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LUMPKIN v. BROWN

April 22, 1997

LEDESTER LUMPKIN, et al., Plaintiffs,
v.
JESSE BROWN, Secretary of Veterans Affairs, Defendant.



The opinion of the court was delivered by: SHADUR

 Ledester Lumpkin ("Lumpkin"), Janet Blazek ("Blazek"), Patricia Brenner ("Brenner"), Ruth Bush ("Bush"), Joane Hawkins ("Hawkins") and Alice Sedlak ("Sedlak") are the plaintiffs remaining in this Age Discrimination in Employment Act ("ADEA") action against Secretary of Veterans Affairs Jesse Brown ("Secretary") after the issuance of the Opinion (see n.1). Following a bench trial, counsel for the litigants have provided their respective proposed Findings and Conclusions, and what are set out here represent this Court's resolution of the issues through its own Findings and Conclusions. To the extent (if any) that the Findings as stated here may be deemed conclusions of law, they shall also be considered Conclusions. In the same way, to the extent (if any) that matters later expressed as Conclusions may be deemed findings of fact, they shall also be considered Findings. In both those respects, see Miller v. Fenton, 474 U.S. 104, 113-14, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985).

 1. Jesse Brown is Secretary of the Department of Veterans Affairs ("Department"), whose National Acquisition Center ("Center") is a facility located in Hines, Illinois. Center is responsible for procuring medical equipment and supplies needed by medical centers and health care centers (more than 172 in number) administered by Department as well as other government agencies. Department's Hines facility is responsible for government contracts totaling billions of dollars. Stip. P1. *fn2"

 2. Department's employees at Center who are responsible for activities in connection with the solicitation, negotiation and award of contracts are classified as "contract specialists (series 1102)." Stip. P2. To enter into contracts on behalf of the United States and thus obligate government funds, a contract specialist must be awarded a warrant authority, and to secure such authority a contract specialist has to undergo four levels of classroom training. P. Ex. 21A at 1-13 to 1-14. Warrants begin at the basic amount of $ 25,000 and go up to an "unlimited" amount. Compare P. Ex. 20A, C and F with P. Ex. 20B; Cooper Dep. 78. No contract specialist is permitted to enter into a contract that exceeds her warrant authority.

 3. Under the United States' Outstanding Scholar Program ("Program"), agencies of the federal government may award "entry-level positions (GS-5/7)" to "college graduates who have an overall academic grade-point average (GPA) of 3.[5] or better, or who graduated in the top 10% of their class...." P. Ex. 3. Applicants who satisfy the Program's academic qualifications can be hired into entry level jobs without taking a competitive entrance examination. Amended Ans. P13; P. Ex. 1 at 27, P. Ex. 2 PP6-8, P. Ex. 10.

 4. Contract specialist is a job classification that does not require a college degree (Office of Personnel Management, which alone has the authority to establish such job requirements in the federal government, has determined that contract specialists need not possess a college degree regardless of their GS levels). It is therefore undisputed that a "college degree is not a validated job related requirement" for a contract specialist position. Stip. P6; P. Ex. 30 P3D. Nevertheless the contract specialist (series 1102) classification is one of some 112 job titles in the federal government that can be filled on an entry level basis through utilization of the Program. P. Ex. 3.

 5. Although a college degree is not a prerequisite for a contract specialist position, it was of course permissible for Department to use a means such as the Program in an effort to encourage persons having high academic qualifications to enter service with Department in such positions. What was not permissible was Department's coupling of the Program with an automatic promotion track--a track that would serve to advance, on an automatic basis that was totally unavailable to the over-40 contract specialist incumbents such as plaintiffs, such newly-hired entry-level employees, all of whom were recruited under circumstances that assured that the recruits were much younger than such incumbents, who were thus foreclosed from competing for such advancement--and to do so in order to prefer the young recruits over the incumbents in the ADEA-protected class.

