Petition for Writ of Certiorari — Cozad v. Rubin

NO. + GEEICE OF tHe romp, :

IN THE SUPREME COURT OF THE :

UNITED STATES

October Term, 1995

JIMMY M. COZAD, Pro se,

Petitioner

Vv.

ROBERT E. RUBIN, Secretary,

Department of the Treasury,

United States of AMOTs C8 wondent

PETITION FOR CERTIORARI TO THE UNITED

STATES SUPREME COURT FROM THE

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Jimmy M. Cozad

Pro se

Rural Route # 4

Independence, Ks. 67301

316-331-4287

+ Seder ininios,

%

——

QUESTIONS PRESENTED

1. Whether for Equal Protection analysis

as contained in Section 1. of the XIV.

amendment to the Constitution of the

United States a Motion for Summary

Judgment requiring proof of intent in

addition to that of prima facie evidence

without the ability to cross-examine and

without benefit of counsel or full access

to the personnel records of Respondent

violates that section to the amendment.

2. Whether for Equal Protection analysis

as contained in Section 1. of the XIV.

amendment to the Constitution of the

United States the Court of Appeals and

Lower Court errored in viewing the

evidence presented by the Defendant while

con-currently excluding circumstantial

evidence submitted by the Plaintiff, thus

denying his equal protection rights.

3. Whether one who is not an employee of

the Federal Government can be denied the

right of a jury trial when filing for

value in a cause of value as well as a

cause for rights denied under the U.S.

Statutes in an action against the Federal

Government, as given by the VII amendment

to the Constitution.

4. Whether the Petitioner has been

denied those privileges and immunities

afforded to those in the several states,

in violation of Article IV, Section 2, of

the United States Constitution.

LIST OF PARTIES

The petitioner is Jimmy M. Cozad

The respondent is ROBERT E. RUBIN,

Secretary of the United States Department

of the Treasury.

TABLE OF CONTENTS

PAGE(S)

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Se ee SEs «5.6. w 0 O69 edn tbo sing eaess ii

SA SE Es 0. 0 9:0 0 ce cceccenshen’ iii

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Se EE ee ee a 1

STATEMENT OF JURISDICITON.............. 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................... 3

GrAneeween OF Thm CASE... wc. ccc ccc cc ccce 4

REASONS FOR GRANTING THE WRIT.......... 6

ee Oe SPE Pr Te ee CORT ETE ae 10

FS OE ee eee eS eee ee ek A-C

iii

TABLE OF AUTHORITIES

CASES PAGE(S)

Braswell vy Kobelinski (1976, DC 6

Dist Col) 428 F Supp 324, 25 BNA

FEP cas 387.

Nabors v United States (1978, CA9 7

Cal) 568 F2nd 657, 16 BNA FEP Cas

948, 16 CCH EPD para. 8106.

Lindahl] _v Air France (1991, CA9 Cal) 8

930 F2nd 1434, 91 CDOS 2821, 91 Daily

Journal DAR 4545, 55 BNA FEP Cas 1033,

56 CCH EPD para. 40712.

Haglof v Northwest Rehabilitation, 9g

Incy, (1990, CA8 Minn) 910 F2nd 492,

54 BNA FEP Cas 1211, 54 CCH EPD para.

40123.

CONSTITUTIONAL PROVISIONS

Seventh Amendment, U.S.

Constitution

Fourteenth Amendment, U.S.

Constitution, Section 1.

Article IV., Section 2., U.S.

Constitution

iv

OPINIONS BELOW

The United States Court of Appeals,

Tenth Circuit Order entered April 3,

1995, request for rehearing in banc

denied, is reprinted in Appendix A.

The United States Court of Appeals,

Tenth Circuit filed its unpublished Order

and Judgment - on February 28, 1995, is

reprinted in Appendix B.

The United States District Court for

the District of Kansas entered July 28,

1994, Memorandum and Order, is reprinted

in Appendix C.

The United States District Court for

the District of Kansas entered June 29,

1993, Recommendation and Report, by

United States Magistrate Judge, is

reprinted in Appendix D.

STATEMENT OF JURISDICTION

The issue of an Order and Judgment

affirming the lower court’s Order of

Summary Judgment by the 10th Circuit

Court of Appeals on February 28, 1995 and

the subsequent denial of a rehearing in

banc was issued April 3,1995. This

petition is being filed within 90 days

threafter. The Court has jurisdiction

pursuant to 28 USCS para. 1257 F. and I.

and 28 USCS para. 1291, N53.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fourteenth Admendment’s Clause

provides that: ". . . nor shall any

State deprive any person of life,

liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the

laws." U.S. Const., Amend. XIV, sec. l.

2. Article IV., Section 2. of the United

States Constitution states " The Citizens

of each State shall be entitled to all

Privileges and Immunities of Citizens in

the several States.”

3. The VII AMENDMENT to the Constitution

of the United States states that "In

Suits at common law, where the value in

controversy shall exceed twenty dollars,

the right of trial by jury shall be

preserved, and no fact tried by jury,

shall be otherwise re-examined in any

Court of the United States, than

according to the rules of common law.”

STATEMENT OF THE CASE

On the 8th day of December, 1992

Petitioner filed his Complaint alleging

age discrimination. In conjunction with

Plaintiff°s Complaint and the allegations

contained therein, Petitioner requested

that the Court appoint counsel to

represent him in this matter based upon

his failure to obtain counsel and the

good of the general public interest in

assuring the Petitioner representation.

