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. Sec. 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.

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-13.1 He renewed his eligibility each year thereafter, and he made repeated inquiries into openings whenever they were announced by CSC.2

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 for consideration.3 Fourth, he met with the hiring supervisor, Mr. Albert Treichel, and other GSA officials several times before the final decision was made.4

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.5 Mr. Daley was the youngest of all the candidates,6 was next to the lowest in job rating,7 and, along with appellant, had the lowest performance rating.8

GSA initially asserted that appellant was equally considered for the communications specialist position.9 Later, Mr. Treichel, the hiring supervisor, claimed that he did not remember seeing appellant's certificate of eligibility at the time he made the selections, and therefore that he could not purposefully have discriminated against appellant.10 But Mr. Treichel did admit to being aware of appellant's age and background (from their earlier meeting),11 and openly conceded that "[a]ge is a minor consideration to selection, but is not the sole motivating factor."12 He testified that he selected Mr. Daley for the position because the latter was familiar with GSA operations, could be immediately productive, and would require the least amount of training.13 But Mr. Joseph Daniel, Director of GSA's Equal Employment Opportunity Division, reported that he could not agree with the decision because age "was in fact a selection factor."14

At trial the District Court, over the government's objection, ordered the case to a jury. The court instructed the jury that:

In order to prove his claim of age discrimination the burden is on the plaintiff to establish by the preponderance of the evidence, as I have already explained that term to you, that he was discriminated against by the Defendant because of his age and that as a result he was not selected for the position of a Communications Specialist GS-13.

Now, the Plaintiff's claim, as I said, is that he was not selected because the Defendant considered him to be too old and preferred a younger person and that such action constitutes prohibited discrimination.

Ladies and gentlemen, if you find the Plaintiff's age was the determining factor considered by the Defendant in its decision to select someone other than the Plaintiff then you are entitled to find that the Defendant discriminated against the Plaintiff by virtue of age. On the other hand, if you find that the Defendant made its decision to appoint someone other than the Plaintiff to the position in question for a reason or reasons other than age of the Plaintiff and the age of the Plaintiff was not the determining factor in that selection then your verdict must be for the Defendant.

Following this instruction, the jury returned a verdict for the government, finding that no violation of the ADEA had been proved.

Congress passed ADEA in 1967 to protect older members of the nation's workforce from discrimination premised on age differences.15 Lorillard v. Pons, 434 U.S. 575, 577, 98 S. Ct. 866, 868, 55 L. Ed. 2d 40 (1978). As originally enacted, ADEA applied only to employees in the private sector; it prohibited employers from taking adverse employment action "because of" a protected worker's age.16 29 U.S.C. Sec. 623 (Supp. IV 1980). In 1974 Congress amended ADEA to bring federal employees and applicants for federal positions under the Act's protective umbrella.17 Section 633a requires federal employment decisions to "be made free from any discrimination based on age." 29 U.S.C. Sec. 633a (Supp. IV 1980). This section did not change the standard for establishing an ADEA violation, but simply extended the procedures and remedies available for vindicating age discrimination claims to employees of and applicants to the federal government.18

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 inference that age discrimination was "a determining factor" in the employment decision.19 Such an inference is created if the plaintiff shows that he (1) belongs to the statutorily protected age group (40-70), (2) was qualified for the position, (3) was not hired, and (4) was disadvantaged in favor of a younger person.20 See Sutton v. Atlantic Richfield Co., 646 F.2d 407 (9th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979). Cf. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981) (analogous elements under Title VII); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) (same). Once a prima facie case has been established, the employer has the burden of producing evidence tending to show that the applicant was denied employment for a legitimate, nondiscriminatory reason.21 If the employer does so, and if his evidence is credible, the plaintiff must show by a preponderance of the evidence that the employer's asserted legitimate reason is merely pretextual. See, e.g., Tribble v. Westinghouse Electric Corp., 669 F.2d 1193, 1196 (8th Cir.1982), petition for cert. filed, 50 U.S.L.W. 3984 (U.S. May 29, 1982); Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir.1981). Once this stage is reached, the order and allocation of proof has served its purpose of bringing "the litigants and the court expeditiously to [the] ultimate question" of discrimination. Burdine, supra, 450 U.S. at 253, 101 S. Ct. at 1093. The plaintiff, who at all times retains the burden of persuasion, must then show by a preponderance of the evidence that age was "a determining factor" in the employer's decision.22 In other words, plaintiff must prove by a preponderance of the evidence that age made a difference in the employer's decision not to hire him.23

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 GSA operations, that the selectee could be immediately productive, and that the selectee would require the least amount of training. This shifted the burden back to plaintiff-appellant to show pretext and to carry the ultimate burden of persuasion. Appellant attempted to carry this burden with direct evidence that age was a selection factor--the statements of Mr. Treichel and Mr. Daniel--and with circumstantial evidence about his, the selectee's, and the other applicants' qualifications. The trier of fact then had to weigh this evidence and determine whether plaintiff had proven by the preponderance of the evidence that age was a determining factor in the decision.

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.24 For the reasons articulated in Johnson, we reach the same conclusion here. Therefore, the District Court erred in ordering the case to jury trial over the government's objection, and the jury's verdict must be vacated.

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.25 It can base these findings and conclusions on the trial record, or, in its discretion, it can ask for more evidence on the issue. In any event, when weighing the evidence the District Court must keep in mind the difficulties plaintiffs face in proving ADEA violations. Employees and applicants for employment have great informational disadvantages: they cannot reach into the minds of decisionmakers, and therefore they usually can gather only circumstantial evidence of discriminatory motives.26 Hence, the trier of fact should take special care to require of plaintiff only that he present sufficient evidence to allow a reasonable person to draw from it the inference of the fact to be proved. C. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE Sec. 338 (2d ed. E. Cleary 1972). See generally Mendez, Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases, 32 STAN.L.REV. 1129 (1980). Plaintiff-appellant should only have to show that age was a determining factor, as earlier defined, in the government's decision to hire someone else by a preponderance of the evidence.27III. CONCLUSION

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.

So ordered.