 6. In September 1990 Department's Office of Acquisition and Material Management in Department's Washington, D.C. Central Office ("Central Office") began to require Department's field facilities, including Center, to obtain Central Office approval for all employment selections within the contract specialist classification, GS-5 through GS-12. Stip. P4; P. Ex. 4; Darr Dep. 41-42. Gerard Maresca ("Maresca") was the official responsible for drafting that policy. Maresca was the chief of personnel at the Central Office, in which position he had authority over all personnel programs and operations at Center. Stip. P4. Pursuant to the directive that Maresca drafted dated September 12, 1990, Center could neither hire nor promote contract specialists unless it had first secured the approval of Assistant Secretary Dale Duvall ("Duvall"). But in practice it was Maresca who recommended whether Duvall should accept or reject an application. Duvall Dep. 13, 18.

 7. In the fall of 1991 Chief of Personnel Maresca began discussions with Center's management officials about the selection and advancement of personnel for contract specialist positions at Center. Center's Assistant Director Tom Cooper ("Cooper") first learned about the Program during that period in conversations he had with Maresca, one of his superiors. Cooper Dep. 17-18. Cooper's November 5, 1991 memorandum outlined a plan to recruit Program candidates "at area colleges," just as Maresca had instructed him to do. P. Ex. 5; Cooper Dep. 46, 73. And while Program recruits ("Programees") would be hired into GS-7 contract specialist openings, Cooper knew from his conversations with Maresca that the latter wanted all Program candidates to be on a GS-7 to a GS-12 promotional track such that the Programees would advance on that noncompetitive career track in four years' time. Cooper Dep. 33, 75-76.

 8. In April 1992 Maresca made a rare on-site visit to Center. In a get-together in the office of acting personnel chief Gerald Magnuson ("Magnuson"), with other personnel officers from the supply depot at Hines *fn3" also present, the subject was mostly personnel shop talk. Tr. 104-07; Magnuson Dep. 9-10. It was only at a second meeting--in the office of Center's Director James Johnson ("Johnson")--that Maresca got down to brass tacks on how to deal with the 20 or so unfilled vacancies in the rank of contract specialists at Center. And it was in that context that Maresca explained that the Program was "an alternative to the Merit Promotion Plan." Tr. 32; Magnuson Dep. 10.

 9. If Maresca's April 1992 visit was intended to relieve the "bottleneck" in the selection of contract specialists at Center, Maresca need not have traveled from his office in Washington to Center for a solution. As Magnuson testified, the bottleneck was of Maresca's own making and was a direct outgrowth of his September 1990 directive that required Central Office's approval before Center could hire or promote contract specialists. Magnuson Dep. 14; Maresca Dep. 60. Foster Palmer ("Palmer"), a division chief at Center since 1974, also met with Maresca during the latter's April 1992 visit to Center. When Palmer pointed out to Maresca that the requirement of Central Office approval was "hampering the operation by not getting the work done," "Mr. Maresca's response" was that the Program--a program Palmer was not familiar with--"was the only way" that the contract specialist vacancies could be filled, with Maresca explaining that the Programees were to be on "a promotional ladder position of 7 through 12." Palmer Dep. 17-20, 55.

 10. Of the various personnel topics on Maresca's agenda during his April 1992 meetings at Center (P. Ex. 6), *fn4" the one proposal that Maresca advanced that did materialize with concrete results was his Program initiative. Magnuson Dep. 15. Hence Program candidates, who were recruited exclusively at Chicago area colleges during the spring and summer of 1992 (Palmer Dep. 19, Cooper Dep. 30, 46), were appointed on a noncompetitive basis to GS-7 positions, and they were simultaneously placed on noncompetitive career ladders that could elevate them to GS-12 jobs within three years. Amended Ans. PP13-14; P. Exs. 14B-E, 23A-B.

 11. By the time that the 12 Programees were hired at Center in the summer of 1992 (Stip. P30; P. Ex. 9), personnel officer Magnuson had already prepared position descriptions for the contract specialist jobs that the Programees would fill, and those position descriptions--some dated as early as May 20, 1992--classified those positions as career ladder jobs with promotional potential from GS-7 to GS-9 to GS-11 to GS-12. P. Exs. 22-A-B, 23C; see also P. Exs. 14B, 14E, 14H, 14J, 14K; Magnuson Dep. 33-35. Magnuson testified that in preparing those position descriptions so that Programees were placed on noncompetitive career ladders from GS-7 to GS-12, he followed Maresca's "suggestion" to that effect. Tr. 30; Magnuson Dep. 36. Magnuson's management colleagues at Center similarly identified Maresca as the Central Office official responsible for germinating the idea of placing Programees on noncompetitive career tracks from GS-7 to GS-12. Magnuson Dep. 65, Cooper Dep. 33, Johnson Dep. 21-22, Palmer Dep. 19.

