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Sherwood v. Evans

March 17, 2006


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff, Harrison Sherwood, filed this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., alleging that the International Trade Administration at the U.S. Department of Commerce did not hire him because of his age. Pending before the Court is defendant's Motion for Summary Judgment. Defendant argues that the available position was a contract position, and therefore not subject to ADEA. Defendant next argues that even if the ADEA applies, plaintiff cannot establish a prima facie case because he was not qualified for the position. Third, defendant contends that plaintiff's lack of qualification is a legitimate reason for not selecting plaintiff, and that plaintiff has not offered any evidence to demonstrate that this reason is pretext for discrimination. Upon consideration of defendant's motion, and the response and reply thereto, the Court concludes that the ADEA does not apply.*fn1

Accordingly, defendant's Motion for Summary Judgment is GRANTED and plaintiff's complaint is DISMISSED WITH PREJUDICE.


On September 19, 1996, Robert Kohn, Senior Commercial Officer, Bonn Office, United States and Foreign Commercial Services ("US & FCS"), International Trade Administration, U.S. Department of Commerce, requested that the U.S. Department of State ("State Department") approve the filling of a Personal Services Contract ("PSC") position in Duesseldorf, Germany. On November 15, 1996, the U.S. Embassy issued a Job Opportunity Announcement for the position (the "Announcement"). Defendant's Statement of Undisputed Material Facts ("Def. Statement") at ¶ 3; Def. Ex. 3. The US & FCS office in Bonn ("the Bonn Office") was to conduct interviews and evaluate candidates, but the selection was a "joint decision" with the US & FCS office in Washington, D.C. ("the D.C. Office"). Def. Statement at ¶ 22.*fn2

The position description provided that the Personal Services Contractor would hold the title of "Commercial Representative," and would "carr[y] out the entire range of commercial work with almost no day-to-day supervision." Def. Statement at ¶ 4. Major duties of the position include working to expand U.S. exports to Dusseldorf, supporting the Principal Officer in furtherance of Commercial Service Germany's goals and objectives, helping U.S. companies resolve trade complaints, and contributing to commercial reporting. Announcement at 4-5. In addition, the Commercial Representative would serve as "an analyst and advisor to [Commercial Service] Germany management in planning, organizing and implementing programs to facilitate the expansion of U.S. exports in the region." Def. Statement at ¶ 4, Def. Ex. 13 at 2. The duties of a PSC contractor, however, are inherently limited; a contract employee cannot form policy, plan programming, represent the U.S. government, control money, property, or other valuable resources, or supervise direct-hire employees of the U.S. government. 3 Foreign Affairs Manual ("FAM") 171.2(b)(2), Def. Ex. 20; Affidavit of Kay Kuhlman (Nov. 3, 1997) ("Kuhlman Aff.") at 2, Def. Ex. 9; Affidavit of George Knowles (Oct. 17, 1997) ("Knowles Aff.") at 4, Def. Ex. 8.

Neither party disputes that the Announcement included a residency requirement as a precondition to applying. The six-page Announcement stated this requirement twice. Announcement at 1 (stating that the PSC position was open to "eligible American family members of accredited U.S. Mission personnel in Germany and American citizens residing in Germany"); Announcement at 3 ("In order to be eligible to apply, American citizens must have a valid German residency permit."). The U.S. Department of State Job Announcements routinely include residency requirements. Def. Statement at ¶ 12. The State Department requires its PSC applicants to reside in the country in which the work is to be performed. Id.

Among the eight candidates for the position were Kenneth Keefe (age 40), plaintiff (age 63), and Edward Fantasia (age 47). Def. Statement at ¶ 15; Defendant's Motion for Summary Judgment at 4. Mr. Kohn and Ms. Kuhlman, in the Bonn Office, created a short list for the position and ranked these candidates first through third, respectively, and sent the list to the D.C. office. Def. Statement at ¶ 25. In reviewing the short list from the Bonn Office, Mr. George Knowles, then-Regional Director for Europe, and Ms. Dolores Harrod, Deputy Assistant Secretary, questioned plaintiff's inclusion because plaintiff was not a resident of Germany. Affidavit of Dolores Harrod (Oct. 16, 1997) at 2, Def. Ex. 7; Knowles Aff. at 2-3. Mr. Knowles conveyed to Mr. Kohn and Ms. Kuhlman that plaintiff was not qualified primarily because of his lack of residency and also because of his lack of current knowledge of German trade, economy, and business. Knowles Aff. at 2. Both offices agreed to offer the position to Mr. Keefe, but Mr. Keefe declined the offer. Def. Statement at ¶ 27. Unbeknownst to Mr. Knowles, Mr. Keefe had recently moved from Germany to Florida sometime before he was offered the position and, therefore, he did not meet the residency requirement. Knowles Aff. at 2. Since Mr. Keefe declined the position, however, defendant did not have to address the residency problems. The position was then offered to Mr. Fantasia, who was living in Germany, had a German residency permit, and had current knowledge of German business, trade, and investment practices. Application for PSC position of Edward Fantasia at 1-4, Def. Ex. 23.


Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp., 477 U.S. at 324.


Liability under the ADEA is not triggered against the federal government unless the complainant is an "applicant for employment" of a federal agency. See 29 U.S.C. § 633a(a); 29 C.F.R. § 1614.103. In order to determine whether the position was for an employee or an independent contractor, the court should "analy[ze] the economic realities of the work relationship." Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979) (citations omitted). The Spirides Court detailed eleven factors to distinguish an employment position from an independent contractor position, but observed, "the extent of the employer's right to control the 'means and manner' of the worker's performance is the most important factor to review. . ." Id. at 831-32. The Circuit later grouped the factors into four categories: 1) the intent of the parties; 2) whether contracting work out is justifiable as a prudent business decision; 3) the defendant's control over the work to be performed; and 4) whether the relationship shares attributes commonly found in arrangements with independent contractors or employees. See Redd v. Summers, 232 F.3d 933, 939 (D.C. Cir. 1999) (citing Spirides, 613 F.2d at 831).

1. The Intent of the Parties

This group consists of one Spirides factor, "the intent of the parties, primarily as reflected in the contract between the 'contractor' and its 'client.'" Redd, 232 F.2d at 939. Defendant argues that it clearly stated its intent that the PSC position was contractual. Plaintiff conceded at his deposition that one of the things that made the PSC position attractive to him was the fact that it was a contract ...

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