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.
A. Plaintiff's Legal Career
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 ...