
USCA1 Opinion

	




          March 20, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1896                                                 EDWARD SACK,                                Plaintiff, Appellant,                                          v.               LLOYD BENTSEN, SECRETARY OF THE DEPARTMENT OF TREASURY,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ___________________               Edward Sack on brief pro se.               ___________               Donald  K.  Stern, United  States  Attorney,  and Cheryl  L.               _________________                                 __________          Conner,  Assistant U.S.  Attorney, Civil  Division, on  brief for          ______          appellee.                                  __________________                                  __________________                 Per Curiam.  Plaintiff  Edward Sack commenced this civil                 __________            action  against  the  Secretary  of the  Treasury  after  the            Internal Revenue Service (IRS) rejected him for a position as            an Estate  and Gift Tax Attorney in  its Boston office.  Sack            alleged that  the IRS's system  of rating the  applicants for            these positions violated the Age Discrimination in Employment            Act  (ADEA),  29 U.S.C.   621  et  seq.,  and  the  Veterans'                                           __  ____            Preference  Act, 5 U.S.C.   3311, 3313.  Both sides moved for            summary judgment, and the district court granted judgment for            the Secretary.  Sack now appeals.  We affirm.                                   I.  BACKGROUND                                    ______________                 The following facts  are undisputed.  Sack  is a veteran            who graduated from law school in 1959.  He last  worked as an            attorney in 1986.   In November 1990, the IRS  announced that            it  was  accepting  applications  for  Estate  and  Gift  Tax            Attorney positions  (Grades  9  and 11)  in  its  Boston  and            Portsmouth offices.   Sack was  58 years old  when he  sought            this position. A total of 151 persons submitted applications.                 All applicants were evaluated  and assigned a  numerical            score pursuant  to the  Single Agency  Qualification Standard            (SAQS) for Attorney  (Estate Tax) and Law  Clerk (Estate Tax)            described   in   the  IRS's   Qualifications   Standards  and            Guidelines Handbook.1                                              ____________________            1.  Applicants  were  not  required  to  complete  a  written            examination.  Rather, they were rated based on the extent and            quality of  their education,  experience and  training. (App.                                         -2-                 Under the SAQS, all applicants who met the basic minimum            qualifications  for the positions received a base score of 70            points.  Additional  points could be added  to an applicant's            base  score  if  he  or  she  possessed  recent  education or            experience.    For example,  an  applicant  could receive  an            additional  15 points if he  or she had  either completed law            school,  been  admitted to  a bar,  or  completed at  least 6            months  of progressively responsible  legal experience within            the past 12-18 months.   These points were also  available to            applicants   who  had   completed  accounting   education  or            experience within similar  time frames.  Ten points  could be            added  to  an  applicant's  score if  the  applicant's  legal            education or professional legal  or accounting experience had            been obtained within the  past 2-4 years.  However,  the SAQS            did not provide for  the award of additional base  points for            legal  experience or  education completed  more than  3 years            from the date of the application.  (App. 46-47).2                   Using  this rating  system, IRS Managers  Richard Murray            and Thomas Fleming and  Branch Chief Richard Teed  ranked the            applicants  for the Estate Tax Attorney positions.  Sack, who            was employed as a salesman for Lechmere when he submitted his                                            ____________________            42).            2.  Bonus points  were available if an  applicant had special            qualifications,  e.g. excess professional legal or accounting            experience.   In  addition,  section 905.218(3)  of the  SAQS            required the  IRS to observe  veterans' preference procedures            in selecting estate tax attorneys.                                           -3-            application,  received a total numerical score of 76.  He was            given 70  points for  having a  law degree and  5 points  for            being a veteran  under 5 U.S.C.  3309.3  Sack  was only given            1 point for  his past legal  experience, which was  completed            beyond the periods for which the 10-15 additional base points            were available.4                 Sack's  was  the  third   lowest  score  among  all  the            applicants  who were  considered  for a  position in  Boston.            Applicants whose  scores were  90 or  above  were deemed  the            "Best  Qualified  Candidates."    