ADEA actions apply the same evidentiary burdens as cases
brought under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e-2000e17. See, e.g., Binder v. Long
Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991); Russo v.
Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 43 (2d Cir.
The ADEA specifically requires that the plaintiff demonstrate
that the adverse employment decision in question was made
"because of age." 29 U.S.C. § 623. The Second Circuit has
interpreted this requirement to signify that age represents a
"determinative factor" in the alleged discriminatory treatment.
Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1568 (2d
Cir. 1989); Montana v. First Fed. Sav. & Loan Ass'n,
869 F.2d 100, 104 (2d Cir. 1989); Paolillo v. Dresser Indus., Inc.,
865 F.2d 37, 40, modified, 884 F.2d 707 (2d Cir. 1989) (plaintiff
must show that age was a "factor that made a difference" in
defendant's decision to implement an elective termination
Plaintiff's burden of proving that age was a determinative
factor may be established either directly or indirectly. Price
Waterhouse v. Hopkins, 490 U.S. 228, 244, 109 S.Ct. 1775, 1787,
104 L.Ed.2d 268 (1989); United States Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 1481, 75
L.Ed.2d 403 (1983).
Absent direct evidence proof that age was a determinative
factor is developed in accordance with the familiar McDonnell
Douglas/Burdine burden-shifting formula. Texas Dep't. of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67
L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Taggart v. Time,
Inc., 924 F.2d 43, 46 (2d Cir. 1991); Grant v. Hazelett
Strip-Casting Corp., 880 F.2d at 1568 (shifting evidentiary
burdens have been designed to allow the plaintiff to prove his
case despite the absence of direct evidence). The parties'
respective burdens of producing evidence are divided into three
Plaintiff bears the initial burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. In a case brought under ADEA, the plaintiff must
prove (1) that he was over 40 years of age, (2) that he applied
for and was qualified for the position sought and, (3) that he
was "denied employment under circumstances that give rise to an
inference of discrimination." Dister v. Continental Group,
Inc., 859 F.2d 1108, 1114-15 (2d Cir. 1988).
Significantly, "[t]he burden of establishing a prima facie
case of disparate treatment is not onerous." Burdine, 450 U.S.
at 253, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. at 1824. Indeed, the nature of the plaintiff's burden at
this preliminary stage is de minimus. Dister, 859 F.2d at 1114
(citing Sweeney v. Research Found. of the State Univ. of N.Y.,
711 F.2d 1179, 1184 (2d Cir. 1983)).
Once plaintiff establishes his prima facie case, an inference
or rebuttable presumption of discrimination is raised that the
adverse employment decision, unless otherwise explained, was more
likely than not based on impermissible discriminatory factors.
Burdine, 450 U.S. at 254, 101 S.Ct. at 1094; Dister v.
Continental Group, 859 F.2d at 1111.
To rebut plaintiff's prima facie assertions, the defendant
must articulate some legitimate non-discriminatory reason for the
employee's rejection. This burden is simply one of articulation
of production; it is not a burden of proving the absence of a
discriminatory motive. Burdine, 450 U.S. at 254-56, 101 S.Ct.
at 1094-95 ([the employer need] only produce admissible evidence
which would allow the trier of fact rationally to conclude that
the employment decision had not been motivated by discriminatory
animus. Id. at 257, 101 S.Ct. at 1095).
The plaintiff, however, never relinquishes the ultimate burden
of persuading the trier of fact that he was subjected to age
discrimination. Hence, in the "pretext" stage a merger occurs
between plaintiff's ultimate burden and the burden of proving
that the defendant's proffered reasons are merely a pretext for
rather than the true reasons for its actions. Burdine, 450 U.S.
at 256, 101 S.Ct. at 1095. The plaintiff makes this showing
"either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of
credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. See
also McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. at 1824-25;
Grant v. Hazelett Strip-Casting Corp., 880 F.2d at 1568;
Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.
