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CSICSERI v. BOWSHER

September 15, 1994

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



The opinion of the court was delivered by: OLIVER GASCH

 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

 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.

 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 ...


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