Approximately  20  of these            candidates were interviewed, including 5 who were between the            ages of 55 and 60.  Ultimately six persons were hired for the            Boston office  and two were hired for  the Portsmouth office.            Seven  of the eight new  hires had received  an additional 15                                            ____________________            3.  5 U.S.C.  3309(2) authorized  the addition of five points            to  the rating  scores  of  veterans  who,  like  Sack,  were            preference eligible under 5 U.S.C.  2108(3)(A).            4.  Sack's  application indicated  that he  last worked  as a            self-employed  attorney between May  1985 and  December 1986.            He was  unemployed between  January 1987 and  September 1989,            when  he began to work for  Lechmere.  Between 1960 and 1962,            Sack worked as  an attorney  for the IRS  issuing rulings  on            educational  and charitable organizations that sought federal            income  tax exemptions.    He was  employed  as an  associate            counsel for a  life insurance company between  1971 and 1978,            during which time  he reportedly dealt  with estate and  gift            taxes.    Sack's  remaining experience  is  characterized  by            various short-term attorney jobs and periods of unemployment.                                                        -4-            points for completing law school within  the past 18 months.5            Two of the eight persons who were hired were older than Sack.                 Sack  was notified that he  had not been  selected for a            position  by  letter  dated   February  1,  1991.6    Shortly            thereafter,  Sack contacted  an Equal  Employment Opportunity            Counselor.  On  or about April 1,  1991, Sack filed a  formal            Individual  Complaint of  Employment Discrimination  with the            Department of the  Treasury (DOT).   (App. 57).   He  charged            that the provisions of the SAQS that allowed  15 points to be            added to the scores of applicants  who had recently graduated            from law school discriminated against him on the basis of age            because  they obviously  inured  almost  exclusively  to  the            benefit of younger applicants.  Sack also alleged that  these            provisions  effectively  nullified  the veterans'  preference            rules because they allowed additional points to be granted to            a nonveteran who  had the same amount of legal education as a            veteran.       Sack's complaint was accepted and investigated            by the  DOT's Chicago Regional  Complaints Center (RCC).   On            September  6, 1991,  the  RCC issued  a Proposed  Disposition            Letter  which  found no  discrimination.    Sack requested  a            hearing  before  an  administrative  law  judge.    He  later                                            ____________________            5.   One  received these points  for receiving an  LLM within            the past year.            6.  The  letter  stated,  "This  is  no  reflection  on  your            qualifications.     All   candidates  were   extremely   well            qualified, ...."                                         -5-            withdrew that  request and requested a  final agency decision            on the  record.  (App. 101,  108).  On April  20, 1992, after            Sack's administrative  complaint had been pending  for over a            year without a  final decision from  the DOT, Sack  commenced            this civil  action.   On February 3,  1993, the DOT  issued a            Final Decision that again found no discrimination.                 Shortly after  the DOT  issued this decision  Sack moved            for  summary  judgment.    His motion  was  supported  by the            pleadings, answers to  interrogatories, and various documents            related  to   the  IRS's  application   process  and   Sack's            administrative complaint.7   Sack  argued  that the  evidence            established a prima facie  case of age discrimination through            disparate  treatment under  the  familiar  McDonnell  Douglas                                                       __________________            formula  and that  the IRS  failed to  identify a  legitimate            nondiscriminatory  reason  for  its point-rating  system.  He            specifically  charged  that  the  reasons that  the  IRS  had            offered in support of its rating system were inconsistent and            contained admissions of age  discrimination.8  And while Sack                                            ____________________            7.  Among  Sack's supporting  documents were  his application            for  federal  employment,  relevant excerpts  from  the SAQS,            Sack's complaint  (and supporting  affidavit) to the  DOT, an            excerpt  from  the  DOT's  report of  investigation  on  that            complaint, the DOT's 9/6/91 Proposed Disposition Letter,  and            the DOT's 2/3/93 Final Decision.            8.  For example, the DOT's report  of investigation indicated            that the SAQS compensated recent law school graduates for the            recency  of their  education so  that they  could numerically            compete  with   candidates  who  earned  points   for  recent            experience.   