Naphtali's Claims of Discrimination
Naphtali's allegations of discrimination concern the fact that
(1) he was not offered a permanent position in 1985, (2) that his
temporary appointment was not renewed for a third year in 1987,
and (3) that he was not promoted to certain supervisory positions
for which he applied. But plainly, in all three situations
Naphtali failed to prove by a preponderance of the evidence that
the enunciated reasons for the EPA's adverse personnel decisions
concerning Naphtali were merely pretexts for illegal age
Prima Facie Case
Applying the Title VII approach to the facts of the instant
matter, the court holds that, initially, Naphtali set forth a
prima facie case of age discrimination.
First. Naphtali was 58 years of age when he applied for a
position at the AWMD, clearly a member of the over 40 age group
protected by the statute.
Second. Undeniably, Naphtali possesses an adequate background
as illustrated by his educational qualifications, which include
an undergraduate degree in chemical engineering from Cooper
Union, and masters and doctorate degrees in chemical engineering
from the University of Michigan. His educational prowess is
buttressed by his extensive practical experience as an educator
at the university level, and as a chemical engineer in the
private sector followed by eight years successfully working
within the Energy Department. Without belaboring the point, there
is ample support for the proposition that Naphtali appeared
highly qualified and particularly experienced in the field of
Third. The circumstances surrounding Naphtali's initial
temporary appointment in 1985, non-selection for supervisory
positions and termination in 1987 give rise to an inference of
discrimination predicated upon age. Essentially, an employer's
preferential selection of less-qualified employees outside of the
protected age class, under similar employment circumstances, is
sufficient to create the necessary inference of age
discrimination under ADEA. Burdine, 450 U.S. at 253-54, 101
S.Ct. at 1093-94; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct.
at 1824; Taggart, 924 F.2d at 46; Montana, 869 F.2d at 105.
"The inference . . . may be shown by direct . . . statistical . .
. or circumstantial evidence such as documentation of preference
for younger employees" Taggart, 924 F.2d at 46 (citing
Montana, 869 F.2d at 104).
Here it is true, for example, that during the period following
Naphtali's initial interview with Simon and periodically during
Naphtali's tenure, the AWMD hired, for permanent positions,
individuals under age 40, some with little or no environmental
experience (Tr. 383-84). More, Siegel acknowledged that the work
force within region II of the EPA was uniformly younger than any
other region in the EPA. Siegel attributed this statistic to the
fact that the vast majority of applicants were either immediately
out of college or recent graduates (Tr. 405-07). John Henderson
("Henderson"), chief of the EPA's Human Resources Branch, added
that one of the EPA's strategies, aimed primarily at increasing
the level of women and minorities in the EPA, was to target
recruiting efforts primarily towards college interviews and
referrals (Tr. 219-20).
Collectively, the circumstances under which personnel decisions
were made within the AWMD compounded by the skewed statistical
makeup of the division provide sufficient foundation to establish
the minimal requisite inference of age discrimination necessary
to complete Naphtali's prima facie showing.
In any event, the Court properly dismissed Naphtali's claims
for the reason that Naphtali failed to prove that the EPA's
stated legitimate reasons for the various adverse personnel
decisions made against Naphtali were pretexts for discrimination,
and that age was a "determinative factor" considered under the
aforementioned circumstances. Montana, 869 F.2d at 104;
Hagelthorn v. Kennecott Indus. Corp., 710 F.2d 76, 86 (2d Cir.
The evidence in the record firmly establishes that Naphtali's
age played no role in the decision to hire Naphtali under a
temporary appointment in 1985, and in the decision not to extend
the term of his appointment in 1987. Similarly, the decision not
to give Naphtali a supervisory position was based on his
inadequate work record and the superior ability and
qualifications of others who applied.
According to highly damaging testimony, convincingly
documented by each and every one of Naphtali's superiors,
throughout his tenure at the EPA, Naphtali simply did not focus
enough attention towards his specific responsibilities or the
goals of the EPA. Moreover, each and every supervisor's
dissatisfaction with Naphtali's performance is bolstered by
physical evidence appearing in the form of the predominantly
negative performance evaluations described supra.
