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11/20/84 Richard Krodel, v. Andrew J. Young

November 20, 1984

RICHARD KRODEL, APPELLANT

v.

ANDREW J. YOUNG, IN HIS OFFICIAL CAPACITY AS ASSOCIATE COMMISSIONER, OFFICE OF HEARINGS AND APPEALS, SOCIAL

SECURITY ADMINISTRATION, ET AL.; RICHARD KRODEL

v.

ANDREW J. YOUNG, IN HIS OFFICIAL CAPACITY AS ASSOCIATE



Before: WRIGHT and WALD, Circuit Judges, and MacKINNON, Senior Circuit Judge.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1984.CDC.305

COMMISSIONER, OFFICE OF HEARINGS AND APPEALS, SOCIAL

SECURITY ADMINISTRATION, et al. DEPARTMENT OF HEALTH AND

HUMAN SERVICES and MARGARET M. HECKLER, SECRETARY in her

official capacity, Appellants

Nos. 83-1426, 83-1427

Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-03183)

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: This appeal concerns whether the Board of Hearings Appeals ("Board" or "BHA") of the Social Security Administration discriminated against the plaintiff, Richard Krodel, on the basis of age and whether Krodel can seek damages from his supervisors for infringing his first amendment rights. In 1976 and 1977, Krodel, then a 60 year old management analyst at the BHA, applied for five separate promotions and was rejected for each. After exhausting his administrative remedies, he brought suit against the Board and various BHA supervisors in their official capacity, claiming that the BHA's refusal to promote him violated the Age Discrimination in Employment Act , 29 U.S.C. ยง 621 et seq. He also sued various BHA officials, in their individual and official capacities, for infringing his first and fifth amendment rights. Krodel sought declaratory relief, promotion and back pay under the ADEA; he also sought damages from the individual defendants under his constitutional claim. Although the district court dismissed his constitutional claims, it found that the BHA had violated the ADEA in its refusal to promote Krodel to a Supervisory Management Analyst Position ("Position 1") in February of 1976.On appeal, the Board challenges the district court's age discrimination holding; Krodel challenges only its dismissal of his first amendment claim. *fn1 We affirm the district court. I. THE BACKGROUND

The age discrimination claim hinges on the circumstances surrounding the BHA's selection of Mary Pronovost rather than Krodel to fill Position 1. Krodel was initially hired as a management analyst by the BHA in December of 1968; in July of 1971, he was promoted from level GS-11 to level GS-12. His eight years of experience as a management analyst and his qualifications for Position 1 are not disputed by the government. Pronovost, who was 39 years old at the time of the promotion, joined the BHA in 1973 as a GS-11 staff assistant in the BHA's Division of Facilities after serving as a confidential assistant in another section of the agency. See Krodel v. Young, Civ. No. 80-3183, slip op. at 5-6 (February 9, 1983) [hereinafter cited as "ADEA] as a management analyst and his qualifications for Position 1 are not disputed by the government. Pronovost, who was 39 years old at the time of the promotion, joined the BHA in 1973 as a GS-11 staff assistant in the BHA's Division of Facilities after serving as a confidential assistant in another section of the agency. See Krodel v. Young, Civ. No. 80-3183, slip op. at 5-6 (February 9, 1983) [hereinafter cited as "ADEA] as a management analyst and his qualifications for Position 1 are not disputed by the government. Pronovost, who was 39 years old at the time of the promotion, joined the BHA in 1973 as a GS-11 staff assistant in the BHA's Division of Facilities after serving as a confidential assistant in another section of the agency. See Krodel v. Young, Civ. No. 80-3183, slip op. at 5-6 (February 9, 1983) [hereinafter cited as "ADEA Opinion"]. Pronovost had no management experience whatsoever until three months before her promotion. See id. at 6, 32-33.

On July 28, 1975, the BHA announced that it would consider applications for a GS-13 Supervisory Management Analyst position. Applications for the vacancy were solicited from all employees of the Department of Health and Human Services, for a period of approximately three weeks. See id. at 4. Krodel applied for this position, but Pronovost did not. In November of 1975, defendant Levi Ogden, the head of the relevant BHA department, decided to cancel the vacancy announcement because, in his judgment, none of the applicants demonstrated the requisite experience in management analysis. See id.

While the initial applications for Position 1 were pending, Pronovost attended a three-day training course in management for government administrators. See id. at 6. In December, Ogden requested that Pronovost be reassigned to a GS-12 Management Analyst position in the BHA's central office; effective December 7, 1975, she was reassigned to that position without competition. Id. On February 11, 1976, the vacancy announcement for Position 1 was reposted. The second announcement, however, solicited only employees of the central office and remained open only until February 18th. At trial, Ogden could give no explanation for reducing the time period and the area of consideration for the second vacancy announcement. See id. at 7. This time, both Krodel and Pronovost applied for the promotion to Position 1.

The BHA's personnel office determined that seven applicants, including Krodel and Pronovost, met the minimum qualifications for Position 1 and referred those names to a rating panel comprised of defendant Hallet Duncan and another BHA supervisor. The rating panel submitted to Ogden a "best qualified list" consisting of Krodel, Pronovost and another BHA employee, then 41 years old. After reviewing the best qualified list, Ogden wrote a memorandum recommending the selection of Pronovost. See id. at 13. Ogden stated that his recommendation was "based on personal observation and frequent professional contract with [Pronovost]" in her position in the Division of Faclities and "her outstanding performance of duties as a Management Analyst since December 1975," Memorandum to the Director of BHA (March 17, 1976), Joint Appendix at 211a. Consistent with standard BHA practice, Ogden's recommendation was approved by defendants Robert Trachtenberg, Director of the BHA, and John Poore, Assistant Director of the BHA.

After exhausting his administrative remedies, Krodel sued BHA officials for age discrimination in connection with the Board's failure to promote him to Position 1 and to four other positions at the BHA. He also alleged that the BHA had refused to promote him in retaliation for his critical comments about "agency mismanagement, misuse of funds and human ignorance and inefficiency," Plaintiff's First Amended Complaint P53, J.A. at 34a, thereby violating his first amendment rights. Finally sued BHA officials for age discrimination in connection with the Board's failure to promote him to Position 1 and to four other positions at the BHA. He also alleged that the BHA had refused to promote him in retaliation for his critical comments about "agency mismanagement, misuse of funds and human ignorance and inefficiency," Plaintiff's First Amended Complaint P53, J.A. at 34a, thereby violating his first amendment rights. Finally he claimed that the BHA's actions deprived him of a "vested property interest" in "promotion and managerial status." Id. He sought promotion and back pay from defendant Andrew Young, the present director of the BHA, and Bivens-type *fn2 damages from the other individual defendants.

Pursuant to the Board's motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the district court dismissed Krodel's constitutional claims at the onset of the litigation. See Krodel v. Young, Civ. No. 80-3183, mem. op. at 2-3 (July 9, 1983) [hereinafter cited as "Constitutional Opinion"]. The court ruled that Krodel could not establish that his alleged criticisms of the BHA constituted speech protected by the first amendment. See id. at 2-3. *fn3

After a six-day bench trial on the age discrimination claim, the district court concluded that the BHA violated the ADEA in its decision not to promote Krodel to Position 1. Applying the tripartite evidentiary scheme developed in McDonnel Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), the district court ruled that the BHA's explanation of the promotion decision was unworthy of credence and a pretext for discrimination. See ADEA Opinion at 29. The district court also found indicia of age discrimination in the Board's failure to follow its own promotion policies, statistical evidence, and largely uncontested anecdotal evidence ...


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