The  DOT's Final  Decision stated,  inter alia,                                                              _____ ____            that Sack was,  "correct in  his assertion that  a policy  of                                         -6-            expressly disclaimed reliance on the  disparate impact theory            of relief,  he also  attacked the DOT's  Proposed Disposition            Letter,  which concluded  that  there was  no  discrimination            under the disparate impact analysis.9    S a c k      a l s o            maintained  that  the granting  of  15  additional points  to            recent  law  school  graduates  while  denying  same  to  him            constituted age discrimination as a matter of law. He claimed            that he, too, was  entitled to 15 additional base  points for            his  legal education or experience.   Sack noted  that had he            been  awarded  these points,  his score  would have  tied the            scores of two  of the applicants who had  received positions,            and he,  as a veteran,  would have been entitled  to be hired            first under  5 U.S.C.   3313.10   Finally,  Sack argued  that            the  IRS's   failure  to  award  him   15  additional  points                                            ____________________            granting credit for recent graduation from law school affects            a category of  persons predominantly under 40."   Sack argued            that  these  comments,  which  were  taken  out  of  context,            constituted admissions of age discrimination.            9.  Sack argued  that the  DOT erred  in concluding  that the            SAQS did not result in age  discrimination simply because two            persons  older than him were  hired.  He  maintained that the            DOT's analysis  relied on a sample  that was too small  to be            reliable  for purposes of determining  whether the SAQS had a            disparate impact.  However,  Sack's primary argument was that            the SAQS were obviously  discriminatory.  Thus, he maintained            that the DOT erred in applying the disparate impact test.                10.  5 U.S.C.   3313 prescribes  how the lists  of applicants            for  federal  positions  are to  be  prepared.   The  statute            provides, in relevant part,  that, "[t]he names of preference            eligibles  shall be entered  ahead of others  having the same            rating."                                         -7-            diminished  his  veterans' preference  and violated  5 U.S.C.             3311.11                  The Secretary filed an opposition to Sack's motion which            included  a   cross-motion  for   summary   judgment.     The            Secretary's motion was supported  by affidavits from  several            IRS  employees  and  the   records  generated  by  the  IRS's            investigation   of  Sack's  administrative  complaint.    The            Secretary  argued, inter alia,   that Sack failed  to prove a                               _____ ____            prima facie  case  of age  discrimination  through  disparate            treatment.  While the Secretary conceded that Sack was within            the  protected  age group  and  minimally  qualified for  the            position, he argued  that the McDonnell Douglas  test was not                                          _________________            satisfied because two persons older than Sack had been hired.            Alternatively, the Secretary maintained that even if Sack had            made  out  a  prima  facie  case,  the  IRS had  successfully            rebutted  it  with evidence  that  the IRS  had  a legitimate            business  interest  in using  a  rating  system that  favored                                            ____________________            11.  5 U.S.C.  3311 provides, in relevant part:                      In  examinations  for  the competitive  service  in            which          experience is an element of qualification, a                             preference eligible is entitled to credit -                                     *      *      *                      (2) for all experience material to the position for                      which examined, including experience gained in                           religious, civic, welfare, service and             organizational             activities, regardless of  whether            he        received pay              therefor.                                         -8-            recent  over  remote   education  and   experience.12     The            Secretary  also argued that Sack had failed to prove that the            point-rating system was a pretext for unlawful discrimination            and that the  Veterans' Preference  Act did not  give Sack  a            cause of action.   Thus,  the Secretary claimed  that he  was            entitled to summary judgment.13                 On  July 21, 1994, the  district court issued a decision            which  granted  the  Secretary's  cross-motion   for  summary            judgment.   The court eschewed the  jurisdictional issues and            held  that Sack failed to make out  a prima facie case of age            discrimination  through disparate treatment.   Because Sack's            score  did not  reach  the 90-point  threshold  of the  "Best                                            ____________________            12.  