships within an agency, the federal hierarchy, and the public at large; keeping abreast of key national agency-wide issues, priorities and values; and applying these factors in carrying out the responsibilities of the immediate work unit.

 

2. Organizational Preparation and Liaison. Establishing and maintaining relationships with key individuals and groups outside the immediate work unit, and serving as a spokesperson for the work unit and organization. Such activities would include preparing and/or presenting effective briefings, speeches, congressional testimony, interunit staff meetings, etc.

 

3. Direction and Guidance of Programs, Projects, or Policy Development. Understanding broad policy guidance and priorities, designing responsible plans and programs, and establishing the necessary structure and procedures for carrying them out. Necessary capabilities include: effective long-term and short-term planning, information gathering and analysis, and scheduling and monitoring progress of the work.

 

4. Resource Acquisition and Administration Principles and procedures for obtaining and allocating the resources needed to implement policies and programs, including: a) staff planning and budgeting techniques and b) equitable work force recruitment and selection procedures.

 

5. Development and Utilization of Human Resources. Assuring that people are appropriately employed and dealt with fairly and equitably. These include: assessing individuals' capabilities and needs and assigning appropriate work in response, providing career development opportunities, establishing clear performance standards and accurate performance appraisals, and adhering to governmentwide EEO and other personal utilization programs.

 

6. Review of Implementation and Results. Employing program review and evaluation techniques to assure that plans are being implemented and adjusted as necessary and that the appropriate results are being achieved.

 Def. Ex. 4(a), 4(b).

 32. As indicated above, the ECDP application process begins with a job announcement. Applicants are limited to GS-15, Band III or employees with like rank and responsibility. In addition to GAO employees, applications are accepted from outside candidates. However, because the issue before the Court concerns only internal selections to the ECDP, it will not delve into the selection process for non-GAO employees. Def. Ex. 4; Tr. Vol. I 46, 49, 126; Tr. Vol. II 214.

 33. Interested GAO GS-15's submit a memorandum to their respective division or unit heads. The unit heads then typically consult with the applicant's supervisors in an effort to determine which applicants best meet the criteria enumerated in P 31. Of those GS-15's eligible, most do not apply. And, of those who do apply, only about half or sometimes a third receive their unit head's nomination. Pl. Ex. 28; Def. Ex. 4, 4(a), 4(b), 8, 25-28, 33; Tr. Vol. I 46, 50, 120, 123-24, 128-34, 157-58, 163-64; Tr. Vol. II 243; Tr. Vol. IV 722, 733-34, 752-53; Tr. Vol. V 843-44; 893-96, 915-18; Tr. Vol. VI 969-76, 978-80, 1008.

 34. Those nominated by their unit heads are then passed on to the Qualifications and Performance Review Board ("Q&PRB") along with their SF-171's, GAO Form 570's as well as the nominee's supervisor's "Appraisal of Candidate Performance and Potential." The Q&PRB has six or seven members, with each being appointed by the Comptroller General and serving two year staggered non-renewable terms. All members of the Q&PRB are SES and are chosen from throughout the GAO. Comprising the Board are at least one Division Head, one Regional Manager, an Issue Area Director, a Planning and Reporting Director and a Director of Operations. Pl. Ex. 28; Def. Ex. 3, 10-22, 25-28, 33; Tr. Vol. I 50, 164.

 35. The Q&PRB reviews each applicant's paperwork and scores that person's qualifications on a scale of 1, lowest, to 5, highest, in each of the six categories set forth in P 31. Each applicant is given an overall score, and then a composite score is also calculated. Pl. Ex. 28; Def. Ex. 3, 4, 34; Tr. Vol. I 50, 157-58, 160, 164-65.

 36. Each Q&PRB member is then assigned one or more applicants on whose qualifications they become knowledgeable. At a meeting of the full Q&PRB, that member would lead a discussion concerning the applicant's qualifications and potential. Also, the applicant's supervisor or unit head usually appears before the Board to discuss his nominees. After this meeting, the Q&PRB makes adjustments, if necessary, to the applicant's score, and it arrives at a final overall composite score. Pl. Ex. 28, Def. Ex. 3, 4, 34; Tr. Vol. I 50-53, 157-58, 160, 164, 165.

 37. The Q&PRB sends what it determines to be the top 50% of the applicants, broken down into quartiles, on to the Executive Resources Board ("ERB"). The membership of the ERB is chosen by the Comptroller General. It consists of certain ex officio members as well as those personally appointed by the Comptroller General. They are all senior SES officials, including a number of Assistant Comptroller Generals as well as the General Counsel. The Chairman of the ERB throughout the relevant time period was Milton Socolar, the Special Assistant to the Comptroller General, the number two person at the GAO. Def. Ex. 3, 24; Tr. Vol. I 58-59, 118-19, 162-65; Tr. Vol. VI 994-97.

 38. The Q&PRB was eliminated in 1990, when it was determined that the ERB could perform the Q&PRB's role as well as its own. Pl. Ex. 28; Tr. Vol. I 163.

