Sack v. Bentsen

March 20, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1896

EDWARD SACK,

Plaintiff, Appellant,

v.

LLOYD BENTSEN, SECRETARY OF THE DEPARTMENT OF TREASURY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

Edward Sack on brief pro se.

Donald K. Stern, United States Attorney, and Cheryl L.

Conner, Assistant U.S. Attorney, Civil Division, on brief for

appellee.

Per Curiam. Plaintiff Edward Sack commenced this civil

action against the Secretary of the Treasury after the

Internal Revenue Service (IRS) rejected him for a position as

an Estate and Gift Tax Attorney in its Boston office. Sack

alleged that the IRS's system of rating the applicants for

these positions violated the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. 621 et seq., and the Veterans'

Preference Act, 5 U.S.C. 3311, 3313. Both sides moved for

summary judgment, and the district court granted judgment for

the Secretary. Sack now appeals. We affirm.

I. BACKGROUND

The following facts are undisputed. Sack is a veteran

who graduated from law school in 1959. He last worked as an

attorney in 1986. In November 1990, the IRS announced that

it was accepting applications for Estate and Gift Tax

Attorney positions (Grades 9 and 11) in its Boston and

Portsmouth offices. Sack was 58 years old when he sought

this position. A total of 151 persons submitted applications.

All applicants were evaluated and assigned a numerical

score pursuant to the Single Agency Qualification Standard

(SAQS) for Attorney (Estate Tax) and Law Clerk (Estate Tax)

described in the IRS's Qualifications Standards and

Guidelines Handbook.1

1. Applicants were not required to complete a written
examination. Rather, they were rated based on the extent and
quality of their education, experience and training. (App.

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Under the SAQS, all applicants who met the basic minimum

qualifications for the positions received a base score of 70

points. Additional points could be added to an applicant's

base score if he or she possessed recent education or

experience. For example, an applicant could receive an

additional 15 points if he or she had either completed law

school, been admitted to a bar, or completed at least 6

months of progressively responsible legal experience within

the past 12-18 months. These points were also available to

applicants who had completed accounting education or

experience within similar time frames. Ten points could be

added to an applicant's score if the applicant's legal

education or professional legal or accounting experience had

been obtained within the past 2-4 years. However, the SAQS

did not provide for the award of additional base points for

legal experience or education completed more than 3 years

from the date of the application. (App. 46-47).2

Using this rating system, IRS Managers Richard Murray

and Thomas Fleming and Branch Chief Richard Teed ranked the

applicants for the Estate Tax Attorney positions. Sack, who

was employed as a salesman for Lechmere when he submitted his

42).

2. Bonus points were available if an applicant had special
qualifications, e.g. excess professional legal or accounting
experience. In addition, section 905.218(3) of the SAQS
required the IRS to observe veterans' preference procedures
in selecting estate tax attorneys.

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application, received a total numerical score of 76. He was

given 70 points for having a law degree and 5 points for

being a veteran under 5 U.S.C. 3309.3 Sack was only given

1 point for his past legal experience, which was completed

beyond the periods for which the 10-15 additional base points

were available.4

Sack's was the third lowest score among all the

applicants who were considered for a position in Boston.

Applicants whose scores were 90 or above were deemed the

"Best Qualified Candidates." Approximately 20 of these

candidates were interviewed, including 5 who were between the

ages of 55 and 60. Ultimately six persons were hired for the

Boston office and two were hired for the Portsmouth office.

Seven of the eight new hires had received an additional 15

3. 5 U.S.C. 3309(2) authorized the addition of five points
to the rating scores of veterans who, like Sack, were
preference eligible under 5 U.S.C. 2108(3)(A).

4. Sack's application indicated that he last worked as a
self-employed attorney between May 1985 and December 1986.
He was unemployed between January 1987 and September 1989,
when he began to work for Lechmere. Between 1960 and 1962,
Sack worked as an attorney for the IRS issuing rulings on
educational and charitable organizations that sought federal
income tax exemptions. He was employed as an associate
counsel for a life insurance company between 1971 and 1978,
during which time he reportedly dealt with estate and gift
taxes. Sack's remaining experience is characterized by
various short-term attorney jobs and periods of unemployment.