That request for counsel was denied by

the District Court. On the 18th of

February, 1993 Respondent filed a Motion

to Dismiss Petitioner’s Complaint. On

the 29th day of June, 1993, Respondents

Motion to Dismiss was denied by the

District Magistrate Judge. On the 15th

day of November, 1993 the Court issued

it’s scheduling Order. On the 14th day

of February, 1994 the Respondent filed a

Motion for Protective Order which was

withdrawn on the Z2lst day of March, 1994.

On the 16th day of May, 1994, a Pre-trial

Conference was held and at that time the

Respondent filed their Motion for Summary

Judgment. Thereafter, on 28th day of

June, 1994, the Respondent filed their

second request for an extension within

which to file documents relating to the

Petitioner’s claim of nepotism.

Respondent’s Motion for Summary Judgment

was granted on the 28th day of July,

1994. Notice of Appeal was filed and

docketed by the Court of Appeals on the

Srd and 19th of August, respectively.

Thereafter on February 28th, 1995 the

United States Court of Appeals for the

Tenth Circuit issued a Order and Judgment

upholding the Lower Court’s granting of

the Motion for Summary Judgment.

4

The unconstitutional violation of

the equal protection clause and fairness

clause has been raised by the granting of

this motion as well as the violation of

Petitioner’s constitutional right to

challenge under cross examination by

trial process those statements made by

the Respondent through the administrative

hearing process and accepted by both the

District Court. and Court of Appeals as

fact.

Also, the Lower Court’s disregard of

Petitioner’s position as a Pro se

litigant and it’s inconsistent rulings

with regard to the fairness clause is

also challenged.

The freedom displayed by the Lower

Court’s to use the Summary Judgment

Motion to deny access to the trial

process by so narrowly defining the

parameters by which a Plaintiff can

access that process has a chilling effect

on those who would assert their right

afforded them by statute and

constitutional privilege.

REASONS FOR GRANTING THE WRIT

The central issues in this case

concern the rights of the individual to

receive a fair and equal treatment when

litigating against an agency of the

United States as a Pro se litigant, and

the Court”’s use of a Motion for Summary

Judgment as the ultimate weapon given

those agencies to avoid cross

examination, thereby denying the

Petitioners right of access to the trial

process.

Petitioner established a case of

prima facie evidence under the ADEA

statute 29 USCS sec. 633a and Respondent

failed in its attempt to present any

sustainable evidence which would allow

the case to be dismissed. As found in

Braswell _v Kobelinski (1976, DC Dist Col)

428 F Supp 324, 25 BNA FEP Cas 387.

“plaintiff must make prima facie showing

of age discrimination; burden then shifts

to employer to show that age was not

factor or that, even if age was factor,

employee or applicant would not have

gotten position for legitimate

nondiscriminatory reason; employer must

prove itscase by clear and convincing

evidence; employee then has burden of

showing that employer’s legitimate

nondiscriminatory reasons are but

pretext.”

Petitioner would state that the only

evidence submitted to the Court were

those statements taken from its employees

in defense of their case given during the

administrative hearing process.

Petitioner would contend that as such no

evidence in fact exists beyond those

statements. No depositions or evidence

6

has been submitted beyond the statements

of Respondents which could establish

clear and convincing evidence, and both

the District Court and Court of Appeals

have elevated those statements to a

position of evidence without basis in

fact, thus denying Petitioner’s right to

a fair and equal hearing. Petitioner

would refer to

(1978, CAS Cal) 568 F2nd 657, 16 BNA FEP

Cas 948, 16 CCH EPD para. 8106. “Federal

employee who filed complaint under ADEA

(29 USCS paras. 621 et seq.) against Air

Force was entitled to trial de novo, and

accordingly it was improper for district

court to review disposition of case by

Civil Service Commission soley on basis

of administrative record."

Petitioner would refer to the

Memorandum and Order issued by the

District Court and contanined in Appendix

Cc. Review of this order Petitioner

believes will show that the court

abandoned its position of a trier of fact

to that of an advocate of the Defense.

This order was issued without giving

the Petitioner a hearing while the

Petitioner was awaiting production of in

camera evidence from the court. The

court accepts and uses the statements

contained in an administrative process

and not those established at a hearing

and accepts every statement made in that

process as fact.

Statements contained in this order

attributed to the Petitioner were not

even taken verbatum from the record, but

were changed and expanded upon and malign

the character and credability of the

Petitioner without proof in fact. The

Petitioner would be willing to refute

statements contained in this order as

fact under oath in a court of law, and

7

believes the court to be grossly unfair

and violates his rights of fairness under

the Constitution.

Petitioner would submit to the Court

that both the Court of Appeals and the

Lower Court have been inconsistent in

dealing with the evidence submitted by

the Petitioner. The District Court ina

Pre-Trial conference led Petitioner to

believe that the violation of an agency’s

own rule and regulations could be

submitted as circumstantial evidence that

intent to discriminate did exist.

Petitioner has submitted to the court

evidence that the Respondent did in fact

violate its own rules and regulations and

those of the Merit System and Veterans

Preference Statutes, thus showing a

propensity to disregard the law governing

personnel management including the Age

Discrimination Statutes.

The Court of Appeals has

misinterpreted the evidence of wrong

doing by claiming that Petitioner

subsituted that evidence as direct

evidence. Additionally, Petitioner

presented evidence in his support that

the employment register of the Respondent

was manipulated to allow for younger

applicants to be hired.