 39. Each member of the ERB considers a candidate's SF-171 and other paperwork, the comments of his unit head and, until 1991, the recommendation of the Q&PRB. *fn4" Like the Q&PRB, the ERB scores the candidate, on a scale of 1-5, in each of the criteria enumerated in P 31. The overall rating of the candidate is then factored in to create a composite score. Pl. Ex. 28; Tr. Vol. I 105, 121, 161-62, 165-66; Tr. Vol. II 194.

 40. Typically, two ERB members interview each candidate using a predetermined set of questions. They then report the results of the meeting to the entire ERB. At this stage, the applicant's unit head is given an opportunity to address the ERB. Pl. Ex. 28; Tr. Vol. I 142, 166-67; Tr. Vol. II 194.

 41. Each member of the ERB arrives at a final score for each applicant and from that, a final composite score is calculated. Based on these scores, the ERB forwards a list of candidates, along with the minutes of the ERB, to the Comptroller General. The Comptroller General then discusses the nominee with the Chairman of the ERB, the Assistant Comptroller General for Operations and other individuals who can contribute to the decision, such as the candidate's unit head. Pl. Ex. 28; Tr. Vol. I 124, 143, 162; Tr. Vol. II 190-93, 203, 205, 245.

 42. The final decision on who wins a spot in the ECDP is the Comptroller General's. Normally, he selects all of the nominees whom the ERB forwards. On occasion, however, he has selected slightly more or slightly less. In any event, the Comptroller General is free to place anyone in the ECDP whether or not they participated in, or were eliminated during, the nomination process. The Comptroller General, however, has exercised this power sparingly over the years. Pl. Ex. 28; Tr. Vol. I 121-24, 143; Tr. Vol. II 189-90, 203, 244-45, 247-48.

 C. Plaintiffs' ECDP Candidacies

 43. Plaintiff Csicseri applied for his division's nomination to the ECDP in 1982 (81-14A), *fn5" 1984 (84-3), 1985 (85-4), 1986 (86-2), 1987 (87-2), 1988 (88-1), and 1990 (90-1). He received his division's nomination in 1982, 1984 and 1985. In 1984 and 1985, he was referred to the ERB. The ERB did not forward his name to the Comptroller General on either occasion. Pl. Ex. 28, 29; Def. Ex. 4-6; Tr. Vol. II 298-99; Tr. Vol. VI 843, 848, 853, 855.

 44. There is no question that Mr. Csicseri was highly competitive for a position in the ECDP. In addition to his achievements enumerated in PP 7-8, Mr. Csicseri's performance ratings were for the most part excellent. He received Certificates of Merit, Certificates of Accomplishment, Outstanding Achievement Awards, *fn6" and numerous letters of recommendation from congressmen, senators and Capitol Hill staff. Pl. Ex. 30-34.

 45. Nevertheless, there are numerous non-discriminatory reasons why Mr. Csicseri was not taken into the ECDP and promoted to the SES. His supervisors expressed legitimate concern over the depth and complexity of his GAO experience. Although an excellent employee, they believed that Mr. Csicseri did not favorably compare to other ECDP candidates in the breadth and quality of his experience in managing complex audits or evaluations, his knowledge of the GAO's institutional goals and his ability to represent the agency before high level government officials and the Congress. Also mentioned were Mr. Csicseri's somewhat inadequate writing skills, his inability to complete a project in a timely manner and his difficulty with interpersonal relationships. Indeed, even when his nomination was forwarded to the ERB, the Q&PRB ranked him in the lower two quartiles. Pl. Ex. 28, 30-34, 75-79; Def. Ex. 4, 24, 28; Tr. Vol. V 843-84; Tr. Vol. VI 996-97.

 46. Mr. Csicseri's age was not a factor in the GAO's decision not to select him to the ECDP or to promote him to the SES. Pl. Ex. 28; Tr. Vol. I 121, 124, 142-145, 157-158, 160, 161, 164-165, 166-167, 176; Tr. Vol. II 190-194, 212, 260, 277-278.

 47. Jack Kearns applied for his division's nomination to the ECDP in 1985 (85-4), 1986 (86-2), 1987 (87-2), 1988 (88-1), 1990 (90-1) and 1991 (91-4). Defendant states that Mr. Kearns never received a division nomination. Apparently, however, Mr. Kearns did receive a nomination in 1986, although he was never informed of his success. In any event, he never progressed beyond the Q&PRB. Pl. Ex. 28, 34; Def. Ex. 28; Tr. Vol. II 355; Tr. Vol. IV 739-42.

 48. Mr. Kearns, like his co-plaintiffs, was an excellent and valued GAO employee. His record contains accolades from within and without the GAO, including a Director's Award, a Special Commendation Award and letters of commendation from a congressman and a senator. Pl. Ex. 35, 36.

