But a permissible inference is not a presumption and it does not ipso facto constitute proof by a preponderance of the evidence.
In summary then, we conclude that the plaintiff has failed to establish a prima facie case on his first theory of recovery because: a) his transfer to Harlingen does not constitute an adverse employment decision; and b) there is no evidence showing that the employer did not treat age as a neutral factor. Even were we able to stretch the plaintiff's showing on this theory into a prima facie case, the defendant's rebuttal satisfies us by a preponderance of the evidence that no age discrimination in fact occurred.
We turn now to plaintiff's second theory of liability, the defendant's failure to provide Haimovitz with the information about the non-attorney position in Pittsburgh. When an employer assumes the duty of providing its employees with job information during a reduction in force, liability may attach in some circumstances if the employer provides less assistance to the older employees. Fink, 708 F.2d at 918.
The employer in Fink, supra, was not liable for age discrimination because of the manner in which the job information was supplied to its employees who would lose their jobs. The information which the employer provided concerned actual job vacancies in its own operations, as well as in unrelated corporations. The court found that the employer had provided job information to all employees on an equal basis. Furthermore, the court reasoned that the information relating to other entities in which the employer had no control over hiring decisions was irrelevant. Fink, 708 F.2d at 918. Significantly, the plaintiff's claim centered on the position over which the employer had no hiring authority.
The court in Fink went on to conclude that the "record leads to one inescapable conclusion: The plaintiff was responsible for his own failure to secure a job." Id. at 919. The plaintiff was uninterested in pursuing a job, he thought the job would last for four more years and preferred to take his chances, and he knew of the deteriorating job situation. In light of these facts, the court held that "simply because his gamble went awry provides no basis in fact or law for a finding that the plaintiff failed to get a job 'but for' his age and, more pertinently because of any bias or inaction on the part of the defendant." Id. The circuit court then reversed and vacated the judgment for the plaintiff and remanded the cause to the district court to enter judgment for the defendant.
In the matter before us, the defendant provided information about jobs to all pool attorneys on an even-handed basis in the form of written memoranda announcing actual job vacancies in which the defendant had the necessary authority to make appointment decisions. These were distributed to each INS office with pool attorneys. In turn, the officers in charge would follow the custom of that office in posting and distributing the memoranda.
Consequently, we are unable to find any taint of age discrimination in the defendant's undertaking to provide its pool attorneys with job information. We are mindful of the fact that the plaintiff's case hinges on Sharkey's contact with Landolina about a possible opening. We do not find this communication attributable to the defendant. The components of this communication are not analogous to the defendant's memoranda in any respect. The communication was purely speculative on Sharkey's part and concerned a position which did not exist. The defendant's memoranda, on the other hand, concerned actual job vacancies. Moreover, the information provided by Sharkey failed to even refer to the immigration examiner position which Landolina eventually obtained. Instead, Sharkey's communication pertained to a half immigration examiner, half attorney position which was never authorized for the Pittsburgh office. In addition, the communication by Sharkey pertained to a position, which if it existed, would not have been subject to the control of the defendant. It was, instead, a competitive service job. The defendant's memoranda, by contrast, always referenced positions over which the defendant had the authority to appoint the individual. As in Fink, 708 F.2d at 918, Sharkey's communication is irrelevant.
Second, we do not find that this single instance is sufficient to establish by a preponderance of the evidence that the defendant's efforts to assist its employees affected by the reorganization was compelled by considerations of age. We have found the communication to have been a suggestion made to a friend who was distressed, a friend who actively canvassed numerous government agencies in the Pittsburgh area for a position. Moreover, the communication did not provide Landolina with any new information. Both plaintiff and Landolina knew that the work they had performed would eventually be performed by an individual in a non-attorney position in Pittsburgh. Furthermore, both plaintiff and Landolina knew where to look for job announcements in the Pittsburgh office. In short, Sharkey's communication did not provide Landolina with information regarding an actual job vacancy. Nor did it provide Landolina with information that was not equally available to Haimovitz. Therefore, both plaintiff and Landolina received substantially the same information. Landolina as the younger attorney did not receive more favorable treatment.
Plaintiff's case of age discrimination based on the communication between Sharkey and Landolina, although established prima facie, has not been established by a preponderance of the evidence. An appropriate order will be entered.
AND NOW, this 23rd day of August, 1989, upon consideration of the non-jury trial held in this matter and the trial briefs of the parties, it is
ORDERED, that judgment is entered for the defendant against the plaintiff. The Clerk of Court shall mark this case closed.