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CROCKETT v. RICHARDSON

January 8, 2001

DON W. CROCKETT, PLAINTIFF,
v.
BILL RICHARDSON, SECRETARY OF ENERGY, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

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

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 ...


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