 49. This praise, well deserved though it is, does not entitle him to a position in the ECDP and the SES, as there are numerous nondiscriminatory reasons why Mr. Kearns was not promoted. It was the opinion of his division directors that his performance was not consistently of sufficient quality to warrant selection, and his performance evaluations did not compare favorably to others seeking promotion. Indeed, Mr. Kearns' performance appraisals show that he was most often evaluated as having "met expectations," which would equate with an average ranking. *fn7" Even Mr. Kearns himself admitted that his appraisals were not "exceptional across the board". Pl. Ex. 66-74. Tr. Vol. II 366; Tr. Vol. IV 739-42; Tr. Vol. V 779-80, 796-97.

 50. Mr. Kearns' lack of success in receiving a promotion to the ECDP or to the SES is not attributable to his age. Tr. Vol. V 909-10.

 51. Julius Brown, according to plaintiffs, applied for every ECDP class from 1982 until his retirement. Defendant states that Mr. Brown applied for the ECDP in 1982 (81-14A), 1984 (84-3), 1988 (88-1), 1990 (90-1) and 1991 (91-4). Nevertheless, both parties agree that Mr. Brown received his division's nomination only once, in 1984 (84-3). Def. Ex. 26; Tr. Vol. VI 990-91.

 52. From 1978 to 1986, Mr. Brown ran the Office of Publishing, at times called the Office of Administration and Publishing, where he supervised upwards of 100 employees. By all accounts, Mr. Brown did an exemplary job of running this office. Pl. Ex. 37, 38.

 53. In 1985, the Comptroller General decided to modernize and upgrade the publishing office and to create an SES position for the eventual chief of this office. Mr. Brown applied for this position which was a competitive career appointment, not a position filled through the ECDP. To head the revamped department, the GAO looked for someone with specialized technical experience in publication, design, graphics and electronic printing. The GAO ultimately hired Larry Rolfus, a member of the SES and the director of operations at the Bureau of Engraving and Printing. Mr. Rolfus had extensive prior experience with this type of high technology publishing operation. In short, Mr. Brown was not as qualified as Mr. Rolfus. Tr. Vol. I 97-98, 168; Tr. Vol. II 220-21.

 54. When Mr. Rolfus took over the reconstituted Office of Publishing, now called the Office of Publication and Communication, Mr. Brown went back to auditing, a task he had not performed since 1978 as a GS-13. As an auditor/evaluator, Mr. Brown met with some success, as indicated by letters of commendation from within and without the GAO. However, it does not appear that Mr. Brown's achievements were commensurate with selection to the ECDP and ultimately a position in the SES. Other group directors supervised four to seven audits at a time, while Mr. Brown typically supervised only one at a time. Additionally, there was some fairly substantial criticism concerning the Bath Iron Works audit which Mr. Brown oversaw. Pl. Ex. 38; Def. Ex. 24; Tr. Vol. II 389-91; Tr. Vol. IV 756; Tr. Vol. VI 985-87.

 55. Age was not a factor in Mr. Brown's not being selected to the SES, as head of the Office of Publication and Communication, nor in his not being selected to the ECDP and ultimately the SES. Tr. Vol. I 98; Tr. Vol. II 220-221; Tr. Vol. IV 759; Tr. Vol. VI 975-976, 993-998.

 56. Manohar Singh applied for the ECDP classes of 1986 (86-2), 1988 (88-1), 1990 (90-1) and 1991 (91-4). Dr. Singh never received his unit's nomination. Pl. Ex. 28, 29; Tr. Vol. III 430.

 57. The evidence suggests that Dr. Singh's contributions as an engineer were substantial. He received kudos from within the GAO, from Capitol Hill and from the private sector. In 1993 he received a Special Commendation Award and a pay increase for his work on a report covering "smart pig" technology to be used for the mechanized inspection of natural gas pipelines. Pl. Ex. 42-44; Tr. Vol. III 407-24.

 58. Being a successful engineer, a highly specialized field, does not automatically make one a successful auditor or executive candidate. Dr. Singh's division head, after consultation with Dr. Singh's immediate supervisors and other senior managers in the division, determined that Dr. Singh was not as well qualified as others who had applied from that division. Moreover, it was felt that Dr. Singh possessed deficient writing skills, had a problem translating technical material for a lay audience, and that he had an interpersonal relationship problem with his coworkers. These are two deficiencies which, when measured against the GAO's promotion criteria as enumerated in P 31, would prove fatal to any application. Furthermore, Dr. Singh was never an auditor/evaluator, which would further hamper his chances of promotion. Def. Ex. 4(a), 4(b); Tr. Vol. V 921, 923; Tr. Vol. VI 928-31.

 59. Dr. Singh alleges that his supervisors attempted to force him to retire. This pressure supposedly came from Herb McClure and Ken Mead, who inquired as to when Dr. Singh would retire, and asked him why he did not seem to want to retire. Mr. Mead also allegedly told Dr. Singh that as a specialist he had very little chance for promotion to the SES. Tr. Vol. III 432-33.