The short of the matter: The conclusion is inescapable that
Naphtali's tenure at the EPA was only attributable to his
substandard work performance coupled with the superior particular
capabilities of competing employees, and, while fatal to
Naphtali's claims, age simply did not make a difference.
Finally, Naphtali vigorously insists that for purposes of
termination of employment he should have been classified as a
statutory "employee" within the meaning of the Civil Service
Reform Act (5 U.S.C. § 7511(a)(1)(A)) with consequent entitlement
to the procedural protection afforded to such individuals prior
to removal under 5 U.S.C. § 7513. Naphtali maintains that the
reason he fits within the definition of "employee" is due to the
fact that he completed one year of continuous employment for the
Government during his tenure with the Energy Department between
1977 and 1985.
The court disagrees. The Civil Service Reform Act, under Title
5 of the United States Code, codifies the general and permanent
laws relating to the organization of the Government of the United
States and to its civilian officers and employees. Subpart F
which is entitled "Labor Management and Employee Relations,"
contains within Chapter 75 dealing with "Adverse Actions,"
section 7511(a)(1)(A) classifying which individuals fall into the
category of statutory "employee."
Section 7511(a)(1)(A) defines an "employee" as "an individual
in the competitive service who is not serving a probationary or
trial period under an initial appointment or who has completed 1
year of current continuous employment under other than a
temporary appointment limited to 1 year or less."
5 U.S.C. § 7511(a)(1)(A) (emphasis supplied).
Without doubt, Naphtali held a temporary appointment with the
EPA. The evidence at trial clearly established that Naphtali was
fully aware of the temporary nature of his appointment. And
since Naphtali's appointment was only temporary, Naphtali may not
be classified as an "employee" entitled to the procedural
protections under section 7513 prior to termination of his
Nor does the fact that Naphtali previously had a permanent
appointment with the Energy department change the status of his
classification by the EPA as a temporary employee. It bears
repetition — in order to be entitled to procedural protections
prior to termination, an employee must have "completed 1 year of
current continuous service under other than a temporary
appointment . . ." 5 U.S.C. § 7511(a)(1)(A). Plainly, Naphtali
did not possess a current non-temporary appointment, and thus
he was not entitled to the procedural protection set forth in
section 7513 prior to discharge. Horner v. Lucas, 832 F.2d 596
(Fed.Cir. 1987) (in order to be an "employee" with procedural
protection, one must "be serving in continuous employment in a
non-temporary appointment at the time of the adverse action.
Previous service in a non-temporary post, which is followed by
new temporary positions, is irrelevant under the statute." Id.
at 597 (emphasis in original)).
Hence, in view of the overwhelming evidence weighing in
defendants' favor, the court holds that the EPA committed no
procedural error in terminating Naphtali's temporary appointment.
In compliance with the foregoing Findings of Fact and
Conclusions of Law pursuant to Rule 52(a) Fed.R.Civ.P. the court
adheres to its trial ruling dismissing the complaint in favor of
Naphtali brought this action in good faith to redress a
perceived wrong. Nevertheless, the evidence conclusively supports
the court's holding in favor of the EPA. Despite Naphtali's
prima facie showing, drawing upon highly persuasive testimony
and convincing physical evidence the EPA established that the
adverse employment actions taken against Naphtali were not
Rather, Naphtali's superiors truthfully articulated legitimate,
nondiscriminatory reasons for their actions stressing Naphtali's
work-related deficiencies and the superior qualifications of
other individuals, and their decisions were obviously not
predicated upon Naphtali's age. Moreover, Naphtali's attempts to
portray as pretextual the legitimate reasons proffered by the EPA
for its actions are without merit.
Accordingly, the clerk is directed to dismiss plaintiff's
complaint with prejudice, but without costs.