 12. Secretary has acknowledged in his Response to Supplemental Interrogatories P8b that "the decision to recruit Outstanding Scholars for Grade 7/9/11/12 career ladder positions was made approximately in the Spring of 1992 after receiving Mr. Maresca's recommendations." Although Maresca testified that Johnson, Magnuson, Cooper and Palmer must have misunderstood him if they testified (as they did) that Maresca came up with the idea to place Program recruits on noncompetitive career ladders, this Court discredits Maresca's testimony and credits the testimony of the other witnesses.

 13. According to Maresca, as far as he knew Programees had been hired on a GS-7/9 career ladder (Dep. 148-50):

 
I spoke to Mr. Magnuson, Jerry Magnuson, being the personnel officer or personnel specialist at the NAC. I asked him about the hiring of the outstanding scholars, at what career ladder they were hired. He advised me that they were hired under the old GS-9 career ladder positions.
 
* * *
 
The question asked was: How were they hired? I was told by Mr. Magnuson under the GS-9 career ladder.
 
* * *
 
They were hired with promotional potential to nine.
 
* * *
 
They could not advance beyond nine without further competition.

 Magnuson, however, refuted Maresca's account, and this Court credits Magnuson's testimony (Dep. 45-46) and discredits Maresca's:

 
Q. Did you ever tell Mr. Maresca that his suggestion to you...made in April of '92...that outstanding scholars being put on a career ladder GS-7/9/11/12 had only been hired under a GS-7/9 authority?
 
A. No.
 
* * *
 
Q. [After reading from Maresca's deposition testimony so stating] Do you recall having such a conversation with Mr. Maresca?
 
A. No, I don't.

 14. Maresca's purported conversation with Magnuson, in which the latter supposedly told Maresca that Programees were hired on the "old GS-9 career ladder," allegedly occurred in late August or early September 1992, and is reflected in Maresca's purported "reply" to a September 4, 1992 e-mail message from Duvall to Johnson. P. Ex. 29. But Duvall himself raised serious doubts about the authenticity of that document: Duvall testified that he had never seen the contents of the so-called reply, that the contents were "strange" and "nonresponsive" to his e-mail message and that he believed the reply had been created by someone "manipulating" the e-mail system. Tr. 490; Duvall Dep. 84-85. Moreover, it would have been wholly incongruous for Magnuson to have made any such response to Maresca: After all, Magnuson was the very person who completed the paperwork earlier in the summer of 1992 placing Programees on the GS-7/9/11/12 noncompetitive career ladders--just as Maresca had instructed. P. Exs. 23B and 23C; see also P. Ex. 14B, which reveals that on June 29, 1992 Magnuson approved a Programee's career ladder to Grade 12; and see also P. Ex. 14C, a June 28, 1992 notification of personnel action bearing Magnuson's signature, which notes that the GS-7 contract specialist job that the Programee was being hired into "is developmental to GS-12." All of this also strongly supports this Court's already-expressed discrediting of Maresca.

 15. To the same effect, Maresca claimed in his Dep. 153-54 that it was some two years later (after this action had been brought in June 1994) that he was disabused of the notion (purportedly gained in his supposed, but in fact nonexistent, conversation with Magnuson in late August or early September 1992) that Programees were hired only on a GS-9 career ladder:

 
Q. Did you learn at some point in time after this memo of September 4, '92...that the information Mr. Magnuson gave you, that the individuals hired under the OSP in '92, capped out at a GS-9 was not true?
 
A. Yes.
 
Q. How did you learn that?
 
A. I believe I had a discussion with Ms. Darr. Ms. Darr being the new director at the NAC. She advised me that, no, that was not true, that apparently these people were hired with higher career ladders. I am not sure when. It was not too long ago. I can't pinpoint a date.
 
Q. When you say not too long ago, you mean in the last few months?
 
A. Probably around the time the case came up.
 
* * *
 
Q. But while this case here, the Lumpkin case was pending?
 
A. Right. I was under the impression that these people were hired with a career ...

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