 60. Although the matters raised in P 59 certainly deal with age, questions concerning retirement by one's supervisors, who may have personnel and staffing concerns, do not necessarily indicate age bias. Furthermore, many people look forward to retirement, and asking someone why they do not take advantage of the availability of retirement may be nothing more than friendly conversation. While the final allegation dealing with specialists not making the SES is disturbing and, if true, a bad policy, it does not indicate age discrimination. In the final analysis, lack of executive potential, and not his age, kept Dr. Singh out of the ECDP and the SES. Tr. Vol. VI 932.

 61. Robert Jaxel applied for only the 1988 (88-1) and 1990 (90-1) ECDP classes. Neither time did he earn a nomination. Tr. Vol. III 481; Tr. Vol. V 771-72; Tr. Vol. VI 1024.

 62. Like the other plaintiffs, Mr. Jaxel was a solid GAO Band III employee but, not executive material. Mr. Jaxel's record does contain several accolades -- specifically, a letter of commendation from a congressman, a Director's Award, a Career Service Award, a Certificate of Appreciation and a Special Award From The Comptroller General. Most notably, Mr. Jaxel met with great success in his work with the Equal Promotion Review Board, which conducted an investigation into racial disparity in promotions within Bands I, II and III. Pl. Ex. 39, 40, 41; Tr. Vol. III 460-63.

 63. While Mr. Jaxel's record was certainly more than satisfactory, it was not exceptional, especially when evaluated against the ECDP hiring criteria enumerated in P 31. Furthermore, while other group directors typically ran four to seven audits at any given time, Mr. Jaxel usually ran only one, although he claims to have run three to five at a time. Also, he spent long periods on detail and had limited experience and accomplishments as a group director. And, as the promotion criteria indicates, the quality and quantity of such experience are important factors in the ECDP decision-making process. Moreover, Mr. Jaxel received a plethora of "met expectations" ratings from his superiors which, as discussed in footnote 6, is the middle of three possible rankings. He also received several "superiors", which is the fourth of five possible rankings under the new system. While these ratings from his superiors are solid, they are not stellar, and would not put Mr. Jaxel in the top percentage of Band III employees who are taken into the ECDP. Pl. Ex. 39; Def. Ex. 4(a), 4(b); Tr. Vol. III 460-63; Tr. Vol. V 771-72; 809-11; Tr. Vol. VI 981, 1025, 1031.

 64. Age was not a factor in Mr. Jaxel's failure to be chosen for the ECDP and promoted to the SES. Tr. Vol. V. 772; Tr. Vol. VI 1025.

 65. Frank Heard applied for the ECDP classes of 1984 (84-3), 1985 (85-4), 1986 (86-2), 1987 (87-2), 1988 (88-1) and 1990 (90-1). He received a division nomination every time he applied except in 1990. His nomination reached the ERB at least once. Plaintiffs say he reached the ERB in 1985 and 1986, while the GAO claims he reached it only in 1986. In any event, Mr. Heard's name was never passed on to the Comptroller General for appointment to the ECDP. Pl. Ex. 28, 29; Def. Ex. 6, 24; Tr. Vol. I 110-11; Tr. Vol. III 520-33; Tr. Vol. VI 990-92, 994-95.

 66. There is no question that Mr. Heard was an excellent GAO employee. He received two Certificates of Appreciation, two Certificates of Merit, an outstanding Achievement Award as well as several letters of commendation from supervisors and congressmen alike. Pl. Ex. 47, 48.

 67. Despite his exemplary performance, there is ample evidence to suggest that Mr. Heard was not part of that small group of GS-15 superstars chosen for the ECDP and ultimately the SES. His many excellent performance reviews are characterized with several ratings of "met expectations", where "exceeded expectations" was the highest grade, "superior", where "exceptional" was the highest grade, "exceeds fully successful", where "outstanding" was the top, or "average" or "high", where "outstanding" was the top grade. At times Mr. Heard received nothing but the highest rating, but often he received these lesser rankings. Pl. Ex. 48.

 68. Even when nominated, his superiors felt that Mr. Heard needed to improve in the areas of conceptualization, oral communication and organization. It was also felt that he had not had enough experience as a group director and that he did not quite match up to the other candidates in executive potential and leadership. Moreover, in the latter years when Mr. Heard became a report reviewer, he typically reviewed only one to three reports in a six-month period while others would review fifteen to twenty reports in the same period. This may or may not have to do with some administrative duties Mr. Heard shouldered, and the record does not indicate whether the other report reviewers had similar administrative burdens. Pl. Ex. 51-54; Tr. Vol. I 110; Tr. Vol. III 526, 540-41; Tr. Vol. IV 760-64; Tr. Vol. VI 990-92, 1012-15.

 69. Age was not a factor in the GAO's not promoting Mr. Heard to the ECDP and the SES. Tr. Vol. IV 764; Tr. Vol. VI 998.

  70. Ryan Yuille applied for his division's nomination to the ECDP in 1982 (81-14A), 1984 (84-3), 1985 (85-4), 1987 (87-2) and 1990 (90-1). His nomination was forwarded to the Q&PRB only once, in 1981. His nomination did not go forward to the ERB in that or any other year. Pl. Ex. 28, 29, 64; Def. Ex. 24; Tr. Vol. V 884-86.

