United States District Court, District of Columbia
January 8, 2001
DON W. CROCKETT, PLAINTIFF,
BILL RICHARDSON, SECRETARY OF ENERGY, DEFENDANT.
The opinion of the court was delivered by: Huvelle, District Judge.
This case is brought under the Age Discrimination in Employment Act,
29 U.S.C. § 621-634 ("ADEA"). Plaintiff alleges that he was
subjected to unlawful age discrimination when he was not promoted to the
Senior Executive Service ("SES") position of Assistant General Counsel
for Contractor Litigation by Robert Nordhaus, the then General Counsel
of the Department of Energy ("DOE"). At the time that plaintiff was
passed over for the job, he was fifty-eight years old and had worked at
DOE since 1978. At trial defendant contended that DOE General Counsel
Nordhaus, who was fifty-nine at the time, was not motivated by any
discriminatory animus and that he chose Gary Stern, who was thirty-six
years old at the time, because he believed that Stern was better
qualified for the job.
The case was tried before this court on November 20-23, 2000. The
court heard testimony from twelve witnesses, including many past and
present employees of DOE's Office of General Counsel. Based on the
evidence heard and exhibits submitted during the trial, the Proposed
Findings of Fact and Conclusions submitted by both parties, the
applicable case law, and the entire record, the court makes the
following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
A. Plaintiff's Legal Career
1. Don Crockett was born on January 16, 1938. After graduating from
Harvard Law School in 1966, he practiced law in firms in Salt Lake City
D.C. until 1972. He was then a solo practitioner for a year. While in
private practice, plaintiff did civil and criminal litigation. In 1973
he joined the Renegotiation Board as Assistant General Counsel for
Litigation, where he reviewed the profits of defense contractors. In
particular, he assisted Department of Justice ("DOJ") lawyers in
litigating cases against defense contractors for recovery of excessive
2. In 1978 plaintiff joined DOE as a senior staff attorney at the
GS-15 level. He became one of five Deputy Assistant General Counsels who
supervised the litigation of numerous petroleum price control cases
before United States District Courts and the newly-established Temporary
Emergency Court of Appeals.
3. Following an internal DOE reorganization in 1985, Crockett was
promoted in 1987 to the position of Director, Office of Judicial
Litigation for the Economic Regulatory Administration ("ERA"), the
agency within DOE responsible for price control litigation. In that
position, plaintiff supervised two deputies and twenty staff attorneys.
While at the ERA, plaintiff personally handled or supervised hundreds of
price control cases in a variety of courts and was involved in several
class action suits.
4. In 1995 the ERA was merged into DOE's Office of General Counsel as
a result of a dwindling caseload, and in 1996, the ERA office on Capitol
Hill was closed and the staff was moved back to the Forrestall Building.
Plaintiff's title was changed to Deputy Assistant General Counsel for
Litigation, and in 1996 he began to do non-price control cases. All of
plaintiff's supervisory responsibilities also came to an end in 1996.
5. While at the DOE, plaintiff consistently received outstanding
performance ratings, and he received an Exceptional Service Award in
1990. In that same year he was nominated by the Judicial Nominating
Commission for possible appointment to the bench of the Superior Court
of the District of Columbia, but was not chosen. On at least three
occasions prior to 1996, plaintiff applied but was rejected for a SES
position at DOE. The selecting official for each of these SES positions
was someone other than Nordhaus.
6. It is uncontested that Crockett was an experienced litigator, that
lawyers both in and out of DOE thought highly of his skills, and that he
did an excellent job handling price control cases.
B. Gary Stern's Legal Career
7. Stern, the person who was officially hired as Assistant General
Counsel for Contractor Litigation on February 4, 1997, was born on March
31, 1960. After graduating from Yale Law School in 1987, Stern worked
for the ACLU Center for National Security Studies on constitutional
cases involving national security issues. In that capacity, Stern wrote
briefs and motions and did policy and legislative work. After the ACLU,
Stern served as a Senior Policy and Research Analyst to the U.S. Federal
Advisory Committee on Human Radiation Experiments. In that position, he
had primary responsibility for advising the Committee on secrecy and
classification issues. While at the Committee, Stern worked with
Nordhaus, who was then General Counsel of DOE, and Lisa Schiavo,
Nordhaus' Special Assistant.