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points for completing law school within the past 18 months.5

Two of the eight persons who were hired were older than Sack.

Sack was notified that he had not been selected for a

position by letter dated February 1, 1991.6 Shortly

thereafter, Sack contacted an Equal Employment Opportunity

Counselor. On or about April 1, 1991, Sack filed a formal

Individual Complaint of Employment Discrimination with the

Department of the Treasury (DOT). (App. 57). He charged

that the provisions of the SAQS that allowed 15 points to be

added to the scores of applicants who had recently graduated

from law school discriminated against him on the basis of age

because they obviously inured almost exclusively to the

benefit of younger applicants. Sack also alleged that these

provisions effectively nullified the veterans' preference

rules because they allowed additional points to be granted to

a nonveteran who had the same amount of legal education as a

veteran. Sack's complaint was accepted and investigated

by the DOT's Chicago Regional Complaints Center (RCC). On

September 6, 1991, the RCC issued a Proposed Disposition

Letter which found no discrimination. Sack requested a

hearing before an administrative law judge. He later

5. One received these points for receiving an LLM within
the past year.

6. The letter stated, "This is no reflection on your
qualifications. All candidates were extremely well
qualified, ...."

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withdrew that request and requested a final agency decision

on the record. (App. 101, 108). On April 20, 1992, after

Sack's administrative complaint had been pending for over a

year without a final decision from the DOT, Sack commenced

this civil action. On February 3, 1993, the DOT issued a

Final Decision that again found no discrimination.

Shortly after the DOT issued this decision Sack moved

for summary judgment. His motion was supported by the

pleadings, answers to interrogatories, and various documents

related to the IRS's application process and Sack's

administrative complaint.7 Sack argued that the evidence

established a prima facie case of age discrimination through

disparate treatment under the familiar McDonnell Douglas

formula and that the IRS failed to identify a legitimate

nondiscriminatory reason for its point-rating system. He

specifically charged that the reasons that the IRS had

offered in support of its rating system were inconsistent and

contained admissions of age discrimination.8 And while Sack

7. Among Sack's supporting documents were his application
for federal employment, relevant excerpts from the SAQS,
Sack's complaint (and supporting affidavit) to the DOT, an
excerpt from the DOT's report of investigation on that
complaint, the DOT's 9/6/91 Proposed Disposition Letter, and
the DOT's 2/3/93 Final Decision.

8. For example, the DOT's report of investigation indicated
that the SAQS compensated recent law school graduates for the
recency of their education so that they could numerically
compete with candidates who earned points for recent
experience. The DOT's Final Decision stated, inter alia,

that Sack was, "correct in his assertion that a policy of

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expressly disclaimed reliance on the disparate impact theory

of relief, he also attacked the DOT's Proposed Disposition

Letter, which concluded that there was no discrimination

under the disparate impact analysis.9 S a c k a l s o

maintained that the granting of 15 additional points to

recent law school graduates while denying same to him

constituted age discrimination as a matter of law. He claimed

that he, too, was entitled to 15 additional base points for

his legal education or experience. Sack noted that had he

been awarded these points, his score would have tied the

scores of two of the applicants who had received positions,

and he, as a veteran, would have been entitled to be hired

first under 5 U.S.C. 3313.10 Finally, Sack argued that

the IRS's failure to award him 15 additional points

granting credit for recent graduation from law school affects
a category of persons predominantly under 40." Sack argued
that these comments, which were taken out of context,
constituted admissions of age discrimination.

9. Sack argued that the DOT erred in concluding that the
SAQS did not result in age discrimination simply because two
persons older than him were hired. He maintained that the
DOT's analysis relied on a sample that was too small to be
reliable for purposes of determining whether the SAQS had a
disparate impact. However, Sack's primary argument was that
the SAQS were obviously discriminatory. Thus, he maintained
that the DOT erred in applying the disparate impact test.

10. 5 U.S.C. 3313 prescribes how the lists of applicants
for federal positions are to be prepared. The statute
provides, in relevant part, that, "[t]he names of preference
eligibles shall be entered ahead of others having the same
rating."

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diminished his veterans' preference and violated 5 U.S.C.