  71. Mr. Yuille's performance was generally satisfactory, especially in the early 1980's. Thereafter, it trailed off according to his immediate supervisor, Alexander A. Silva. still, his record contains many letters of commendation from within and without the GAO. Also, and not of small note, it is clear from the record that Mr. Yuille was an outstanding member of the community. Thoughtful and caring, he stands as a role model for community involvement. Unfortunately, these desirable attributes which make one a good citizen do not necessarily make one a qualified executive. Pl. Ex. 64.

  72. Throughout his GAO career, Mr. Yuille's performance was rated as having "met expectations" on the three-tier system. In 1986, he received one ranking of "did not meet expectations". According to Mr. Silva, he failed properly to supervise the work of subordinates who were preparing employment discrimination decisions. These decisions did not present the issues clearly, concisely and logically, did not include sufficient facts and data to support the conclusions and did not include correct data and references to the file. A deficiency in supervisory skills would prove fatal to any person seeking promotion to an executive level. Moreover, Mr. Yuille, who was not an auditor in the classical GAO sense, did not demonstrate the skills or potential to organize and direct several large scale audits at one time. And, as indicated in the P 31 promotion criteria, such skills are a prerequisite for the ECDP. Pl. Ex. 64; Def. Ex. 30, 32; Tr. Vol. V 885, 886-88.

  73. In the final analysis, most of Mr. Yuille's professional success occurred prior to his joining the GAO, and his age played no role in his not being selected for the ECDP and the SES. Pl. Ex. 64; Tr. Vol. V 885-88.

  D. The Statistical Evidence

  Plaintiffs allege that, in addition to their individual cases of age discrimination, there is an invidious pattern of age discrimination at the GAO. Plaintiffs point to what they call the "inexorable zero" meaning that no one over the age of 50 has been selected for the ECDP, and very few of that age have been taken directly into the SES via other mechanisms. Both sides presented copious, contradictory and, at times, confusing expert statistical evidence hoping to establish or refute such a pattern of discrimination. The Court's findings on this evidence are as follows:

  74. Dr. Charles R. Mann, plaintiffs' expert, is an expert in the field of statistics. Tr. Vol. IV 571.

  75. Dr. Joan G. Haworth, defendant's expert, is an expert in the fields of labor economics, econometrics and statistics. Tr. Vol. IV 637, 638.

  76. The GAO provided data to both experts for ECDP classes 1981 through 1990. No information concerning applicants who failed to win their unit's nomination was available for ECDP classes 81-09 (1981), 81-14A (1982) and 84-03 (1984). There being no 1983 ECDP class, both experts began their analyses of unit nominations with 1985. The GAO also provided numbers concerning all those entering the SES, regardless of route, for the years 1984 through 1990. Pre-1984 numbers are, apparently, not available. Pl. Ex. 12; Def. Ex. 8.

  77. In performing his tests, Dr. Mann ran statistical analyses based upon two age groups. He compared the treatment of applicants under 40 to those over 40. Next, he compared the treatment of applicants under 40 to those over 50. The latter comparison leaves out all those applicants between the ages of 40 and 50. Pl. Ex. 12.

  78. Dr. Mann ran analyses for unit nominations, *fn8" the Q&PRB's recommendations to the ERB, the ERB's recommendations to the Comptroller General, the Comptroller General's ultimate selection to the ECDP and for all four stages of the process taken together. Pl. Ex. 12.

  79. For each of these stages, Dr. Mann performed a 2 x 2 contingency table analysis using the Fisher exact test *fn9" and a multiple pool extension, which is also referred to as an exact probability analysis. *fn10" From examining plaintiffs' exhibit 12, it would appear that Dr. Mann also used various permutations of the Chi-square test, *fn11" but rejected them because of the relatively small size of the sample pool. Pl. Ex. 12.

  80. In his lengthy testimony before this Court, Dr. Mann explained the procedure he used to draw his first set of conclusions with regard to the ECDP. The hypothesis he tested was that there is 'no difference between the treatment of older workers and younger ones.' This type of hypothesis is called a two-tailed hypothesis because, if the opposite were to be true, that the two groups were not treated the same, the statistician would not know whether the older or the younger workers fared better. In a one-tailed test, which Dr. Mann also used, the hypothesis would read something like, 'older workers are treated at least as well as younger workers.' That way, if the opposite were to be true, the statistician would know that the younger workers fared better. Tr. Vol. IV 573, 612.

  81. With either method, the statistician examines the data to evaluate the likelihood, or the probability, that the numbers he arrived at are substantially the same as he predicted if the original, or null, hypothesis were true. If the numbers do differ substantially, the statistician concludes that the opposite to the null hypothesis is true, namely, that older and younger workers are not treated equally, in the two-tail test, or that younger workers are treated better, in the one-tail test. The numerical discrepancy between the null hypothesis and the data reflects the probability of rejecting the null hypothesis when it is actually true. Tr. Vol. IV 574-75.