8. In 1995 Stern joined DOE's Office of General Counsel in a GS-15
position as the Deputy Assistant General Counsel for Information Law.
His supervisor was Ralph Goldenberg. Stern received an outstanding
performance rating while working for Goldenberg, and he had supervisory
responsibility for three lawyers. While in that position, Stern was
involved in several high profile, complicated DOE contractor litigation
matters, i.e., the Rocky Flats litigation in Colorado, a mass tort
action involving radiation injuries from plutonium exposure, and a class
action involving human radiation experiments. Nordhaus was also
intimately involved in these large matters.
9. In July 1996 Stern replaced Lisa Schiavo as Nordhaus' Special
Assistant. Prior to that time, Schiavo, who had been at DOE for two
years, had been Nordhaus' Special Assistant, as well as the Acting
Assistant General Counsel for Contractor Litigation. At the time she
worked at DOE, Schiavo was in her late twenties or early thirties. Her
appointment as Acting Assistant General Counsel was a non-career SES
appointment (i.e., a non-competitive appointment). Upon Schiavo's
departure, Nordhaus appointed Janine Sweeney as the Acting Assistant
General Counsel for Contractor Litigation. At the time of her
appointment, Sweeney was fifty-two years old. Her supervisor was Marc
Johnston, who was the Deputy General Counsel for Litigation.
10. As Special Assistant, Stern was intimately involved in all aspects
of DOE contractor litigation, including attempts to settle the human
radiation cases, various whistleblower cases, and several large class
actions. He also oversaw the Dispute Resolution Specialist at DOE who
ran the ADR program, which was tasked with the job of settling DOE
contractor cases. Three-quarters of Stern's work involved contractor
litigation, and as noted by Nordhaus, the division of responsibility
between Sweeney and Stern was often blurred.
11. On September 16, 1996, Stern was officially named by Nordhaus as
Acting General Counsel for Contractor Litigation, and his appointment
became permanent on February 4, 1997. The appointment on an acting basis
was done non-competitively, in contrast to the permanent appointment.
The selecting official was Robert Nordhaus, who was General Counsel of
DOE from July 1993 until March 1, 1997. Nordhaus was born in 1937.
C. The Selection of Stern as Assistant General Counsel for Contractor
12. A job vacancy for the position of Assistant General Counsel for
Contractor Litigation was posted in mid-August 1996, with a closing date
of September 16, 1996. Sweeney had been appointed by Nordhaus to the
position on an acting basis after Schiavo's departure from DOE in July
1996. However, Sweeney did not want to continue in the job.
13. The August 1996 vacancy announcement for the Assistant General
Counsel for Contractor Litigation, which was an SES position, described
the job duties and responsibilities, and listed the five qualification
requirements that are Executive Core Requirements common to all SES
positions and the seven technical qualifications that are unique to the
position. These technical qualifications were composed, based on the job
position description, by the personnel department within the Office of
General Counsel and signed off on by Nordhaus in his capacity as General
14. The technical qualifications listed were as follows:
1. Admission to the Bar in one or more U.S.
2. Working knowledge and experience in litigation
and class action lawsuits.
3. Ability to analyze highly complicated factual
situations and to recognize the legal and policy
4. Experience in litigation management, particularly
in setting out and defining litigation costs and
5. Strong communication and interpersonal skills, as
well as an ability to work in groups, including
teams and committees.
