California court hears appeal in USGS age discrimination case

Scientists say 1995 reduction in force targeted older employees and whistleblowers.

The U.S. Court of Appeals for the Ninth Circuit in San Francisco heard oral arguments last week in an ongoing legal battle between the Interior Department and 14 scientists who claim they were fired based on their age.

The scientists worked in the Geologic Division of the U.S. Geological Survey. They and about 550 other USGS employees were laid off as part of an October 1995 reduction in force that cut nearly 37 percent of the division. The scientists, whose ages ranged from 44 to 67 at the time, claim the downsizing had a disproportionate effect on older employees.

Mary Dryovage, the California-based attorney handling the case for the scientists, said she is optimistic about the chances of winning the appeal. The scientists are looking to recover attorneys' fees and lost wages and retirement benefits.

"We got the government to admit that they made a mistake in not raising reasonable factors other than age," Dryovage said.

When the case was first heard in the District Court for the Northern District of California, the government argued that the firings were a business necessity, because USGS needed to reduce its workforce to free up funds for research.

The judge found in the agency's favor in a June 2004 decision, since the scientists could not prove there was another way for the agency to meet its budget requirements other than a RIF. The Age Discrimination in Employment Act -- the 1967 statute under which almost all federal employment age discrimination cases are filed -- allows business necessity as a legitimate reason for downsizing.

Older employees often make more money than their junior colleagues, said Charles Kraver, professor of employment law at George Washington University Law School. If agencies choose to eliminate younger workers, they have to cut more of them in order to satisfy tight budget requirements, and courts tend to agree with employers that it makes business sense to eliminate higher-paid employees first.

"The courts don't require that the agency offer to keep older workers at a lower salary," Kraver said. "I don't know if that would be a good system, but right now it's not required."

In this case, however, Congress later reinstated the funding it had threatened to cut from USGS' budget, according to Dryovage. But the agency did not hire back its old workforce. Dryovage maintained that although USGS did add 100 new positions after the RIF, 50 were left unfilled.

In a response brief filed in February 2006 in the Circuit Court, the Interior Department, which includes USGS, maintained that the scientists were subject to the RIF because their expertise did not match job descriptions, not because of their individual work history or age.

But the scientists claim that the agency used the RIF as a tool to remove older employees unfairly. Two alleged that a supervisor held a meeting at which he counseled younger employees on how to keep their jobs. The older scientists allegedly were not invited.

Other scientists pointed to speeches by USGS' then-Director Gordon Eaton, some of which allegedly contained jokes at the expense of older workers, and interagency memoranda that suggested the RIF targeted older workers.

Kraver said discriminatory jokes aren't enough to prove that age discrimination occurred. "The courts are going to ask if the jokes were made by someone in a decision-making position," he said. Criteria like these make age discrimination cases very difficult to win, he said. "In a majority of these cases, courts find in favor of the employer."

Some of the scientists said their controversial research may have provoked the firings. David Adam claimed he was targeted not just because of his age, but also because he was a whistleblower. At the time of the RIF, Adam was using pollen core samples to examine trends in global climate change. "The government would never have been able to argue that they didn't know about global warming if they had kept Dave Adam on the payroll," Dryovage said.

Jeff Ruch, who serves as executive director of Public Employees for Environmental Responsibility, the organization that first brought the case to light, said his group got involved because of the whistleblower angle.

"It appeared that scientists were being targeted for their independence," Ruch said. He pointed to the example of Arthur Grantz, another one of the eliminated scientists.

Grantz's research suggested that oil holdings in the Arctic National Wildlife Refuge "were not as great as the government was estimating," Ruch said. PEER dropped out of the case when the focus began to shift from whistleblower claims to age discrimination, but the organization did bring one of the fired scientists onto its board of directors.

When the case was first filed in California district court in 1998, Dryovage represented 37 USGS scientists who claimed they were targeted for elimination based on age, national origin or whistleblower status. USGS rehired 10 of them after initial discussions. Several more dropped out of the case, some because their claims weren't directly related to age discrimination.

"The way that the law is written, it's very difficult for someone to win on a whistleblower claim," said Dryovage of those who dropped out.

The USGS case is not the only instance in which federal employees have sued the government for age discrimination. According to the Equal Employment Opportunity Commission's Federal Work Force Report for 2006, federal employees filed 4,769 age discrimination claims in 2006. James Ryan, an EEOC spokesman, said age discrimination is the third most common form alleged, after race- and reprisal-based discrimination. He also said that many employers "don't realize age discrimination is as illegal as discrimination based on race or gender."

One of the reasons people who charge age discrimination have trouble getting a day in court may be the nature of the claim itself, Kraver said. "Every employee was young once," he said. "The court assumes that when you were twenty-five, you were the beneficiary of being young. That's what makes age discrimination different from any other claim, and also so difficult to win." The government also has cited new technology and the changing requirements of positions as a reason for eliminating older workers. "Over the course of a person's career, their job requirements might change," Kraver said. "In that case, the agency will have to restructure its workforce." But he also noted technology updates do not have to make older workers obsolete. Dryovage argued that in the USGS case, the agency lost some of its most valuable employees through the RIF. "They were world-renowned, award-winning scientists," she said, pointing to awards given to Grantz by USGS. "You're talking about the very guys who have been teaching computer languages since the '80s. The argument that they couldn't learn [new technology] at the same rate as young people just doesn't make sense."

The Interior Department did not return calls seeking comment, and a spokesman from USGS was not available for comment.

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