Even the most restrictive case in

favor of a Motion for Summary Judgment

states ", but plaintiff need produce very

little evidence of discriminatory motive

to raise genuine issue of fact for

summary judgment purposes.” Lindahl v

Air France (1991, CA9 Cal) 930 F2d 1434,

91 CDOS 2821, 91 Daily Journal DAR 4545,

55 BNA FEP Cas 1033, 56 CCH EPD para.

40712.

In the case of Haglof v

.. (1990, CA8 Minn) 910

F2d 492, 54 BNA FEP Cas 1211, 54 CCH EPD

par. 40123., in a ADEA case "it is not

necessary to produce direct evidence of

discriminatory intent or additional

evidence beyond that presented in prima

facie case;" The inconsistency by which

the courts have required different

degrees and types of evidence beyond

prima facie evidence in order to receive

the right to a trial is in conflict with

Article IV, Section 2 requiring

consistent treatment of the law between

states and also violates the due process

and equal protection provisions of

Section I of the Fourteenth Amendment to

the Constitution.

Further the Court of Appeals unfairly

compares Petitioner’s case involving a

Federal Agency which is required by law

to follow statutory and mandated

personnel practices designed to preclude

age discrimination as well as other forms

of discrimination, with cases in its own

circuit involving private companies who

apparently have no such rules or

regulations. By doing so the court of

review has excluded unfairly Petitioner’s

only method by which a litigant could

hope to prove intent, short of cross

examination. A non-employee applicant

for a Federal position does not have

access to information which would

normally be available to an employee and

Federal Agencies have powers to

effectively exclude information outside

of the trial process.

Finally, although the Petitioner has

been given the same rights in pursuing

9

his claim as that of a Federal Employee,

Petitioner is not a Federal Employee and

as such should be given that right

afforded him under the Seventh Amendment

to the Constitution. Petitioner has a

claim in value in excess of twenty

dollars as required by that amendment and

therefore should be given the right of

trial by jury.

CONCLUSION

Petitioner has presented a prima

facie case to the Court. Thus requiring

Respondent to prove it's case by clear and

convincing evidence. The only defense

presented were statements made during the

administrative process. No testimony was

presented other than those statements

given in the administrative process. No

testimony by unbiased or expert opinion,

no testimony from outside references or

witnesses. Therefore Petitioner would

conclude no clear and convincing evidence

existed. Even if the buraen had been

shifted to the Petitioner, Petitioner has

presented depositions taken outside the

administrative process in addition to

that of an outside audit by Office of

Personnel Management as evidence of

intent to discriminate based upon age.

Petitioner believes Respondent has

relied upon the ultimate weapon of the

Motion for Summary Judgment and that

Petitioner’s odds of ever being heard by

the Supreme Court, to unfairly deny

Petitioner his day in court.

10

Respectively submitted.

Jimmy M. Cozad

Pro se Petitioner

Route # 4

Independence, Ks. 67301

Phone: daytime

316-331-1040

evenings

316-331-4287

11

APPENDIX

United States Court of Appeals

For The Tenth Circuit - Order

- Entered April 3, 1995. .

United States Court of Appeals

For the Tenth Circuit - Order

and Judgment - Entered Feb.28,

1995. ee ee ee ee

In The United States District

Court For The District of

Kansas - Memorandum and Order

- Entered July, 28, 1994.

In The United States District

Court For The District of

Kansas - Recomenmendation and

Report - Entered Jun 29, 1993

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JIMMY M. COZAD,

Plaintiff - Appellant,

)

)

)

)

)

)

LLOYD BENTSEN, Secretary of the United)

States Department of Treasure, )

Defendant - Appellee. )

No. 94-3271

ORDER

Entered April 3, 1995

Before SEYMOUR, Chief Judge, and McKay

and HENRY, Circuit Judges.

This matter comes on for

consideration of appellant’s petition for

rehearing and suggestion for rehearing in

banc.

Upon consideration wherof, the

petition for rehearing is denied by the

panel that rendered the decision.

In accordance with Rule 35(b),

Federal Rules of Appellate Procedure, the

suggestion fro rehearing in banc was

transmitted to all of the judges of the

court who are in regular active service.

No member of the panel and no judge in

regular active service on the court

having requested that the court be polled

on rehearing in banc, Rule 35, Fedral

Rules of Appellate Procedure, the

suggestion for rehearing in banc was

transmitted to all of the judges of the

court who are in regular active service.

No member of the panel and no judge in

regular active service on the court

having requested that the court be polled

on rehearing in banc, Rule 35, Federal

Rules of Appellate Procedure, the

suggestion for rehearing in banc is

denied.

Entered for the Court

PATRICK FISHER, Clerk

s/f L. Balzano(sp?)

by

Deputy Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY M. COZAD

Plaintiff-Appellant,

)

)

) No. 94-

) 3271

) (D.C.

LLOYD BENTSEN, Secretary of the) 92-1600-

United States Department of ) MLB) (D.

Treasury, ) Kansas

)

Defendant-Appelle

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, MCKAY, and

HENRY, Circuit Judges.

After examining the brief and

appellate record, this panel has

determined unanimously that oral argument

would not materially assist the

determination of this appeal. See Fed.

R. App. #2. e6(a); 10th. Cir. R. 34.1.9.

The cause is therefore ordered submitted

without oral argument.