The DOT  submitted an affidavit from  Amy Chassid, chief            of one of the IRS's organizational and planning sections. She            averred  that   the  SAQS  gave  greater   weight  "to  those            applicants  who demonstrate  current  familiarity with  legal            matters ...  by either  experience or education."   (emphasis                            ________________________________            supplied).  She  further averred that  it was reasonable  for            the IRS to  prefer applicants with recent  rather than remote            experience  or   education   because  recent   education   or            experience was  easier to  evaluate and could  reflect up-to-            date knowledge  of legal principles and agency practices.  In            addition,  affidavits from  the IRS supervisors  who actually            ranked  the  applicants (Murray  and Fleming)  indicated that            Sack did  not receive additional  points because he  had been            out  of practice  for several  years  and thus  lacked recent            legal experience.                13.  The Secretary also argued that the district court lacked            jurisdiction  over  Sack's  claims  because  Sack  failed  to            exhaust  his  administrative remedies  and further  failed to            file  a timely complaint with  advance notice to  the EEOC as            required  by 29 U.S.C.   633a(d).  Sack filed  a reply to the            Secretary's opposition which argued that this case should not            be  dismissed  for  the  failure  to  exhaust  administrative            remedies and otherwise reiterated Sack's previous arguments.                                         -9-            Qualified Candidates", the district court  reasoned that Sack            was not qualified for the position and did not address Sack's            contention  that the  IRS's system  of awarding  these points            violated  the  ADEA.    The  court  also  concluded  that the            Veterans' Preference  Act did not require  that 15 additional            points be added to Sack's base score  simply because he was a            veteran.   Sack  filed a  timely notice  of appeal  from this            ruling.                                    II. DISCUSSION                                    ______________                 We  afford  plenary review  to  the  order granting  the            Secretary's motion for summary judgment and review the record            in  the light  most favorable  to Sack.   Mesnick  v. General                                                      _______     _______            Electric Co., 950 F.2d 816, 822 (1st Cir. 1991).  "In an ADEA            ____________            failure  to hire  discrimination  suit,  plaintiff bears  the            ultimate  burden  of  persuading  the   factfinder  that  the            employer   illegally   discriminated  against   plaintiff  by            refusing to  hire  plaintiff on  the basis  of his/her  age."            Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.            _____    ________________________            1994).  Where, as  here, the plaintiff elects to proceed on a            disparate  treatment  theory,  he  must prove  that  the  IRS            harbored a discriminatory motive when  it decided not to hire            him. See, e.g., Hazen Paper Co.  v. Biggins, 113 S. Ct. 1701,                 ___  ____  _______________     _______            1705 (1993)(proof of discriminatory motive is critical); Holt                                                                     ____            v. Gamewell Corp., 797 F.2d 36, 37 (1st  Cir. 1986)(similar).               ______________                 Absent direct evidence of discrimination, to establish a                                         -10-            prima  facie case of age discrimination based on a failure to            hire, the "plaintiff must show that (1) s/he is a member of a            protected class, (2)  s/he applied and was  qualified for the            position    in   question,    (3)   that    despite   his/her            qualifications,  s/he  was  rejected,  and  (4)  that,  after            rejection,  the  position  remained  open  and  the  employer            continued   to   seek   applicants  from   persons   of   the            complainant's qualifications." Woods, 30 F.3d at 259.  When a                                           _____            plaintiff  adduces sufficient evidence  to establish  a prima            facie case,  an inference  of discrimination arises,  and the            burden  shifts to  the employer  to articulate  a legitimate,            nondiscriminatory  reason for  its decision  not to  hire the            plaintiff.  Id.  at  720.14    And  "once  the  employer  has                        ___            proffered  a  legitimate,  nondiscriminatory  reason  for its            adverse employment decision,  the presumption created by  the            ...[plaintiff's] prima facie case disappears, and  the burden            falls back upon the ... [plaintiff] to prove that the reason             advanced by  the employer  for the adverse  employment action            constituted a  mere pretext for unlawful age discrimination."            LeBlanc, 6 F.3d at 842.   "To meet this burden, the  claimant            _______                                            ____________________            14.  "The employer's obligation is simply one of production."            LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir.            _______    _______________________            1993).   That is  to say,  the defendant is  not required  to            persuade the  factfinder that it  was, in fact,  motivated by            the proffered  reason and not  by a discriminatory  one. See,                                                                     ___            e.g., Oliver v.  Digital Equipment Corp.,  846 F.2d 103,  108            ____  ______     _______________________            (1st Cir. 1988); Loeb  v. Textron, Inc., 600 F.2d  1003, 1011                             ____     _____________            (1st Cir. 1979).   The burden of persuasion remains  with the            plaintiff at all times. LeBlanc, id.                                      _______  ___                                         -11-            must  prove both  that the  employer's articulated  reason is                        ____            false,  and that discrimination was the actual reason for its            employment  action." Woods, 30 F.3d  at 260.   Thus, to avoid                                 _____            summary  judgment, the  plaintiff  must  "elucidate  specific            facts which would enable a jury to find that the reason given            was not  only a  sham, but  a sham intended  to cover  up the            employer's real motive: age discrimination."  Medina-Munoz v.                                                          ____________            R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990).            _________________________                 On appeal,  Sack argues that the district court erred in            holding that he was not qualified for the Estate Tax Attorney            position  since the Secretary  conceded that he  was at least            minimally  qualified by  virtue  of his  law  degree and  the            district  court failed  to  address his  contention that  the            point-rating  system  unlawfully  discriminated against  him.            Sack also maintains that the SAQS contain direct  evidence of            discrimination because they award more points for recent than            remote   education  and   experience   and  that   the  DOT's            submissions admitted  as much.  Finally,  Sack reiterates his            contention that the IRS's point-rating system is a subterfuge            to deprive veterans of their veterans preference in violation            of 5 U.S.C.   3311, 3313.15                                            ____________________            15.  Sack also  contends that  he should  be  deemed to  have            exhausted his  administrative remedies  because the time  for            filing a final  agency decision had  elapsed before he  filed            suit.   As it is clear that Sack is not entitled to relief on            the merits,  we need  not address the  jurisdictional issues.            See Norton v. Mathews, 427 U.S. 524, 530-32 (1976).            ___ ______    _______                                         -12-                 At the outset we reject Sack's suggestion that the IRS's            point-rating   system   evinces   direct   evidence   of  age            discrimination  simply  because  it  allows  additional  base            points  to  be  awarded   to  applicants  with  recent  legal            education  or  experience.   Nothing  in  the SAQS  makes  an            applicant's  score contingent upon his or her age.  "The ADEA            'requires the  employer to  ignore an  employee's age ...  it            does  not  specify further  characteristics that  an employer            must also ignore.'"  E.E.O.C. v. Francis W. Parker School, 41                                _________    ________________________            F.3d  1073,  1076  (7th  Cir. 1994)(citation  omitted).    We            further see  nothing  in  any  of  the  DOT's  affidavits  or            decisions    which   constitute    an   admission    of   age            discrimination.16     Thus,   as  direct   evidence  of   age            discrimination is lacking, Sack's case hinges upon whether he            has met his burden under the McDonnell Douglas formula.                                               _________________                 While  the  district  court  held that  Sack  failed  to            establish a prima facie case because he was not qualified for            the  position, the  DOT  conceded  that  Sack  was  at  least            minimally qualified by virtue  of his law degree. It  is also                                            ____________________            16.  While the DOT's Final Decision observed that a policy of            granting  credit  for  recent   graduation  from  law  school            affected  persons predominantly  under forty,  it went  on to            note  that  the  SAQS  also  give  credit  for  recent  legal            experience.  Sack was not eligible for the latter because had            been  out of practice for  several years when  he applied for            the Estate  Tax Attorney position.   Thus, the  DOT concluded            that Sack would not have  been selected even if the SAQS  did            not grant  additional base points for  recent graduation from            law school.   