  82. Normally this discrepancy or probability rate is deemed to be legally significant if it is calculated at .05. Other ways of expressing this .05 value are 5%, 1 in 20 or 1.96 standard deviations which is commonly rounded and referred to as two standard deviations. *fn12" (The value 1.96 reflects a two-tail test. For a one-tail test, 1.645 is normally rounded to two standard deviations.) In essence, this means that there is a 1 in 20 chance that the statistical conclusions are wrong. Tr. Vol. IV 579.

   83. After performing a statistical analysis of the different stages of the ECDP process for each class, as well as an overall analysis for each class, Dr. Mann found statistically significant disparities between those over 40 and those under 40 in only 2 of 37 instances. Originally, Dr. Mann concluded that such a disparity existed in 3 of 37 instances, however, at trial he concluded that he had made an error and that such a disparity only existed in two instances. Those two instances were the Q&PRB's recommendation to the ERB in 1984 (84-03) and the ERB's recommendation to the Comptroller General in 1986 (86-02). Pl. Ex. 12; Tr. Vol. IV 611-15.

  84. Dr. Mann also ran these analyses for employees under the age of 40 versus those over the age of 50. He concluded that statistically significant disparities existed in the same three instances as described in P 83, above. On cross-examination he once again agreed that there was an error and, in reality, significant disparities existed in only two instances. The same two as described above. It was also pointed out that further errors had been made with respect to the ERB's recommendation in 86-02. While these errors do not invalidate Dr. Mann's conclusion, they certainly raise questions. Pl. Ex. 12, Tr. Vol. IV 611-15; 629-30.

  85. Also, the Court notes, and Dr. Mann concurred in his testimony, that 2 of 37 equals roughly 5%. While this 5% has a different mathematical significance than the 5% referred to in P 82, supra, it certainly does not indicate large scale discrimination even if Dr. Mann's conclusion is taken at face value. Tr. Vol. IV 613.

  86. Dr. Mann also used a multiple pool analysis for each phase of the ECDP selection process, as well as for the overall process, for those employees under 40 versus those over 40. Of the five analyses run, Dr. Mann concluded that significant statistical deviations occurred in two instances. These are selection of candidates by the ERB for the Comptroller General's consideration and the overall ECDP selection process. Pl. Ex. 12.

  87. In running the same five-stage multiple pool analysis for those employees under 40 versus those over 50, Dr. Mann concluded that statistical discrepancies of at least two standard deviations occurred in four out of the five steps analyzed. Only the analysis of the Comptroller General's consideration of those forwarded to him by the ERB was deemed statistically insignificant. Pl. Ex. 12.

  88. Defendant's expert, Dr. Haworth, also reviewed the available data for the eight ECDP classes between 1981 and 1990. She analyzed the data available for each step in the ECDP selection process except for the Comptroller General's consideration of the names sent to him from the ERB. Dr. Haworth excluded this final step because the Comptroller General, with a few statistically insignificant exceptions, appointed all those whom the ERB recommended. Dr. Haworth also performed an overall analysis of the final selection to the ECDP from all the nominated candidates, as well as all the applicants where possible. *fn13" For each rung along the ECDP selection ladder, Dr. Haworth evaluated the eight classes together. Thus, in effect, she performed a technique similar to Dr. Mann's pooling process. Dr. Haworth's methodology is discussed in the following paragraphs. Def. Ex. 8.

  89. As alluded to above, Dr. Haworth went beyond mere statistics in performing her analyses. She wanted to determine what factors, except for age as that was the ultimate question to be tested, were determinative in the decision-making process at each step of the ECDP selection system. She began by looking at various documents produced by the decision-making boards, such as the Q&PRB and the ERB, she examined the papers submitted by the candidates themselves, and she examined other GAO documents which she deemed relevant to her inquiry. Dr. Haworth also conducted extensive interviews of the promotion decision-makers. She asked them how these decisions were made, what factors were considered, how they went about the process, how they reviewed each individual candidate, et cetera. Tr. Vol. IV 640-41.

  90. Dr. Haworth used the information she gathered during this investigation to arrive at certain characteristics which she felt were statistically intrinsic to the decision-making process. These were: (1) level and field of education; (2) competitiveness of the particular ECDP class applied for; (3) office assignment, range of projects given that office; (4) experience; (5) occupation; (6) hire grade and years of GAO experience; and (7) prior applications. Pl. Ex. 65; Tr. Vol. IV 651-52.

  91. Dr. Haworth incorporated these characteristics into a multiple regression model, or more precisely, a subspecies of that model known as a logistical or logit equation which is used for yes or no type inquiries. *fn14" Dr. Haworth defines this process as the relationship between a candidate's being selected or not, and isolating the particular characteristics which caused that person to be selected or not. To do this, Dr. Haworth examined each applicant's particular characteristics at every stage in the ECDP process. By examining whether that candidate was successful or not, Dr. Haworth could determine whether those particular characteristics were a help or hindrance to the candidate. Pl. Ex. 65; Tr. Vol. IV 655-56, 687-97.