Jimmy Cozad brought this action pro

se under the Age Discrimination

Employment Act (ADEA), 29 U.S.C. sections

621 et seg., alleging that he was denied

employment as an Internal Revenue

*This order and judgment is not binding

precedent, except under the doctrines of

law of the case, res judicata, and

collateral estoppel. The court generally

disfavors the citation of orders and

judgments; nevertheless, an order and

judgment may be cited under the terms and

conditions of the court’s General Order

filed November 29, 1993. 151 F.R.D. 470

Agent because of his age. The district

court granted summary judgment for

defendants. On appeal, Mr. Cozad argues

that summary judgment was improper

because he presented sufficient evidence

to raise a fact issue on whether the

reasons proffered by defendants for

refusing to hire him were pretextual.

We have carefully reviewed the

record and the analysis and authorities

relied on by the district court, and we

affirm the grant of summary judgment

substantially for the reasons set out in

the lower court order. Summary judgment

for a defendant is proper in a ADEA

action when, as here, there is nothing in

the record to indicate that the

legitimate reasons offered by the

defendant to support an adverse

employment decision are a pretext for

illegal discrimination.

See Palochko vy.

Manville Corp,, 21 F.3d 981, 982-83 (10th

Cir. 1994).

Mr. Cozad bases his claim of pretext

upon asertions that defendants failed to

follow their own procedures with respect

to other job applicants, passed him over

when he was entitled to a veteran’s

preference, and hired other instead of

him due to nepotism. None of those

allegations, taken as true, constitue

evidence that defendant’s reasons for

failing to hire Mr. Cozad were a pretext

for illegal age discrimination. The fact

that a defendant’s reasons may have been

irrational, or not attributable to

legitimate business considerations, or

even a pretext for nepotism does not

create a jury question on discriminatory

pretext absent some evidence that the

reasons were motivated by a

discriminatory animus. See EEOC vy.

Flasher Co,, 986 F.2d 1312, 1319-21 (10th

Cir. 1992). “(T)he plaintiff must show

not merely that the proffered reasons are

pretextual, but that they are “a pretext

for discrimination.~" Id. at 1321

(quoting Texas Dep*t of Community Affairs

v. Burdine, 450 U.S. 248, 253 (1981), and

adding emphasis). Mr. Cozad has offered

no evidence that the actions of

defendants were motivated by his age.

Summary judgment was therefore proper.

The judgment of the district court

is AFFIRMED. The mandate shall issue

forthwith.

Entered for the Court

Stephanie K. Seymour

Chief Judge

FILED

United States Court of Appeals

Tenth Circuit

FEB 28, 1995

PATRICK FISHER

Clerk

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

FILED

JIMMY M. COZAD, )JUL 28 1994

Plaintiff, )RALPH L.

)DeLOACH, CLERK

) By Deputy

Vv. ) CIVIL ACTION

)No.92-1600-MLB

LLOYD BENTSEN, SECRETARY, )

DEPARTMENT OF TREASURY, )

Defendant. )ENTERED ON THE

) DOCKET

DATE: 7-28-94

MEMORANDUM AND ORDER

This case comes before the court on

the defendant’s motion for summary

judgment, pursuant to Fed. R. Civ. - 2. 86.

(Doc. 33)

Jimmy Cozad applied for a job as a

Internal Revenue Agent (IRA) in respose

to a vacancy announcement posted on or

about November 7, 1990. Cozad was 51

years old at the time of his application.

Based on his prior work emperience,

education, and military service, Cozad’s

application was rated and scored a 97.

This was the highest score among the

applicants. He also qualified a

“tentative preference candidate" based on

his military service.

Cozad, along with 21 other external

candidates and 16 internal candidates,

was interviewed for a position on January

4, 1991. One of the purposes of the

interview was to determine if the

applicant possessed effective “meet and

deal" skills required of an IRA. Cozad’s

interview was conducted by Carol Ebel and

Daniel Wiseman. Ebel is a group manager

with ten years experience of supervising

IRAs and had participated in numerous

prior interview panels.

-j-

Wiseman is also a group manager with

eight and a half years experience as an

IRA. He had not previously participated

in an interview panel. Standard

interview questions were asked of each

applicant. The applicant’s passage or

failure of the interview is based soley

upon the interview team’s assessment of

his or her “meet and deal” skills.

Following Cozad’s interview, Ebel and

Wiseman discussed the interview and

concluded that Cozad did not possess the

necessary communication skills to become

an IRA. Ebel and Wiseman took notes of

the interview and prepared a ranking

panel form. From that information, an

Agency Request to Pass Over a Preference

was prepared and submitted to the

Regional Exam Unit (REU) in Dallas. The

REU sustained the request to pass over

Cozad.

Cozad thereafter commenced this

lawsuit, alleging the IRS had

discriminated against him based on his

age when he was not selected to be an :

IRA. i

AR ROTA cohen id) MDE

FO aes i uteR Re

Standards for Summary Judgment

Rule 56(c) of the Federal Rules of

Civil Procedure directs the entry of

summary judgment in favor of the party

who “show[{s] that there is no genuine

issue as to any material fact and that

the moving party is entitled to a

judgment as a matter of law." A

principal purpose “of the summary

judgment rule is to isolate and dispose

NEY SAE 2

of factually unsupported claims or

defenses . . Celotex Corp, v.

Catrett, 477 U. S. 317, 323-24 (1986).

The court’s inquiry is to determine

“whether there is the need for a

trial--whether, in other words, there are

any genuine factual issues that

viltine

properly can be resolved only by a finder

of fact because they may reasonably be

resolved in favor of either party.”

Anderson v. Liberty Lobby. Inc,, 477 U.S.

