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YACOUB v. MCGOVERN

December 15, 1993

ALPHONSE F. YACOUB, Plaintiff,
v.
JAMES P. McGOVERN, Acting Secretary, Department of the Air Force, Defendant.


Hurd


The opinion of the court was delivered by: DAVID N. HURD

United States Magistrate Judge

 MEMORANDUM-DECISION and ORDER

 I. INTRODUCTION.

 The plaintiff, Alphonse F. Yacoub, was employed as a civilian "auditor-trainee, GS-7" with the Department of the Air Force between March 1984, and April 1985. He was assigned to Griffiss Air Force Base ("GAFB"), Rome, New York. He filed suit pursuant to 42 U.S.C. § 2000e et seq. (Title VII of the Civil Rights Act of 1964), and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Specifically, plaintiff claims that the defendant United States Department of the Air Force discriminated against him based upon his national origin and/or age when his employment was terminated. Plaintiff seeks back pay, reinstatement, attorney's fees, and expenses. In its answer, defendant denied the material allegations in the complaint and raised certain affirmative defenses.

 II. TRIAL.

 The court conducted a three day non-jury trial on June 7, 8, and 9, 1993, in Rome, New York. *fn1" The following Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

 III. FINDINGS OF FACT.

 The parties' stipulated facts (Court Exhibit No. "1") are incorporated herein and made a part hereof.

 The plaintiff was born on March 9, 1928. He is of Egyptian national origin having been born in Cairo, Egypt. He started work as an auditor-trainee with the Area Audit Office of the Air Force Audit Agency (AFAA) at GAFB on April 16, 1984, at the age of fifty-six. He was terminated from that position by letter dated March 12, 1985 (Pltf's Ex. 24), effective March 29, 1985, (later extended to April 12, 1985 (Pltf's Ex. 25)) when he was fifty-seven years old. During that period of time, Armand Routhier ("Routhier") was the supervisor and/or chief of the GAFB area audit office, and the plaintiff's immediate supervisor. Vaughn Schlunz ("Schlunz") was the supervisor/auditor of the Air Force Audit Agency, and was Routhier's immediate supervisor. Edward Crick ("Crick") was the chief supervisor/auditor of the Northern Audit Region of the Air Force Audit Agency and was Schlunz's immediate supervisor. Neither Crick nor Schlunz were stationed at GAFB. Also working at the GAFB office were Thaddeus Ziemba ("Ziemba") and Joseph Sciulli ("Sciulli") as "senior auditors" whose duties included, among other things, supervising the work of auditor-trainees such as the plaintiff, training auditor-trainees, and reviewing the work product of auditor-trainees. The plaintiff was one of three auditor-trainees in the office at that time; the other two were Leslie Sax and Carol Rypkema.

 From 1972 to 1985, Routhier supervised approximately thirty to forty auditor-trainees at GAFB. Plaintiff was the oldest auditor-trainee; most of the other auditor-trainees were just recently out of college and in their twenties. He was also the only auditor-trainee with a national origin from the Middle East. Most, if not all, of the other auditor-trainees were of European-American national origin.

 The plaintiff worked on five audits between the start of his employment and March 1985. Two audits were under the supervision of Ziemba, two were under the supervision of Sciulli, and the final one was under Routhier's supervision. Each project was to be followed by an individual audit evaluation (AFAA Form 43A). The first audit for Ziemba entitled "Host Tenant Support Agreement - Griffiss AFB" was followed by Ziemba's audit evaluation on August 3, 1984 (Pltf's Ex. 15), and was satisfactory to the plaintiff. For some reason, Ziemba did not complete an individual audit evaluation, AFAA Form 43A, as required by the New Personnel Training Program (Pltf's Ex. 9), for the second audit entitled "Host Tenant Support Agreement - Niagara Falls". Two audit evaluations signed by Sciulli were dated November 28, 1984 (Pltf's Ex. 16), and January 9, 1985 (Pltf's Ex. 17), *fn2" and involved "Management of Paying and Collecting Area" and "Management of Heating, Ventilation and Air Conditioning Contracts." Both evaluations gave plaintiff an outstanding rating. *fn3" For some reason Routhier never completed an AFAA Form 43A evaluation on the plaintiff's final audit entitled "Hospital Supply Receiving." In addition, during 1984, plaintiff received a job performance appraisal signed by Routhier on April 18, 1984 (Pltf's Ex. 11); a civilian performance and promotion appraisal signed by Routhier on July 11, 1984 (Pltf's Ex. 10); a quarterly training progress report (AFAA Form 43) signed by Routhier on July 13, 1984 (Pltf's Ex. 12); and a second quarterly training progress report (AFAA Form 43) signed by Routhier on October 12, 1984 (Pltf's Ex. 13). All of the evaluations throughout 1984 placed the plaintiff at or above the trainee level of performance.