6. Ability to write clearly and distinctly and to make
effective written arguments and presentations of
7. Highly developed organizational skills and ability
to manage a heavy, and often times, sensitive
2. Stern submitted his application for the position on September 16,
1996, the same day he was officially designated as Acting Assistant
General Counsel for Contractor Litigation. He did not submit a separate
supplemental statement detailing his technical qualifications as part of
his application. Instead, he included his discussion of his technical
qualifications within his Qualifications Statement that addressed the
five Executive Core Qualifications. He believed that the application,
his resume and his Qualifications Statement were sufficient to cover
adequately his technical qualifications.*fn1
3. The vacancy announcement did not require two supplemental
statements, but only required a "[s]upplemental statement addressing
each of the qualification requirements listed above, . . ." Pl. Ex. 1.
Moreover, as indicated by one of the DOE attorneys who had had
experience serving on SES selection panels, there is no consistent form;
technical qualifications and Executive Core Qualifications may have been
submitted as one form; and if the necessary information can be gleaned
from application, it is unlikely that the application would be rejected.
4. The Merit Staffing Committee which reviewed all applications for
the position of Assistant General Counsel for Contractor Litigation
included Robert Rabben, Douglas Smith and Mary Egger. The Committee
rated five candidates, including Crockett and Stern, as "superior." The
five names were then submitted to Nordhaus on or about October 7,
1996.*fn2 Nordhaus had no involvement in the Committee's review process.
5. Nordhaus did not fill the Assistant General Counsel for Contractor
Litigation position until February 1997, after having requested two
extensions of the selection certificate for the position. Nordhaus did
not specifically recall why it had taken him so long to make the
decision, but he recalled raising a question as to whether he could go
off the list provided by the Merit Staffing Committee to consider Alan
Lear and that this may have delayed his decision-making process. Further,
Cynthia Ford, who was in charge of personnel at the General Counsel's
Office, noted that it was not unusual for Nordhaus to request an
extension. By contrast, Nordhaus appointed Stephen Skubel, who had been
serving as the Acting Assistant General Counsel for Litigation since
1990, immediately after the applications were transmitted to him by the
Merit Staffing Committee.
6. Nordhaus did not conduct interviews since he knew the applicants.
However, he met briefly with Crockett after he scheduled an appointment
with Nordhaus to talk about the position. Before making his decision,
Nordhaus spoke to Marc Johnston, who was Deputy General Counsel for
Litigation, to inquire whether he would be comfortable with Stern as his
assistant. Johnston agreed that he would.
7. In making his decision with respect to the Assistant General
Counsel for Contractor Litigation, Nordhaus was mindful of the need
to find a person who could
manage DOE contractor litigation. This goal had become a high priority
after the DOE was criticized in a widely-publicized Congressional
hearing in June 1994 for failing to document and justify its expenditure
of some $40-50 million per year to reimburse the fees and costs incurred
by the contractors' outside counsel.*fn3 In response, Nordhaus had
established a Contractor Litigation Section to oversee the litigation,
to develop a system to keep track of the cases and the litigation costs,
and to supervise outside counsel. From Nordhaus' viewpoint, experience
with the contractor litigation management system, as opposed to actual
litigation or trial experience, was the most important attribute for the
job. Thus, of the seven technical qualifications listed in job vacancy,
the second requirement ("working knowledge and experience in litigation
and class action lawsuits") was not as essential as requirements 3-7.
8. Nordhaus denied that age played any part in his promotion decision.
Rather, he appointed Stern because he believed that Stern had had more
experience with the management program that had been put in place to
control DOE contractor litigation and its costs. Nordhaus was of the
view that from the time that Stern joined DOE, he had been involved in
various aspects of DOE contractor litigation, and that he was the most
qualified candidate for overseeing these cases because of his
familiarity with the auditing system, the cost controls and the
procedures for resolving high profile and politically sensitive cases.
Stern had impressed Nordhaus with the quality of his work, his breadth
of knowledge and the speed with which he mastered complex matters.
Nordhaus had come to rely on Stern, and as Special Assistant, Stern had
assumed management responsibility for some of the most challenging
contractor cases and had also worked in conjunction with Sweeney and
Nordhaus on other difficult contractor cases.
