Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
J. SKELLY WRIGHT, Circuit Judge:
William H. Cuddy, appellant, sued the General Services Administration (GSA), appellee, on the ground that it willfully and knowingly discriminated against him on the basis of age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1976 & Supp. IV 1980). The District Court, over the government's objection, ordered the case to jury trial. The court instructed the jury that plaintiff had the burden of proving by a preponderance of the evidence that age was the "determining" factor in defendant's decisionmaking. The jury returned a verdict in favor of the government.
Cuddy appeals the adverse jury verdict, contending that the District Court erroneously instructed the jury regarding the standard for proving an ADEA violation and that the preponderance of the evidence, despite the jury's verdict, was in his favor. The government disputes both contentions, and also argues that the District Court erred in ordering the case to jury trial. Because we agree that the case should not have been tried to a jury, we remand to the District Court for entry of findings of fact and conclusions of law consistent with the principles set forth in this opinion.
I. THE FACTS
Appellant worked for 38 years in the private sector of the communications industry (for New England Telephone Company). In anticipation of his compulsory retirement (at age 65), appellant, who wishes to continue working for as long as his health permits, filed an application with the federal government (in 1966) for a position as a telecommunications specialist. At that time, he received his first Civil Service Commission (CSC) rating—GS-13.
In 1975 appellant was placed on the Certificate of Eligibles for a GS-13 communications specialist position. In February of that year, the Automatic Data and Telecommunication Service (ADTS), a component part of GSA, advertised a GS-13 communications specialist position. Appellant diligently contacted persons at GSA to assure his consideration for this position. First, he visited Mr. Robert Schoenfeld, a Personnel Management Specialist at GSA, who explained the CSC certification process. Second, he returned his signed certification for the position to Mr. Schoenfeld. Third, he visited with Mr. Schoenfeld and discovered that he was among three remaining outside candidates eligible for the job, and that only six persons total were up
Appellant's signed certification was forwarded, along with the names of the other eligible candidates, to Mr. Treichel on May 20, 1975. On May 22 the agency's merit promotions panel referred the names of the highest and best qualified applicants to Mr. Treichel. On June 5, 1975 Mr. Treichel selected Mr. Robert Daley, a current employee of GSA, for the position.
Appellant claims that GSA discriminated against him because of his age. In 1975, when he applied for the position, appellant was 64 years old—27 years older than the ultimate selectee. During appellant's long career, which included four years as a Signal Officer in World War II, he had been a supervisor in plant assignments and operations, a specialist in planning systems cutovers, and a coordinator of other Bell System departments with his department's operations. In applying for government jobs he had scored 101/104 points—the highest of all six eligible candidates—on the civil service exam. By contrast, Mr. Daley, the ultimate selectee, had about fifteen years of private sector experience (most as a cable splicer and repairman), fourteen months of non-supervisory experience as a GS-12 communications specialist, and about a year as manager of the government's "10/7 conversion" project.
GSA initially asserted that appellant was equally considered for the communications specialist position.
At trial the District Court, over the government's objection, ordered the case to a jury. The court instructed the jury that:
Following this instruction, the jury returned a verdict for the government, finding that no violation of the ADEA had been proved.
II. PROOF OF ADEA VIOLATIONS
Congress passed ADEA in 1967 to protect older members of the nation's workforce from discrimination premised on age differences.
To make out a prima facie case of age discrimination against either government or private employers, a plaintiff must demonstrate facts sufficient to create a reasonable
The manner in which this order and allocation of proof becomes functional can be seen when applied to the facts of this case. Appellant established a prima facie case by showing (1) that he was 64 years old, (2) that he was certified for the position, (3) that he was not hired, and (4) that the ultimate selectee was only 37 years old. The employer then met its burden of producing evidence by showing legitimate reasons why the selectee was the best qualified: that the selectee was familiar with
The District Court submitted this question to a jury. The jury found that age was not a determining factor in the decision. But subsequent to the jury's verdict the Supreme Court ruled that, although a person who brings an action against a private employer under ADEA does have the right to a jury trial, a federal employee or job applicant does not have that right. Lehman v. Nakshian, 453 U.S. 156, 165, 101 S.Ct. 2698, 2704, 69 L.Ed.2d 548 (1981). This court, in Johnson v. Lehman, 679 F.2d 918 (D.C.Cir.1982), held that there was no manifest injustice in applying Nakshian retroactively to that ADEA case.
