Dilla v. Caldera

                                                                            [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                      FILED
                                                                U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                       07/08/99
                                                                   THOMAS K. KAHN
                                      No. 98-6457                       CLERK



                           D. C. Docket No. CV-97-T-1003-N


      ROBERT P. DILLA,
      HALE P. LANE, JR., et al.,

                                                                      Plaintiffs-Appellants,

                                         versus

      TOGO D. WEST, JR., Secretary,
      Department of the Army,

                                                                      Defendant-Appellee.



                       Appeal from the United States District Court
                           for the Middle District of Alabama


                                      (July 8, 1999)


Before TJOFLAT, DUBINA and HULL, Circuit Judges.




PER CURIAM:
       The appellants – Robert Dilla, Hale Lane, and Dennis Eason – applied for an

air traffic controller position with the United States Army. All three were rejected

in favor of a substantially younger applicant, Kevin Nolan. Subsequently, the

appellants filed suit against the Secretary of the Army in federal district court,

alleging that the Army’s refusal to hire them was based on age discrimination in

violation of the Age Discrimination in Employment Act (ADEA), 

29 U.S.C. §§ 621-634

 (1994). After a bench trial, the district court found that the appellants

were rejected because (1) they would be eligible to retire much sooner than Nolan

and (2) they had achieved a higher pay grade than Nolan in previous employment,

and therefore would require a higher salary than Nolan in the air traffic controller

position.1 See Dilla v. West, 

4 F.Supp.2d 1130, 1141-44

 (M.D. Ala. 1998),

corrected by 

31 F.Supp.2d 1347

 (M.D. Ala. 1999). Both of these factors are

directly correlated with age – older workers are generally (but not necessarily)

closer to meeting federal retirement criteria and further advanced in their pay grade

than younger workers. The district court, however, relying on Hazen Paper Co. v.

Biggins, 

507 U.S. 604

, 

113 S.Ct. 1701

, 

123 L.Ed.2d 338

 (1993), concluded that

“the mere fact that there exists a perfect correlation, or even a direct link, between


       1
         More specifically, the district court held that, even if the defendant’s decision was based
in part on the appellants’ ages, the same decision would have been made in the absence of such
discrimination for the two reasons stated in the text.

                                                 2
age and the factor purportedly relied upon by the employer does not perforce mean

that the employer has impermissibly relied on age.” Dilla, 

4 F.Supp.2d at 1142-43

.

Consequently, the district court ruled in favor of the defendant.

      We agree with the district court’s analysis of Hazen Paper: Reliance on

factors correlated with age does not by itself constitute age discrimination. To be

sure, purported reliance on such factors may be a pretext for discrimination; if so,

the defendant has violated the ADEA. See 

id. at 1142

. The district court,

however, concluded on the basis of substantial evidence that no such pretext was

involved in this case. The district court’s judgment is therefore

      AFFIRMED.




                                          3