  92. When estimating the number of older applicants who should succeed at any given step in the process, Dr. Haworth factored in this logit regression which, in theory, should reduce the number of variables other than age which could account for older applicants' not being selected. This would give her ultimate analyses greater accuracy. Def. Ex. 8.; Tr. Vol. IV 652.

  93. Dr. Haworth tested her logit model and found it increased the predictive power of her tests between 2% and 6% for each factor considered, and it increased the predictive power up to 50% when all factors are taken out of the model. Using this logit model, her successful prediction rate was between 67% or 68% to 75%. Tr. Vol. IV 657-58.

  94. To arrive at her ultimate conclusions, Dr. Haworth took the number of applicants still in consideration at each stage in the process. As discussed above, she next adjusted for factors such as the applicant's education, occupation, office assignment, length of service and the number of times the applicant applied. Then, she determined the percentage of older applicants from that group who, statistically, should be successful in moving on to the next step in the process. Dr. Haworth next predicted the number of applicants who should be selected from the older group, 40 or over or 45 or over depending on the test, by multiplying the total number of applicants by the percentage of older applicants who, statistically, should be successful. She then compared the spread between the number her formula predicted and the actual number of older applicants selected. She calculated the standard deviation from that spread. Again, two standard deviations is the operative number. Def. Ex. 8; Tr. Vol. IV 659-60.

  95. Dr. Haworth concluded that there were no statistically significant instances of discrimination, defined as greater than two standard deviations, in either the analysis run at 40 or 45. The ECDP promotion process, in her opinion, is at every stage and in totality age neutral. Def. Ex. 8.

  96. Dr. Haworth and Dr. Mann also ran analyses for all promotions to the SES regardless of route for those under 40 versus those over 40. Dr. Haworth performed this test by taking the total number of GS-15 employees and determining what percentage of those employees are over the age of 40. Using the total number of people promoted to the SES in any given year, she next calculated the percentage of those promoted who should be 40 or older. She further distilled this into a hard number, for example, if 70% of the 10 entrants to the SES in any given year should, simply based on the population of GS-15's, be 40 or over, then 7 of the 10 promoted should be 40 or older. Dr. Haworth then compared the distilled predicted number with the actual number of those 40 or older who were promoted. As with her ECDP analysis, she compared the spread between these two numbers and calculated the number of standard deviations from those spreads. Def. Ex. 8; Tr. Vol. IV 642-44.

  97. Dr. Haworth ran this analysis for every year from 1984 to 1990. *fn15" Taking all of those years together, Dr. Haworth arrived at a standard deviation of -1.72. *fn16" This is less than 1.96 and, therefore, she concluded that the totality of hiring into the SES was age neutral. Def. Ex. 8.

  98. Dr. Mann used the same numbers and mathematical procedures as Dr. Haworth. However, he only ran his analysis for 1984 through 1987. Dr. Mann left out the years 1988-1990 because he felt that the GAO changed its hiring practices in 1987 as a result of this lawsuit. *fn17" To add those years, he believes, would taint his analysis. Pl. Ex. 14; Tr. Vol. IV 596-98, 668-69.

  99. Having isolated the years 1984-1987, Dr. Mann concluded that there was a standard deviation of -2.663. *fn18" This figure is statistically significant and would be evidence of age bias. Pl. Ex. 14.

  100. In the final analysis, it goes without saying that both experts engaged in mathematical acrobatics and statistical juggling. Nevertheless, for the reasons set forth in the following paragraphs, the Court finds that Dr. Haworth is the more credible witness. Likewise, the Court finds that her report is more credible and helpful in determining this difficult matter. See generally, Pl. Ex. 11, 12, 14; Def. Ex. 8, 9; Tr. Vol. IV 571-730.

  101. First, Dr. Mann made two errors in his non-pooled analysis of the ECDP classes. The first on class 81-14A and the second on class 86-02. While Dr. Mann admitted and corrected these errors in open court, and testified that they do not change his conclusion, they nevertheless cut into the persuasiveness of his overall analysis. Pl. Ex. 12; Tr. Vol. IV 611-15; 629-30. See also, PP 83-84, supra.

  102. Instead of performing an analysis for those under 50 versus those over 50, the age bracket in which plaintiffs allege that discrimination lies, Dr. Mann ran an analysis of those under 40 versus those over 50. This cuts out all those employees ages 40 to 49, who make up a large portion of GS-15's, the majority of those applying to the ECDP and the majority of those entering the SES. Tr. Vol. IV 607-10.

  103. Dr. Haworth also failed to run an analysis for those under 50 as opposed to those over 50. She instead ran an analysis for those under 45 versus those over 45 Dr. Haworth explained that there were so few candidates over the age of 50, between 5% and 8% for any given class, that it could be possible to choose none and still be within the realm of chance. Therefore, in order to see if the older members of the protected class were treated differently from the younger members, she chose a cut-off point of 45 so that she could increase her pool and come up with a more accurate result. This method seems more logical to the Court than Dr. Mann's excision of the majority of the affected employees. Tr. Vol. IV 650-51.

