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Jones v. Garrett

filed*fn*: May 19, 1993.

HENRY B. JONES, PLAINTIFF-APPELLANT,
v.
H. LAWRENCE GARRETT, III, SECRETARY OF THE NAVY, UNITED STATES DEPARTMENT OF THE NAVY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-90-01544-VRW. Vaughn R. Walker, District Judge, Presiding This opinion substituted by court for withdrawn opinion of February 4, 1993.

Before: Hug, Fletcher, and Brunetti, Circuit Judges

Order

The memorandum Disposition filed February 4, 1993, is withdrawn.

MEMORANDUM

I. Introduction

Mr. Jones appeals in propria persona from the district court's order granting the Navy's motion for summary judgment on his claim alleging violation of the Age Discrimination In Employment Act (ADEA), 29 U.S.C. § 623. Appellant applied for employment as a supervisory communications specialist, pursuant to an advertisement placed by the Navy Regional Data Automation Center (NARDAC). He was classified by the civilian personnel office as one of nine applicants who were "highly qualified," but was not among the four finalists selected from that pool by the three-member screening panel. From those four finalists, the "selecting official" selected two applicants who were already working at NARDAC.

Appellant brought suit for damages and injunctive relief against the Navy, alleging that he was unlawfully discriminated against on the basis of his age. At the time of his application, appellant was fifty-four years old. The applicants selected for the positions were thirty-four and forty-four years of age.

II. Standard of Review

A grant of summary judgment is reviewed de novo. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir. 1992). We review the record "in the light most favorable to Jones to determine whether there exist genuine issues of material fact regarding his claims," id., and whether the district court correctly applied the relevant substantive law. FDIC v. O'Melveny & Myers, 969 F.2d 744, 747-48 (9th Cir. 1992).

III. Discussion

Under the ADEA, a plaintiff has the ultimate burden of proving that age was a "determining factor" in an employer's decision affecting him. Steckl v. Motorola, Inc., 703 F.2d 392 (9th Cir. 1983), quoting Douglas v. Anderson, 656 F.2d 528, 531 (9th Cir. 1981). We agree that appellant had established a prima facie case of discrimination under Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). He was within the protected class, he applied for an available position for which he was qualified, and he was not hired for the position which was given to a younger person. See Steckl, 703 F.2d at 393.

Establishing a prima facie case does raise an inference of discrimination. Burdine, 450 U.S. at 254. However, "we have made clear that a plaintiff cannot defeat summary judgment simply by making out a prima facie case," if the employer articulates a legitimate, nondiscriminatory reason justifying the employment decision. Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991). The burden then shifts back to the plaintiff to demonstrate that the employer's reason was merely a pretext for discrimination. Steckl, 703 F.2d at 393.

The Navy relies on one principal consideration to justify the panel's failure to include appellant among the final four applicants -- his lack of recent, hands-on technical experience in Automated Data Processing (ADP). According to the Navy, the panel was informed that the position involved as much as two-thirds first-line technical duties.

The panel apparently viewed appellant's experience in this area to be lacking in two respects: His most recent experience was in a high-level administrative capacity, and the work which the panel viewed as most relevant to the instant application--his work with the General Services Administration--culminated in 1981, some six years prior to the panel's action. The panel expressed concern that his technical knowledge might be outdated in this rapidly changing field. It also perceived that most of appellant's experience lay in the area of voice communications rather than the automated data transmission contemplated by ...


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