242, 250 (1986). Entry of summary

judgment is mandated, after an adequate

time for discovery and upon motion,

against a party who fails to make a

showing to establish the existence of an

element essential to that party’s case,

and on which that party bears the burden

of proof at trial. Meredith v. Beech

Aircraft Coarp., 18 F.3d 890, 893 (10th

Cir. 1994).

The moving party bears the initial

burden of demonstrating the absence of a

genuine issue of material fact by

informing the court of the basis for its

motion. Martin v. Nannie and the.

Newborns, Inc., 3R.3d 1410, 1414 (10th

Cir. 1993). Once the moving party

properly supports its motion, the

nonmoving party “may not rest upon mere

allegation or denials of his pleading,

but must set forth specific facts showing

that there is a genuine issue for trial.”

Lee v. ABF Freight System, Inc., 22 F.3d

1019, 1021 (10th Cir. 1994). The court

reviews the evidence in a light most

favorable to the non-moving party, e.g...

Thrasher v. B & B Chemical Co., Inc., 2

F3d 995, 996 (10th Cir. 1993), under the

substantive law and the evidentiary

burden applicable to the particular

claim. Anderson, 477 U.S. at 255.*(1)

*(1) The court is cognizant that Cozad

appeared pro se in this case.

Accordingly, the court has liberally

construed his response to the

government’s motion. See Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991).

The court held a status conference on

May 16, 1994, and advised Cozad of the

form his response was to take.

Notwithstanding this direction, Cozad

failed to respond to the government’s

satement of uncontrovierted facts, as

required to D. Kan. Rule 206(c).

= Sx

Discussion

The ADEA forbids an employer to

“discharge any individual or otherwise

discriminate against any individual with

respect to his compensation, terms,

condiditons, or privileges of employment,

because of such individual’s age." 29

U.S.c. para. 623(a) (1). To establish

age discrimination, Cozad must prove that

age was a determining factor in

defendant’s failure to hire him. Perrel]

v. FinanceAmerica Corp., 726 F.2d 654,

656 (10th Cir. 1984). Cozad need not

prove that age was the sole reason for

the defendant’s acts, but he must prove

that age was a determinative factor in

the defendant’s decision. Cooper v,

Asplundh Tree Expert Co,, 836 F.2nd 1544,

1547 (10th Cir. 1988.).

Cozad°s claim must be analyzed under

the burden-shifting framework set forth

n McDonnell Douglas Corp, v. Green, 411

U.S. 792 (1973). Under this framework,

Cozad has the burden of establishing a

prima facie case of discrimination. If

Cozad establishes a prima facie case, the

burden shifts to the defendent to produce

evidence of a nondisriminatory reason for

its actions. Id. at 802. Once the

defendant has set forth a facially

nondiscriminatory reason for its

decision, Cozad assumes the burden to

prove the the employment decision was the

result of intentional discriminatin based

on age.

v. Burdine, 450 U.S. 248, 256 (1981).

To establish a prima facie case,

Cozad must show that: (1) he was within

the protected class; (2) he was qualified

for the position; (3) he was rejected;

(4) the position was filed by someone who

was not a member of the protected class.

See Kenworthy v. Conoco, Inc., 979 F.2d

1462, 1469 (10th Cir. 1992).

Defendant argues that Cozad failed

to establish a prima facie case of age

discrimination because he failed to prove

that he was rejected for the position of

IRA under circumstances that give rise to

Discrimination. In support of this

argument, the defendant delineates the

circumstances surrounding Cozad’s

rejection, particularly Ebel’s and

Wiseman’s conclusion that Cozad lacked

the communication skills required of an

IRA.

In the court’s view, the defendant’s

argument is premature. In MacDonald v.

» 941

F.2nd 1115 (10th Cir. 1991), the Tenth

Circuit stated that district courts

should not consider a defendant’s

proffered reasons for rejection in

assessing the plaintiff’s prima facie

case. Id. at 1119-1121. For purposes of

evaluating whether Cozad was rejected

pursuant to discriminatory motives at

this stage, the court considers only the

evidence offered by Cozad. He was 5l

years old at the time of his rejection

and possessed the requisite

qualifications by virtue of his score on

the application. It is uncontroverted

that several of the applicants who were

ultimately selected as IRAs were outside

the protected class. Based on this

evidence, the court finds Cozad has

established a prima facie case.

The burden of production now shifts

to the defendant to come forward with

legitimate, nondiscriminatory reasons for

Cozad’s rejection. Defendant conducted

interviews with the 22 external and 16

internal candidates for IRA positions.

Each candidate was interviewed by two IRS

employees and asked the same questions.

One of the purposes of the interview was

to ascertain whether the candidate

possessed effective “meet and deal”

skills. Defendant argues Cozad failed to

demonstrate effective ‘meet and deal"

skills required to be an effective IRA.

Cozad was interviewed by Ebel and

Wiseman, two experienced IRAs. Both took

notes of Cozad’s interview. They noted

that Cozad’s responses were rambling and

unresponsive to the questions. They

provided specific examples of Cozad’s

responses. For instance, when asked to

describe his background, Cozad explained

that he worked for Superior School

Supplies, Inc., the commitment the

company made to him, the different

changes he made, the products it made,

why his job was terminated, and related

an incident involving an argument the

owner’s wife had with a nun about whether

to move the business. The agents were

forced to remind Cozad that they wanted a

brief discussion of his experience.

Ebel and Wiseman also noted that

Cozad made insensitive and unprofessional

remarks during the interview. When asked

to describe his weakest point, he replied

SALEEM AME NIG EIT TC

it was organizaton. When pressed to

€ aborate, he stated that his

organizational skills threatened his

co-workers and was therefore a weakness.