3311.11

The Secretary filed an opposition to Sack's motion which

included a cross-motion for summary judgment. The

Secretary's motion was supported by affidavits from several

IRS employees and the records generated by the IRS's

investigation of Sack's administrative complaint. The

Secretary argued, inter alia, that Sack failed to prove a

prima facie case of age discrimination through disparate

treatment. While the Secretary conceded that Sack was within

the protected age group and minimally qualified for the

position, he argued that the McDonnell Douglas test was not

satisfied because two persons older than Sack had been hired.

Alternatively, the Secretary maintained that even if Sack had

made out a prima facie case, the IRS had successfully

rebutted it with evidence that the IRS had a legitimate

business interest in using a rating system that favored

11. 5 U.S.C. 3311 provides, in relevant part:

In examinations for the competitive service in
which experience is an element of qualification, a
preference eligible is entitled to credit -
* * *
(2) for all experience material to the position for
which examined, including experience gained in
religious, civic, welfare, service and
organizational activities, regardless of whether
he received pay therefor.

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recent over remote education and experience.12 The

Secretary also argued that Sack had failed to prove that the

point-rating system was a pretext for unlawful discrimination

and that the Veterans' Preference Act did not give Sack a

cause of action. Thus, the Secretary claimed that he was

entitled to summary judgment.13

On July 21, 1994, the district court issued a decision

which granted the Secretary's cross-motion for summary

judgment. The court eschewed the jurisdictional issues and

held that Sack failed to make out a prima facie case of age

discrimination through disparate treatment. Because Sack's

score did not reach the 90-point threshold of the "Best

12. The DOT submitted an affidavit from Amy Chassid, chief
of one of the IRS's organizational and planning sections. She
averred that the SAQS gave greater weight "to those
applicants who demonstrate current familiarity with legal
matters ... by either experience or education." (emphasis

supplied). She further averred that it was reasonable for
the IRS to prefer applicants with recent rather than remote
experience or education because recent education or
experience was easier to evaluate and could reflect up-to-
date knowledge of legal principles and agency practices. In
addition, affidavits from the IRS supervisors who actually
ranked the applicants (Murray and Fleming) indicated that
Sack did not receive additional points because he had been
out of practice for several years and thus lacked recent
legal experience.

13. The Secretary also argued that the district court lacked
jurisdiction over Sack's claims because Sack failed to
exhaust his administrative remedies and further failed to
file a timely complaint with advance notice to the EEOC as
required by 29 U.S.C. 633a(d). Sack filed a reply to the
Secretary's opposition which argued that this case should not
be dismissed for the failure to exhaust administrative
remedies and otherwise reiterated Sack's previous arguments.

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Qualified Candidates", the district court reasoned that Sack

was not qualified for the position and did not address Sack's

contention that the IRS's system of awarding these points

violated the ADEA. The court also concluded that the

Veterans' Preference Act did not require that 15 additional

points be added to Sack's base score simply because he was a

veteran. Sack filed a timely notice of appeal from this

ruling.

II. DISCUSSION

We afford plenary review to the order granting the

Secretary's motion for summary judgment and review the record

in the light most favorable to Sack. Mesnick v. General

Electric Co., 950 F.2d 816, 822 (1st Cir. 1991). "In an ADEA

failure to hire discrimination suit, plaintiff bears the

ultimate burden of persuading the factfinder that the

employer illegally discriminated against plaintiff by

refusing to hire plaintiff on the basis of his/her age."

Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.

1994). Where, as here, the plaintiff elects to proceed on a

disparate treatment theory, he must prove that the IRS

harbored a discriminatory motive when it decided not to hire

him. See, e.g., Hazen Paper Co. v. Biggins, 113 S. Ct. 1701,

1705 (1993)(proof of discriminatory motive is critical); Holt

v. Gamewell Corp., 797 F.2d 36, 37 (1st Cir. 1986)(similar).