Whether appellant proved by a preponderance of the evidence that age was a determining factor in the employment decision is now properly a question for the court. On remand, the District Court must enter findings of fact and conclusions of law on this issue.
Because we find that the District Court erred in ordering the case to a jury, we remand for entry of findings of fact and conclusions of law consistent with the principles set forth in this opinion. In so remanding, we remind the District Court that ADEA is remedial and humanitarian legislation, and that it should be interpreted to effectuate the congressional purpose of ending age discrimination. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 765-766, 99 S.Ct. 2066, 2076, 60 L.Ed.2d 609 (1978) (Blackmun, J., concurring). The Act seeks to promote employment of older persons based on their ability rather than their age. Lower courts must be cognizant of this underlying policy in deciding whether plaintiffs have carried their ultimate burden, and such courts must be chary of creating walls too steep for meritorious claimants to climb.
The judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion.
For further discussions of the problems of age discrimination and of the efforts Congress took to remedy these problems, see Legislative History of the Age Discrimination in Employment Act, U.S. Equal Employment Opportunity Commission (1981) (EEOC compilation of ADEA's entire legislative history). See generally 3 A. LARSON & L. LARSON, EMPLOYMENT DISCRIMINATION §§ 98.10-.53 (1981); Note, Age Discrimination and the Disparate Impact Doctrine, 34 STAN.L.REV. 837 (1982); Note, The Age Discrimination in Employment Act of 1967, 90 HARV.L.REV. 380 (1976).
This "determining" factor standard can be found in the legislative history. See S.Rep. No. 723, 90th Cong., 1st Sess. 7 (Nov. 4, 1967) ("The purpose of this legislation, simply stated, is to ensure that age, within the limits prescribed herein, is not a determining factor in a refusal to hire."). See also 113 Cong.Rec. 31255 (1967) (statement of Sen. Javits); S.Rep. No. 95-493, 95th Cong., 1st Sess. 2, 3, reprinted in  U.S.Code Cong. & Ad.News 504, 506. The Department of Labor has consistently interpreted the statute to ensure that age was not a "determining" factor in employers' decisions. 29 C.F.R. § 860.103(c) (1981).
In a recent Third Circuit case, the District Court had found that age "was not the determinative factor," and appellant challenged the propriety of that standard for evaluating the evidence before it. Smithers v. Bailar, supra note 19, 629 F.2d at 896. The Court of Appeals considered appellant's argument that use of the word "the" was error and acknowledged that the District Court's formulation "would have been more clear if it had used the indefinite rather than the definite article." Id. Examining the entirety of the District Court's findings, however, the court held that the opinion as a whole reflected that the District Court implicitly had applied the proper rule of law, as indicated by the trial court's elaboration of its analysis and citations to other cases in which the correct test was explained. Id. at 897. In the instant case, the District Court offered no such embellishment that might clarify for the jury what the court intended the standard to be. See also Spagnuolo v. Whirlpool Corp., supra note 19, 641 F.2d at 1111-1112 (rejecting employer's argument that failure to charge jury that "age must have been the determinative factor" constituted error) (emphasis in original).
Though the courts vary their reformulations slightly, we can discern no immediate logical difference between them. The notion of "but for" causation—or causation-in-fact—is a basic, threshold issue of plaintiff's action; an act is typically not regarded as a "but for" cause of an event if the event would have occurred without it. See W. PROSSER, LAW OF TORTS 236-241 (4th ed. 1971). Thus, the "but for" reformulation is no more than the traditional factual inquiry into whether consideration of the impermissible criterion made a difference toward causing the adverse action to occur.
These reformulations arise from the statutory scheme itself. Differentiation "because of" age is unlawful, 29 U.S.C. § 623(a) (Supp. IV 1980), but not differentiation attributable to "reasonable factors other than age." 29 U.S.C. § 623(f)(1) (Supp. IV 1980). A transgression arises only if age contributed to the employer's action—so that the differential cannot be ascribed to influences "other" than age. If age is what tips the scale in an adverse employment decision, a violation of the Act has occurred. Conversely, if reasonable and lawful factors dictate and support the employer's decision, additional consciousness of age is not itself interdicted by the Act. The courts agree that age need not be the sole factor, or even the most compelling; it simply must be a consideration that made a difference in shaping the outcome. See C. EDELMAN & I. SIEGLER, supra note 22, at 188 & n. 360.