Ebel and Wiseman asked the question

again, and Cozad answered by describing

an error made by a revenue agent during

an audit. In another example, Cozad

responded to a problem solving question

an a grocery store by stating that he

would use an indirect methos and had seen

revenue agensts do likewise. Cozad went

on to say that whenever he had a client

in the past taht had a double entry set

of books, he informed the client not to

worry because revenue agents would not be

able to find anything. Cozad stated

revenue agents were not trained to know

how to handle such complex situations.

In summary, Ebel and Wiseman were of

the opinion that did not demonstrate

diplomacy, flexibity, or good listining

skills. They found Cozad did not

directly answer their questions, and

disregarged the opinions of others ina

manner that impeded interactive

communication.

Cozad does not challenge the

accuracy of the comments attributed to

him during the interview about his

employment with Superior School Supplies

and that co-workers viewed his desire for

well-organized office environment

negatively at first. He does not recall

if he made a comment that an agent had

missed that a taxpaper had increased his

beginning inventory figure, or that he

usually reorganizes the filing and

paperwork in a new company when he first

goes to work for them. He does recall

restating that an IRS office worker, not

an agent, failed to catch a double-entry

bookkeeping system and detect errors.

Four other applicants besides Cozad

failed to pass the interview. The ages

of these four applicants was 40, 38, 34,

and 27, respecively. Those that passed

the interview did not automatically

become IRAs. The selections decisions

were made by Richard Lee, Chief of the

Examination Division. He selected six

external candidates as IRAs, whose ages

were 37, 28, 24, 23, 23, and 22, and five

internal candidates, whose ages were 50,

49, 48,

oF

32, and 32, respectively. Ebel and

Wiseman interviewed and passed three of

the external candidates, whowe ages were

37, 23, and 22, and two of the internal

candidates, whose ages were 50 and 32,

respectively.

The burden now shifts to Cozad to

show that the defendant’s reasons are a

pretest for age discrimination. To avoid

summary judgment, Cozad must produce

“specific facts showing that there

remains a genuine issue for trial” and

evidence “significantly probative” as to

any [material] fact claimed to be

disputed.‘ Palochko v. Manville Corp.,

F3d 981, 982 (10th Cir. 1994) (quoting

Branson v. Price River Coal Co., 853

F.2nd 768, 771-72 (10th Cir. 1988) ).

Mere conjecture that the defendant’s

explanation is a pretext for age

discrimination is an insufficient basis

for denial of summary judgment. Id,

Cozad offers a number of exhibits

that he contends show the defendant acted

with discriminatory motive. Cozad points

to a letter from the Office of Personnel

Management (OPM) stating that a certain

appointment in July, 1989, was illegal.

The letter reflects that a*temporary

employee was given a career conditional

appointment in violation of government

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regulations. Cozad argues this letter

tends to show that defendant was not

properly following OPM guidelines during

the period of his interview.

The court rejects the expansive

interpretation of the letter urged upon

it by Cozad. It does not follow that

since the defendant illegally hired a

person within the year prior to Cozad"s

application, the defendant’s employment

decision regarding Cozad

-8-

carries the taint of age discrimination.

See Johnson v. Lehman, 679 F.2d 918, 922

(D.C. Cir. 1982). The letter makes no

reference to any facts that could raise

the specter of age discrimination.

Cozad argues the desposition of

Ronda Grimes shows that defendant’s

actions were likely taken to cover the

existence of a discriminatory motive to

hire a younger population of applicants

for employment. The court disagrees.

There are not facts in the deposition to

support an inference of age

discrimination. When asked whether she

knew the ages of the applicants selected

over Cozad for the IRA position, Grimes

replied that she did not.

Cozad contends the defendant failed

to take special care to recognize his

veterans’ preference.*(2) In support of

this contention, he attaches his

application for federal employment

(SF-171) and a cover page attached to the

passover approval form explaining the

reasons for passover. The application

form is irrelevant to the issue of

whether the defendant practiced age

discrimination. The cover page is a

summary of Ebel and Wiseman’s conclusions

about Cozad’s interview. Nothing on the

page can even remotely be construed as

mean Cozad was rejected due to his age.

The cover letter must also be read in

conjunction with the Request to Pass, in

which Ebel and Wiseman described in

considerable detail their decision to

fail Cozad.

Cozad introduces a letter he wrote

to Senator Nancy Kassebaum

*(2) This court has previously dismissed

any claim for relief based on the

Veterans" Preference statutes. (Doc.

13-14)

~

detailing the defendant’s alleged

noncompliance with the law. The letter

recounts Cozad’s efforts to obtain the

IRA position and complains at the delay

and inattentiveness to his requests.

Cozad offers his personal opinion that

the IRS obstructed his applicantion and

gave unauthorized treatment to another

applicant. Cozad also sets forth

portions of an afficavit given by Ebel

explaining what she had done in response

to Cozad’s inquires.

Conspicuously absent from these

exhibits is any evidence that tends to

indicate Cozad’s age was a factor in his

rejection. Cozad may feel he has been

shabbily treated by government officials,

but his generalized grievances do not

give rise to an inference of age

discrimination.

Cozad points to the disposition of

Bruce Thomas, the District Director of

the Wichita IRS office, who stated that

he advised that Cozad had filed an EEO

complaint. Thomas testified he had been

advised by Merle Simpson, Chief of the

Personnel Management Section of Wichita

IRS office, “why you werent selected and

EE a a

so forth and that it would go forward and

that it would be one of several.” Cozad

interprets this last phrase to inticate

possible wide spread abuse of the hiring

process.