9. In contrast, Nordhaus viewed Crockett as being less qualified than
Stern for the position of Assistant General Counsel for Contractor
Litigation. Nordhaus was familiar with Crockett's work, including his
handling of price control cases, and although he considered Crockett to
be good in this highly-specialized and limited area of the law, he
thought that Crockett was not as familiar as Stern with the
multi-faceted legal and policy issues that commonly arise in DOE
contractor cases, and that unlike Stern, Crockett lacked the experience
and mindset to deal with highly-controversial and politically-charged
DOE contractor cases. Nordhaus also believed that Stern had had more
hands-on experience with implementing and overseeing the cost management
program which Nordhaus and Schiavo had instituted, and that he had had
more experience with settling these types of cases.
10. While Nordhaus acknowledged that Crockett's litigation experience
far exceeded Stem's limited experience, he considered that particular
qualification to be far less important than experience with the
litigation management system for the DOE contractor cases. As testified
by Nordhaus, as well as by Marc Johnson who supervised the Assistant
General Counsel for Contractor Litigation, actual litigation experience
was not essential because the job did not involve going to court, and,
except in the rare case, the line attorneys in the field offices, not
the Assistant General Counsel, were the attorneys who actually had
direct contact with and oversight over the private lawyers who
represented the contractors.
CONCLUSIONS OF LAW
1. Plaintiff has met his initial burden of establishing a prima facie
case of age discrimination under the ADEA. He is
a member of a protected class, he applied for and was qualified for the
position at issue, he was rejected for that position, and the position
was filled by someone who was considerably younger. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). However, defendant has "articulate[d] some
legitimate, nondiscriminatory reason for the employee's rejection," id.
at 802, 93 S.Ct. 1817, and thus, defendant, by producing evidence that
plaintiff was rejected because another applicant was considered to be
better qualified for the position, has rebutted plaintiff's prima facie
case. Plaintiff must now "demonstrate that the proffered reason was not
the true reason for the employment decision," which "merges with the
ultimate burden of persuading the court that [he] has been the victim of
intentional discrimination." Texas Dep't of Community Affairs v. Burdine,
450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).*fn4
2. Plaintiff has failed to carry this burden, for plaintiff has
neither "persuad[ed] the court that a discriminatory reason more likely
motivated" defendant nor shown that defendant's "proffered explanation
is unworthy of credence." Id. at 256, 101 S.Ct. 1089.
3. The court is convinced that the promotion decision reflects
Nordhaus' prioritization of the necessary job qualifications and his
assessment that Stern, as opposed to Crockett, was better able to
perform the job functions that Nordhaus considered to be the most
critical. Nordhaus was impressed with Stern's work and his ability
to handle complicated and politically sensitive matters. He had had
experience working with him on the President's Advisory Committee on
Human Radiation Experiments, as his Deputy Assistant General Counsel
for Information Law and as his Special Assistant prior to appointing
him as Acting Assistant General Counsel for Contractor Litigation in
September 1996. Based on this experience, he trusted Stern, knew that
he was familiar with the substantive areas of law at issue in the DOE
contractor cases, and believed that he would effectively oversee the
DOE contractor litigation and would achieve the policy and programmatic
objectives of the litigation management system that Nordhaus had
4. In an attempt to rebut defendant's legitimate, nondiscriminatory
reasons, plaintiff continually emphasizes his many years of litigation
experience. The selecting official did not consider this particular
technical qualification to be as important as the other technical
qualifications, and the law does not require that each technical
qualification be accorded equal weight or that the number of years of
litigation experience should take precedence over all other
qualifications listed in the job vacancy. Nor can the court agree that
Nordhaus' reasons for his decision were not legitimate. His reasons did
not, as argued by plaintiff, amount to hidden qualifications not set out
in the job vacancy. Rather, the vacancy announcement made clear that
"experience in litigation management" (# 4), as well as the "ability to
analyze highly-complicated factual situations and to recognize the legal
and policy issues involved" (# 3), were necessary qualifications, and
there is no prohibition against ranking these qualifications above
"experience in litigation . . . ." (# 2). There has thus been no
5 C.F.R. § 317.402.*fn5 Nor is there any evidence that Nordhaus
"grant[ed] any preference or advantage not authorized by law, rule or
regulations for the purpose of improving or injuring prospects of any
particular person for employment." 5 U.S.C. § 2302 (b)(6). Contrary
to plaintiff's argument, the law does not prohibit Nordhaus from
selecting Stern on an "acting" basis prior to appointing him to the
position, and there is no basis upon which to conclude that in the
absence of his experience as Acting Assistant General Counsel for
Contractor Litigation, Stern was not qualified for the job.