Absent direct evidence of discrimination, to establish a

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prima facie case of age discrimination based on a failure to

hire, the "plaintiff must show that (1) s/he is a member of a

protected class, (2) s/he applied and was qualified for the

position in question, (3) that despite his/her

qualifications, s/he was rejected, and (4) that, after

rejection, the position remained open and the employer

continued to seek applicants from persons of the

complainant's qualifications." Woods, 30 F.3d at 259. When a

plaintiff adduces sufficient evidence to establish a prima

facie case, an inference of discrimination arises, and the

burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its decision not to hire the

plaintiff. Id. at 720.14 And "once the employer has

proffered a legitimate, nondiscriminatory reason for its

adverse employment decision, the presumption created by the

...[plaintiff's] prima facie case disappears, and the burden

falls back upon the ... [plaintiff] to prove that the reason

advanced by the employer for the adverse employment action

constituted a mere pretext for unlawful age discrimination."

LeBlanc, 6 F.3d at 842. "To meet this burden, the claimant

14. "The employer's obligation is simply one of production."
LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir.

1993). That is to say, the defendant is not required to
persuade the factfinder that it was, in fact, motivated by
the proffered reason and not by a discriminatory one. See,

e.g., Oliver v. Digital Equipment Corp., 846 F.2d 103, 108

(1st Cir. 1988); Loeb v. Textron, Inc., 600 F.2d 1003, 1011

(1st Cir. 1979). The burden of persuasion remains with the
plaintiff at all times. LeBlanc, id.

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must prove both that the employer's articulated reason is

false, and that discrimination was the actual reason for its

employment action." Woods, 30 F.3d at 260. Thus, to avoid

summary judgment, the plaintiff must "elucidate specific

facts which would enable a jury to find that the reason given

was not only a sham, but a sham intended to cover up the

employer's real motive: age discrimination." Medina-Munoz v.

R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990).

On appeal, Sack argues that the district court erred in

holding that he was not qualified for the Estate Tax Attorney

position since the Secretary conceded that he was at least

minimally qualified by virtue of his law degree and the

district court failed to address his contention that the

point-rating system unlawfully discriminated against him.

Sack also maintains that the SAQS contain direct evidence of

discrimination because they award more points for recent than

remote education and experience and that the DOT's

submissions admitted as much. Finally, Sack reiterates his

contention that the IRS's point-rating system is a subterfuge

to deprive veterans of their veterans preference in violation

of 5 U.S.C. 3311, 3313.15

15. Sack also contends that he should be deemed to have
exhausted his administrative remedies because the time for
filing a final agency decision had elapsed before he filed
suit. As it is clear that Sack is not entitled to relief on
the merits, we need not address the jurisdictional issues.
See Norton v. Mathews, 427 U.S. 524, 530-32 (1976).

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At the outset we reject Sack's suggestion that the IRS's

point-rating system evinces direct evidence of age

discrimination simply because it allows additional base

points to be awarded to applicants with recent legal

education or experience. Nothing in the SAQS makes an

applicant's score contingent upon his or her age. "The ADEA

'requires the employer to ignore an employee's age ... it

does not specify further characteristics that an employer

must also ignore.'" E.E.O.C. v. Francis W. Parker School, 41

F.3d 1073, 1076 (7th Cir. 1994)(citation omitted). We

further see nothing in any of the DOT's affidavits or

decisions which constitute an admission of age

discrimination.16 Thus, as direct evidence of age

discrimination is lacking, Sack's case hinges upon whether he

has met his burden under the McDonnell Douglas formula.

While the district court held that Sack failed to

establish a prima facie case because he was not qualified for

the position, the DOT conceded that Sack was at least

minimally qualified by virtue of his law degree. It is also

16. While the DOT's Final Decision observed that a policy of
granting credit for recent graduation from law school
affected persons predominantly under forty, it went on to
note that the SAQS also give credit for recent legal
experience. Sack was not eligible for the latter because had
been out of practice for several years when he applied for
the Estate Tax Attorney position. Thus, the DOT concluded
that Sack would not have been selected even if the SAQS did
not grant additional base points for recent graduation from
law school. This in no way implies an admission of age
discrimination. (App. 106).

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undisputed that Sack was within the protected age group, that

he was rejected despite his qualifications, and that six of

the eight persons who were ultimately hired were under 40.

This circuit does not require plaintiffs to prove that

persons outside the protected age group were hired in order

to establish a prima facie case of age discrimination. See,

e.g., Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 n.7

(1st Cir. 1994). Under these circumstances, we shall assume

that Sack's showing was sufficient to raise a presumption of

discrimination under McDonnell Douglas. The burden then

shifted to the Secretary to articulate a legitimate,

nondiscriminatory reason for the IRS's decision not to hire

Sack.