By no stretch of the imagination can

this remark be construed as evidence of

age discrimination. Thomas was simply

relating what he heard from Simpson about

Cozad*s situation. The mere fact that

several other persons filed complaints

with the EEO does not tend

=i.

to show that Cozad was rejected because

of his age.*(3)

Cozad complains about certain

unspecified commments made by Merle

Simpson in his deposition that he

contends reflect a lack of proper

training and knowledge of OPM

requirements. Additionally, he alleges

neither Ebel and Wiseman nor management

possessed the proper skills necessary to

make an unbiased assessment of his

qualifications. Cozad offers no suport

for these bald accusations, and they are

contradicted by the evidence in the

record. First, with respect to Ebel’s

and Wiseman’s qualificatons, Ebel had ten

years of supervising IRSs at the time of

Cozad°s interview. She had participated

in numerous interview panels and was the

lead instructor for na interviewing

course given to group managers. Wiseman

was also a group manager and had eight

and and half years experience as an IRA.

Both wer more than qualified to evaluate

Cozad°s qualifications to be an IRA.

Second, Simpson’s depositon offers

nothing to substantiate a charge of age

discrimination. Simpson did not know

whether his agency might be top heavy

with older agents and had never seen any

statistics on age in the

organizations. *(4)

Cozad points to a statement

supporting the passover of another

condidate and contends the reasons

contained thereiun are opposite to that

given for passing over him and also show

pretext. The

*(3) Cozad makes no effort of identify

who these persons were or what the

substance of their EEO Compaints were.

*(4) Such evidence is irrelevant in

any event because Cozad makes a disparate

treatment claim, not a disparate impact

claim. See Hazen Paper Co. v. Biggins,

_U.S.__, 123 L. Ed.2nd 338, 246 (1993)

(Citation omitted).

=I ie

statement reflects that the interview

panel concluded the applicant lacked the

self-confidence, assertiveness, and

problem solving skills to become a

satisfactory IRA. The statement quite

plainly does not support an inference of

age discrimination in Cozad’s case.

Nowhere in the statement is ther any

reference to the applicant’s age, any

remarks suggesting an animus towards

persons over 40, or any identification of

the interview panel. Cf..

Toledo Hosp,, 964 F.2d 577 (6th Cir.

1992) (to make a comparison of

discrimination between plaintiff's

treatment to that of other applicants,

the plaintiff must show that the

“comparables” are similarly-situatied in

all respects). to the extent Cozad

believes age was a factor in the

rejection of applicant, his belief is

purely speculative.

Finally, Cozad puts forward evidence

purporting to show that the defendant;s

actions were a pretext to hire an

unqualified applicant who had a relative

working in the Wichita office. The

exhibit is portion of an application

submitted by the candidate. Cozad notes

the candidate applied for the position

prior to her graduation and was not hired

for the position she applied for.

Cozad’s charge of nepotism is false.

The applicant did not have any relative

working for the United States government.

More importantly, Cozad fails to explain

how the defendant’s treatment of that

applicant has any tendency to show that

its rejection of him was motivated by age

discrimination. The court finds no such

connection between the two applicants.

The defendant’s motion (Doc.33) for

summary judgment is

>

hereby granted.

IT IS SO ORDERED.

At Wichita, Kansas, this 28th day of

July, 1994.

Monti L. Belot

United States District Judge

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

JIMMY M. COZAD, ) FILED

) U.S. DISTRICT

Plaintiff,) COURT OF

) KANSAS

vs. )

Jun 29 9 50 AM

)°93

LLOYD BENTSEN, SECRETARY ) RALPH L.

OF THE TREASURY, et al., )DELOACH CLERK

) /s/

Defendants ) BY

)DEPUTY AT

)WICHITA, KS.

)

)CAse No.

)92-1600-MLB

)

)

RECOMENMENDATION AND REPORT

Defendant filed a motion to dismiss

plaintiff°s complaint on February 168,

1993 (Doc. 6). A response was filed on

March 8, 1993 (Doc. 7). A reply was

filed on March 19, 1993 (Doc.8).

Plaintiff filed a further response on

March 26, 1993 (Doc. 9). This matter was

referred by Judge Belot to Judge Reid for

a recommendation on the dispostion of

this motion. The court heard oral

argument from the parties on June 28,

1993.

Plaintiff alleges discrimination

stemming from the failure of the Internal

Revenue Service to hire him on January

10, 1991. Defendant first argues that

only proper party should be the Secretary

of Treasury, and that the case should be

dismissed against other named defendants.

Plaintiff admits that the Secretary of

Treasury is the only proper defendant,

and that the other named defendants

should be dismissed from the case.

Defendant also seeks dismissal of

plaintiff°s alleged claim

1

for relief under 5 U.S.C. paras. 3317 and

3318, the veterans preference statutes.

Plaintiff states that he has not stated a

claim for relief under these statutes.

Therefore, to the extent that plaintiff's

complaint does seek a claim for relief

under the veterans preference statutes,

that claim shall be dismissed.

The final issue before the court is

the defendant’s claim that plaintiff's

age discrimination case must be dismissed

for failing to comply with 29 U.S.C.

para. 633a(b) and (c), and for failing to

comply with 29 U.S.C. para. 633a(d) [Age

Discrimination in Act(ADEA) ]. Under the

former, a claimant involkes the EEOC’s

administrative process, and can then file

a civil action in federal district court

if he or she is not satisfied with his

administrative remedies. Under the

latter, the claiment can present their

claim to a federal court in the first

instance. Stevens v, Department of the

Treasury, 111 S. Ct. 1562, 1566 (1991).