5. Moreover, the ADEA does not require defendant to base its promotion
decision solely upon numerical or "objective" factors, as opposed to
qualitative or "subjective" factors. Obviously, Crockett had many more
years of legal experience, but the law does not demand that the employer
promote the person with the greatest number of years of experience. Nor
is there anything unlawful about an employer's qualitative assessment of
an applicant's legal talents and abilities to handle the types of
challenging cases considered to be the most important to the defendant.
While it is uncontested that plaintiff is considered to be well
qualified for and performs well in his present position, the court is
persuaded that Stern had demonstrated to the selecting official the very
skills that made him better suited for promotion to the management
position at issue.
6. Further, the court does not find that the reasons given at trial
for the selection of Stern over Crockett were materially different from
those given by Nordhaus to the EEO investigator in March 1998. (Pl. Ex.
10, ¶¶ 6, 7). It is of no significance that Nordhaus failed to
mention specifically Crockett's lack of emphasis on settlement. When
interviewed by the EEO investigator, Nordhaus emphasized that he
believed that Stern "had been supervising the contractor litigation work
for a number of months and had more experience than the other candidates
in dealing with litigation against DOE's contractors," whereas he
believed that Crockett lacked "the breadth of experience or current
knowledge necessary to supervise . . . the Department's . . . contractor
litigation work." (Pl. Ex. 10). Defendant did not present a "moving
target," as argued by plaintiff, but on the contrary, defendant has been
consistent in its comparative assessment of the candidates'
7. Any claim of discrimination is further belied by the fact that the
selecting official is the same age as the plaintiff and that the person
he selected prior to Stern — Janice Sweeney — was fifty-two years old at the
8. It is not this court's job to decide if defendant's proffered
reasons were wise, fair, or correct, but rather, whether defendant
honestly believed those reasons and acted in good faith upon those
beliefs. See Fischbach v. District of Columbia Dep't of Corrections,
86 F.3d 1180, 1183 (D.C.Cir. 1996) ("[I]t is not enough for the
plaintiff to show that a reason for a job action is not just, or fair,
or sensible," for "the issue is not the correctness or desirability of
the reasons offered but whether the employer honestly believes in the
reasons it offers.") (quotation marks and citations omitted). The court
concludes that defendant did act in good faith based upon a reasonable
and rationale assessment of Stern's qualifications, as compared to those
of the plaintiff. The appointing official exercised a legitimate
preference for someone who had proven himself to be up to the task of
handling the very types of legal matters that would fall under this
control as the Assistant General Counsel for Contractor Litigation, and
therefore, "the discretion involved in [this] promotion, so long as not
influenced by unlawful factors, belongs to the employing agency and not
to . . . the trier of fact." Chennareddy v. GAO, No. 88-1076, 1988 WL
145096, at *2 (D.C.Cir. Dec. 30, 1988) (per curiam). See also supra note
4; Russell v. Baker, 1988 WL 90124 (D.D.C. 1988).
9. For the reasons set forth above, the court concludes that there is
insufficient evidence to conclude that defendant discriminated against
plaintiff. Accordingly, plaintiff's request for damages must be denied
and the complaint must be dismissed.