  104. The Court also notes that Dr. Mann uses a one-tail test in drawing his conclusions, while Dr. Haworth uses a two-tail test. Generally, in the District of Columbia Circuit, a two-tail test is preferred for these types of cases. However, in this case the analysis cannot end with that statement. There is little chance, from a facial review of the evidence, that applicants over the age of 50 were treated statistically better, as opposed to statistically equal or worse, than those under the age of 50, or for that matter, 40. Therefore, a one-tail test is not without merit. Nevertheless, there is an excellent chance that applicants over the age of 40 were treated statistically better than those under the age of 40. In that situation, a two-tail test is preferred. Thus, while the Court does not discredit the one-tail test which Dr. Mann used, it does note that it would have been preferable had he used a two-tail test, as did Dr. Haworth, at least for the tests comparing those over 40 with those under 40. Tr. Vol. IV 612, 662-63; see also, PP 80-81 (defining one and two-tail testing); Palmer, 815 F.2d at 92-96 (expressing this Circuit's preference of two-tail tests).

  105. Dr. Mann places great emphasis on his multiple pool ECDP analysis. The Court believes he is correct in stating that when one increases the size of the sample, there should be greater accuracy in the final statistical analysis. However, aggregation of data is not without its dangers. Tr. Vol. IV 585.

  106. For example, let us assume a statistician is running an aggregate analysis to determine if there is sex bias in graduate admissions at a university. Department A has an overall acceptance rate of 50%, which is the same for men and women. Department B has an overall acceptance rate of 10%, which is the same for men and women. If 80 men and 20 women apply to Department A, while 20 men and 80 women apply to Department B, then of the 100 men who applied 42 will be accepted and of the 100 women, only 18 will be accepted. The odds ratio equals 1 if each department is taken separately. However, the odds ratio is 3.7 if they are aggregated. Thus, aggregation can create the appearance of discrimination when in reality none exists. *fn19" See M. Finkelstein and B. Levin, Statistics for Lawyers 242 n.1 (Springer-Verlag 1990).

  107. The above example highlights but one of many variables which can throw off an aggregate analysis. Therefore, when formulating a test using aggregate data, such as multiple pools, certain steps can be taken to try to ensure that the pools are not statistically skewed by some unforeseen variable. It appears that Dr. Mann did try to safeguard his data to a certain extent by using some type of multivariant or regression type analysis. But, exactly what steps Dr. Mann took, what variables he considered and how far he went, cannot be gleaned from his testimony or report. *fn20" We do know, however, that Dr. Mann, unlike Dr. Haworth, did not engage in a lengthy study of the promotion process at the GAO prior to embarking upon his analyses. Tr. Vol. IV 585-87, 605-06.

  108. Therefore, in this Court's opinion, Dr. Mann's methodology in his ECDP analyses is not as persuasive as Dr. Haworth's. Granted, under regression models, there is a danger that the variables will be chosen in order to influence the outcome or that the inclusion of a particular variable may be inherently invalid. *fn21" While it is inevitable that people will disagree over the inclusion or exclusion of certain variables, it appears that Dr. Haworth was careful and accurate in her choice of variables, or characteristics as she calls them, and none appear to be inherently invalid. Furthermore, the Court does not know what, if any, variables Dr. Mann used, and, therefore, does not have a basis to judge them for good or for ill. See P 90, supra and Pl. Ex. 65 for a full list of Dr. Haworth's variables. See also generally, F. Fisher, Multiple Regression in Legal Proceedings, 80 Col. Law Rev. 702 (1980).

  109. In the end, Dr. Haworth's variables, chosen after much research and consultation at the GAO, provide the Court with a broader, more in-depth and, ultimately, more accurate analysis of the ECDP selection process at the GAO. Tr. Vol. IV 640-41.

  110. Nevertheless, plaintiffs complain that Dr. Haworth's variables are not the same as the oft touted six qualifications appearing on Def. Ex. 4(a) and 4(b). While the qualifications and Dr. Haworth's variables are not identical, they are, nevertheless, compatible and consistent. Furthermore, the job announcements from which those six qualifications are drawn state that those qualifications will be measured within the context of an applicant's auditing skills, experience, education and accomplishments. And, these last four enumerated factors are, in fact, almost identical with the variables used by Dr. Haworth. Pl. Ex. 65; Def. Ex. 4(a), 4(b); see also, P 31, supra.

  111. Turning to the SES as a whole, plaintiffs criticize Dr. Haworth for her incorporation of the years 1988-1990 into her analysis of "Entry into SES by Age Group". Plaintiffs believe that the GAO took steps to amend their discriminatory ways with the filing of this lawsuit in 1988 and thus, Dr. Haworth's incorporation of those years is biased. Tr. Vol. IV 667-70. 112. In reality, the difference between the actual and predicted promotions within the protected age group does not differ that greatly pre- and post-lawsuit. The spread is as follows: 1984 -.09 1985 -3.5 1986 -1.1 1987 -2.7 ////////-- 1988 1.7 1989 -.02 1990 0.0

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