 However, during this period of time, the plaintiff contends that he was subject to acts and statements on the part of Routhier which exhibited a discriminatory animus directed toward him because of his national origin and age. Specifically, he claims that when he first met Routhier, he was told that because of his name, Routhier thought he was a woman. The plaintiff further contends that during lunch about a week after the start of his employment, Routhier asked him whether or not he was a member of the Palestine Liberation Organization ("PLO"); if Egyptians still eat raw meat; whether Egypt would still be faithful to the United States; and whether the Egyptians still use camels as a means of transportation. Routhier also indicated his doubts about Egyptian loyalty, stated that the Middle East was an area of trouble, and wondered why President Reagan still gave them financial aid. This was followed by various acts on the part of Routhier which the plaintiff interpreted to be hostile toward him because of his national origin, which included Routhier's refusal to invite him to a racquetball game; refusal to socialize with him on a daily basis at the office; refusal to eat a dip prepared by the plaintiff for a Christmas social function; and refusal to let him leave early prior to the Memorial Day weekend when the other employees were allowed to leave. Routhier also complained a number of times about plaintiff's accent. In addition, the plaintiff contends that Routhier exhibited a hostile nature toward him with regard to his age because he said he looked pale; was "going downhill"; that he should have a medical check-up because of his age; and made other general references to his mental and physical health. Finally, plaintiff contends that Routhier denied him proper training and deliberately made him look bad on some later audits. Routhier denies all of the plaintiff's allegations except that he did make a statement at one time that the plaintiff was ill and should take some time off. For the reasons set forth herein, the court accepts plaintiff's version of these events.

 Until September or October 1984, the plaintiff had little direct contact with Routhier since his principal hands-on one-to one training and supervision was by either Ziemba or Sciulli. It was about this time that Routhier first began to formulate in his mind that the plaintiff might have to be terminated prior to the end of the one year probationary period. At this point, there was nothing in the evaluations or files to indicate that the plaintiff was anything other than progressing in a satisfactory manner. Under the regulations, a decision should be made within one year from the date of employment whether or not a trainee auditor's performance was unacceptable so as to make it a waste of time and effort for him or her to continue with the program, even though on average, an auditor-trainee would take two years in which to become a fully qualified auditor. (Pltf's Ex. 9) After Routhier decided that he would have to terminate the plaintiff, he conferred with Crick in November 1984, on one of his routine visits to GAFB, and advised him as to what he viewed the problems were concerning the plaintiff's work and progression as an auditor-trainee. Crick spoke very briefly with the plaintiff about his work in general rather than in specific terms. Up to then, the plaintiff had received the usual training procedures for an auditor-trainee, but little one-on-one assistance from Routhier. This is in contrast to the assistance Routhier gave to the other two auditor-trainees, whom he apparently liked much better than the plaintiff. *fn4"

 It wasn't until Routhier completed a quarterly training progress report (AFAA form 43) signed on January 22, 1985 (Pltf's Ex. 14), covering the period from October 1, 1984 through December 31, 1984, that there is any real written documentation critical of plaintiff's progress. In that report, Routhier noted that the plaintiff was making limited progress and required further training. No further training was provided to the plaintiff subsequent to that report. Finally, the remarks concluded: "If his [plaintiff's] performance does not improve, we may seek removal during probationary period." Almost immediately thereafter, in late January or early February 1985, Routhier prepared a draft of a termination letter directed to the plaintiff.

 In February 1985, Crick sent Schlunz to GAFB in order to investigate and report as to whether the ...


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