The Secretary met this burden by submitting evidence

that the applicants who were hired were more qualified than

Sack because they had more current legal knowledge, as

evidenced by their recent legal education. Sack was ranked

below these individuals because he had not practiced law in

several years and thus was ineligible for additional points

based on recent legal experience. Faced with this showing,

it then became Sack's burden to prove that the IRS's point-

rating system rewarded recent education or experience as a

proxy or pretext by which to accomplish unlawful age

discrimination. Sack failed to make this essential showing.

Recent legal education or experience, like years of service,

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is analytically distinct from age. The IRS could reward the

former without necessarily engaging in unlawful age

discrimination. Cf. Hazen Paper Co. v. Biggins, 113 S. Ct. at

1707. To prove that the IRS relied on these criteria to

accomplish age discrimination, Sack had to show that the IRS

and/or its employees designed the SAQS to reward recent legal

education or experience because it was assumed that this

would eliminate older applicants. But there was no evidence

which even suggested that the SAQS were enacted with such a

discriminatory motive. Rather, the record indicates that the

SAQS provided that additional base points could be added to

the scores of recent law school graduates to enable them to

compete with the scores of practicing attorneys who would be

eligible for additional base points due to their experience,

points for which Sack was ineligible because he had not

practiced law in several years. Thus, rather than giving

recent law school graduates an unfair edge, the SAQS appear

to be designed to level the playing field. In any event,

neither recent law school graduation nor recent years of

experience are so correlated with age as to suggest that the

IRS had the discriminatory motive critical to Sack's

disparate treatment claim.

To be sure, it may be more likely that most of the

applicants eligible for additional base points because they

recently completed law school will be under forty. But

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"decisions based on criteria which merely tend to affect

workers over the age of forty more adversely than workers

under forty are not [necessarily] prohibited." E.E.O.C. v.

Francis W. Parker School, 41 F.3d at 1077. The fact that

additional base points may be awarded for recent legal

education does not indicate that the SAQS are a pretext for

age discrimination, for the SAQS also allow additional base

points for recent legal experience and admission to a bar.

These criteria apply to individuals who cannot be said to be

more likely to be under forty. The fact that two of the

applicants who were hired were older than Sack further

undermines Sack's contention that his rejection resulted from

age discrimination.17 Thus, the totality of the

circumstances compels us to reject Sack's contention that the

SAQS use recent legal education or experience as a proxy for

age. Compare Massarsky v. General Motors Corp., 706 F.2d

111, 119 (3rd Cir.), cert. denied, 464 U.S. 937

(1983)(similar). Accordingly, we conclude that Sack has

17. While we do not require plaintiffs to prove that only
persons outside the protected age group were hired to make
out a prima facie case, we have observed that, "as a

practical matter, it may be unlikely that a plaintiff who was
not supplanted by a younger individual will succeed in an
ADEA suit...." Freeman v. Package Machinery Corp., 865 F.2d

1331, 1335 n.2 (1st Cir. 1988). The evidence here strongly
militates against Sack.

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failed to make establish a case of age discrimination through

disparate treatment.18

We also agree with the district court's conclusion that

Sack was not entitled to relief under the Veterans'

Preference Act. Nothing in any of the statutes Sack has

cited gives him a federal cause of action, and we decline to

imply one where the record discloses that Sack received the

preference he was entitled to when the IRS added five points

to his score under 5 U.S.C. 3309. The Veterans' Preference

Act does not "cloak veterans with any 'penumbral rights;' its

provisions are necessarily specific, and for plaintiffs to

benefit therefrom they must show themselves to be clearly

within the intended ambit of... [its] provisions." Crowley v.

United States, 527 F.2d 1176, 1182-83 (Ct. Claims

1975)(citation omitted). Sack has failed to show that 5

U.S.C. 3309, 3311, or 3313 required the IRS to award him

fifteen additional points. Accordingly, the judgment of the

district court is affirmed.

18. As Sack has expressly disclaimed reliance on the
disparate impact theory, we confine our analysis to the
disparate treatment test. However, we note that the DOT's
conclusion that Sack also failed to prove disparate impact is
supported by the record.

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