Unpublished Disposition, 908 F.2d 976 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 908 F.2d 976 (9th Cir. 1983)

No. 89-15526.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and STEPHENS, Senior District Judge.** 

MEMORANDUM*** 

OVERVIEW

Robert Inman, plaintiff/appellant, filed an age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-633a, alleging disparate treatment in the Army's decision not to promote him to the position of Supervisory Interdisciplinary Engineer, GS-14, for the U.S. Army Corps of Engineers ("Army"). George Weddell, the appointing authority for the Army, appointed Lawrence R. Frierman rather than plaintiff to the GS-14 position. On August 5, 1983, when plaintiff was denied his promotion, he was 58 years old. Frierman was 53. After a bench trial the trial court judge found that plaintiff's age was not a determining factor in the selection of Frierman over Inman and entered a judgment for the defendant. Inman timely appealed and we affirm.

DISCUSSION

In order to prevail on a claim of age discrimination under the ADEA on a disparate treatment theory1  appellant must prove that age was a "determining factor" in the Army's decision not to promote him. Steckl v. Motorola, 703 F.2d 392, 392 (9th Cir. 1983); Mundy v. Household Finance Corp., 885 F.2d 542, 545 (9th Cir. 1989). To prove an age discrimination disparate treatment claim, Inman first must establish a prima facie case. If he does so the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. If the defendant provides such a reason the plaintiff, in order to prevail, must demonstrate that the employer's alleged reason for the adverse employment decision is a mere pretext concealing its discriminatory motive. Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1436-37 (9th Cir. 1990); Mundy, 885 F.2d at 545. The ultimate burden of proving that age was a determining factor in the employment decision rests with the plaintiff. Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir. 1981)

Inman can establish a prima facie case of age discrimination by showing that he was over 40 years of age, qualified and was denied a promotion which was given to a substantially younger employee. Steckl, 703 F.2d at 393; Mundy, 885 F.2d at 545. It is undisputed that appellant is over 40, was qualified for the promotion and was denied it. However, the promotion was given to a man over 50 years of age who is only five years younger than Inman. When deciding whether a plaintiff has a prima facie case " [i]f the replacement is only slightly younger than the plaintiff, then it is less likely that an inference of discrimination can be drawn." Douglas, 656 F.2d at 533. However, prima facie proof is possible even if the replacement is not significantly younger if "other direct or circumstantial evidence supports an inference of discrimination." Id. The district court found that Inman had established a prima facie case. It is unnecessary for us to reach this issue because we will assume, arguendo, that Inman put forth a prima facie case.2 

Because the district court decided that Inman had established a prima facie case at trial, a presumption of discrimination was raised, thereby shifting the burden to the Army to produce evidence that Inman was denied promotion for legitimate, nondiscriminatory reasons. The district court found that the defendant had produced a substantial amount of evidence of legitimate nondiscriminatory reasons for the appointment of Frierman. Specifically, the appointing authority of the Army, Weddell, stated that he chose Frierman because he had more experience than Inman in the management of large projects and in civil engineering matters. Weddell also testified that the plaintiff's lack of a formal engineering degree and the fact that the first seventeen years of his experience were spent at nonprofessional levels factored in favor of Frierman. We agree with the district court that, assuming these reasons are not pretextual, they would justify the Army's promotion decision.

Appellant argues, however, that appellee's reasons are merely a pretext. " 'A plaintiff can show pretext in two ways either (1) directly by persuading the court that a discriminatory reason more likely motivated the employer or (2) indirectly by showing that the employer's proffered explanation is unworthy of credence.' " Merrick, 892 F.2d at 1437 (quoting Cotton v. City of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987)); accord Douglas, 656 F.2d at 534. Appellant provided no evidence demonstrating the likelihood that the Army was motivated by discrimination. Weddell's testimony that he believed that Frierman was older than plaintiff was unchallenged. Appellant offered no reasons why it would be in the Army's interest to discriminate between a 58 and a 53 year old. Instead, appellant urges us to ignore the Army's proffered explanation because he claims he is clearly better qualified than Frierman and that the civil service rules require that he have priority over Frierman.

We agree with the district court that there is no evidence that Inman's qualifications are superior to Frierman's. Appellant failed to rebut evidence that Frierman was better qualified because he had more experience in civil works, had more experience in managing large projects and had more experience as an engineer. Inman may disagree with the Army's assessment of his qualifications relative to Frierman's but that does not prove pretext. "The reasons for a business decision need not meet the unqualified approval of the judge or jury so long as it is not based on age." Douglas, 656 F.2d at 534.

Finally, the civil service rules do not provide evidence that the Army's rationale for hiring Frierman is unworthy of credence.3  Appellant argues that under Army regulations his repromotion rights were senior to Frierman's rights as a Priority Placement Candidate. At the trial, Hangsleben a personnel officer for the Army, testified that Inman's rights were not superior to those of Frierman. Whether or not Inman had priority under Army regulations, however, is not the issue. Even if Inman's rights were superior to Freirman's that fact would not provide the necessary proof of discriminatory motive. It is undisputed that Weddell was given the files of both Inman and Frierman and believed that neither had priority over the other. There is no evidence that Weddell knew or should have known that Inman had priority. Without any evidence of Weddell's intent to violate Army rules there is no basis to infer that Weddell acted from an illegitimate motive.

Inman simply has failed to produce any specific, substantial evidence that age was a determining factor in the Army's decision to promote Frierman. We, therefore, affirm the decision of the district court in favor of the defendant.

AFFIRMED

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

Hon. Albert L. Stephens, Jr., Senior United States District Judge, Central District of California, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Appellant claims that this case is either or both a disparate treatment and a disparate impact case. We will analyze this case, as did the district court, as a disparate treatment case. Disparate impact involves a facially neutral policy or practice that tends to screen out members of a protected group. See Douglas v. Anderson, 656 F.2d 528, 531 n. 1 (9th Cir. 1981) (citing Griggs v. Duke Power Co., 401 U.S. 424 (1971)). Appellant's disparate impact theory appears to rest on an argument that the Army's decision to prefer a degree in engineering over an equivalency was a facially neutral policy which tended to screen out older individuals. This claim is completely unsupported by the facts presented and was not argued in the district court. The district court found in this case that the Army considered the lack of a formal college degree along with the fact that the first 17 or 18 years of appellant's government job experience were spent at nonprofessional levels to be important factors in choosing Frierman over Inman. Appellant has provided no evidence that consideration of the number of years experience at a professional level was not valid. Nor has he provided evidence that the Army has a policy of not considering equivalencies. Moreover, appellant has not even proffered evidence that men in the Army with engineering degrees are younger on average than men in the Army with equivalencies. Therefore, we will not consider this case under a disparate impact theory

Disparate treatment concerns an individual who is subjected to discriminatory treatment for prohibited reasons. This is the appropriate analysis for the instant case.

 2

Were we to reach this issue we would find that Inman has provided no evidence that "identifies age as the likely reason for the discharge", Douglas, 656 F.2d at 533

 3

On appeal appellant appears to be arguing that we are to decide a separate claim of whether the Army violated its rules on promotion in addition to deciding the ADEA claim. The only claim in the complaint and at the trial was that the defendant had failed to promote plaintiff because of his age in violation of ADEA. We will only consider the evidence on civil service appointment/promotion priorities as they apply to the question of whether defendant's decision to appoint Frierman was motivated by an intent to discriminate against Inman on the basis of age

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