The plaintiff in this case has

invoked the EEOC’s administrative

process. The Defendant contends that the

plaintiff could not initiate a civil

action under 29 U.S.C. para. 633a(b) and

(c) because the plaintiff had not

exhausted his administrative remedies

when the suit was filed. At the time the

motion was filed, a request for

reconsideration was pending before the

EEOC. However, that request was denied

on May 6, 1993, as the parties noted in

oral argument on this motion. The

position of the government is that unless

administrative remedies are exhausted

when the lawsuit is filed, this court

lacks jurisdiction over the case, even if

2

administrative remedies are exhausted

sometime after the lawsuit has been

commenced. See McNeil v. United States,

113 S. Ct. 1980, 1983 (1993) (claim

brought under the Federal Tort Claims

Act).

In the case of Stevens v. Department

ef the Treasury, the Court noted that

there is a split in authority among the

circuits as to whether or not a claimant

must exhaust his administrative remedies

before filing suit unde the ADEA. In

Stevens, the Government had argued below

that a claimant must exhust their

administrative remedies before filing

suit under the ADEA. However, the

Government changed its position when the

case was argued before the Supreme Court.

“According to the Solicitor General, a

federal employee who elects agency review

of an age discrimination claim need not

exhaust his administrative remedies

before bring a civil action." 111 S. Ct.

at 1568.

Now, in this case, the Government

has apparently again changed its

position. The court is quite concerned

with this change of position. If the

Solicitor General has articulated a

position before the Supreme Court, then

Government attorneys throughout the

country should be bound by that position

absent a decision by the Justice

Department to depart from that position.

Absent documentation from the Justice

Department that such a change of position

Ee eae eee eae -

has occurred, this court is not inclined

to accept the position being argued by

the local assistant U.S. attorney as

being the position of the Government.

Neither will this court look favorably on

the Government repeatedly changing their

position in various ADEA cases nationwide

depending on the circumstances of

3

each case.

In her reply brief, the assistant

U.S. Attorney notes the position taken by

the Solicitor General in Stevens, but

argues that the government’s position was

that it was not necessary to exhaust

administrative remedies if the plaintiff

meets the requirements to file suit

directly in federal court (Doc. 8 at 4).

However, such a distinction is nowhere

metioned in Stevens. According to the

Solicitor General in Stevens, a claimant

who elects agency review of age

discrimination claim need not exhaust his

administrative remedies before bringing a

civil action. The opinion does not

indicate that the Solicitor General felt

that administrative remedies would have

to be exhausted if the plaintiff did not

meet requirements to file suit directly

in federal court. Counsel has offered no

convincing rationale for requiring a

claiment to exhaust their administrative

remedies only if they do not meet the

requirements to sue directly in federal

court.

During oral argument, the court

asked counsel for the defedant what was

the basis for her opinion that the

Solicitor General meant to limit his

position-that exhaustion of

administrative remedies is not

required-to those situations where the

claiment meets the requirements to file

suit directly in federal court.

Counsel’s only response was to attempt to

distinguish Stevens, noting that Stevens

was a case involving a government

employee, while this case involved an

applicant for government employment.

However, 29 U.S.C. para. 633a applies

to"{ajJll personnel actions affecting

employees or applicants for

4

employment". Therefore, Stevens cannot

be distinguished on this basis. The

court was also perplexed at the attempt

by the governmant to distinguish Stevens,

since the government has cited that

opinion in its reply brief in support of

its position.

Because the Government changed their

position on this issue in Stevens when it

reached the Supreme Court, the court

decided that the exhaustions issue was

moot. However, Justice Stevens, ina

concurring and dissenting opinion, would

have gone ahead and ruled on the issue.

As he noted, the ADEA, unlike Title VII,

has no express requirement that a

claimant seek administrative relief. In

addition, the EEOC, in interpreting the

ADEA, does not read the statute to

require exhaustion by a claimant. See 29

C.F.R. para. 1613.513 (1992). This

court agrees with Justice Stevens that

under the ADEA, a claiment need not

exhaust his or her administrative

remedies before filing their civil

action.

| The Court further finds that 29

U.S.C. para. 633a(d) has no application

to this case. That statute begins as

follows: "When the individual has not

filed a complaint concerning age

discrimination with the [Equal Employment

Opportunity] Commission, no civil action

may commenced by any individual under

this section until... ." Since the

plaintiff has filed a complaint with the

EEOC, plaintiff need not comply with

subsection (d) before filing his lawsuit.

IT IS THEREFORE RECOMMENDED that

defendant’s motion to dismiss is granted

in part and denied in part. All named

defendants, except that of the Secretary

of the Treasury, are dismissed from

5

this case. In addition, to the extent

that the complaint does seek at claim for

relief under 5 U.S.C. paras. 3317 and

3318, that claim shall be dismissed.

However, the remainder of the motion to

dismiss the complaint in its entirety for

lack of subject matter jurisdiction is

denied.

Copies of this order shall be mailed

to plaintiff and to counsel of record for

the defendent. Pursuant to 28 U.S.C.

para. 636(b)(1), the parties may serve

and file written objections to the

proposed findings and recommendations

within 10 days after being served with a

copy of this recommendation.

Dated at Wichita, Kansas, on June

28, 1993.

{/3/

JOHN THOMAS REID

United States Magistrate

Judge