This in  no way   implies an  admission of  age            discrimination.  (App. 106).                                          -13-            undisputed that Sack was within the protected age group, that            he was rejected  despite his qualifications, and that  six of            the eight  persons who were  ultimately hired were  under 40.            This  circuit  does  not  require plaintiffs  to  prove  that            persons outside the  protected age group were  hired in order            to  establish a prima facie case of age discrimination.  See,                                                                     ___            e.g., Sanchez v. Puerto  Rico Oil Co.,  37 F.3d 712, 719  n.7            ____  _______    ____________________            (1st Cir. 1994).  Under these circumstances,  we shall assume            that Sack's  showing was sufficient to raise a presumption of            discrimination  under McDonnell  Douglas.   The  burden  then                                  __________________            shifted  to  the   Secretary  to  articulate   a  legitimate,            nondiscriminatory reason  for the IRS's decision  not to hire            Sack.                   The  Secretary met  this burden  by submitting  evidence            that  the applicants who were hired  were more qualified than            Sack  because  they  had  more current  legal  knowledge,  as            evidenced by their recent legal  education.  Sack was  ranked            below these individuals because  he had not practiced law  in            several years  and thus was ineligible  for additional points            based on recent  legal experience.  Faced with  this showing,            it then became Sack's  burden to prove that the  IRS's point-            rating system  rewarded recent  education or experience  as a            proxy  or  pretext  by   which  to  accomplish  unlawful  age            discrimination.  Sack failed  to make this essential showing.            Recent legal education or  experience, like years of service,                                         -14-            is  analytically distinct from age.  The IRS could reward the            former  without   necessarily   engaging  in   unlawful   age            discrimination. Cf. Hazen Paper Co. v. Biggins, 113 S. Ct. at                            ___ _______________    _______            1707.   To  prove that the  IRS relied  on these  criteria to            accomplish age discrimination, Sack had  to show that the IRS            and/or its employees designed the SAQS to reward recent legal            education  or experience  because  it was  assumed that  this            would eliminate older applicants.  But there  was no evidence            which even suggested that  the SAQS were enacted with  such a            discriminatory motive.  Rather, the record indicates that the            SAQS provided that  additional base points could be  added to            the scores of recent  law school graduates to enable  them to            compete with the scores of practicing attorneys who would  be            eligible for additional base  points due to their experience,            points  for which  Sack  was ineligible  because  he had  not            practiced law  in several  years.   Thus, rather than  giving            recent law school graduates an  unfair edge, the SAQS  appear            to  be designed to  level the playing  field.  In  any event,            neither  recent law  school  graduation nor  recent years  of            experience  are so correlated with age as to suggest that the            IRS  had   the  discriminatory  motive  critical   to  Sack's            disparate treatment claim.                 To  be sure,  it  may be  more likely  that most  of the            applicants eligible  for additional base  points because they            recently  completed  law school  will  be under  forty.   But                                         -15-            "decisions  based on  criteria  which merely  tend to  affect            workers over  the age  of forty more  adversely than  workers            under forty  are not [necessarily] prohibited."   E.E.O.C. v.                                                              ________            Francis W. Parker  School, 41 F.3d  at 1077.   The fact  that            _________________________            additional  base  points  may  be awarded  for  recent  legal            education does not indicate  that the SAQS are a  pretext for            age discrimination,  for the SAQS also  allow additional base            points  for recent legal  experience and admission  to a bar.            These  criteria apply to individuals who cannot be said to be            more  likely to  be under forty.   The  fact that  two of the            applicants  who  were  hired  were older  than  Sack  further            undermines Sack's contention that his rejection resulted from            age   discrimination.17      Thus,  the   totality   of   the            circumstances compels us to reject Sack's contention that the            SAQS  use recent legal education or experience as a proxy for            age.   Compare Massarsky  v. General  Motors Corp., 706  F.2d                   _______ _________     _____________________            111,   119   (3rd  Cir.),   cert.   denied,   464  U.S.   937                                        _____   ______            (1983)(similar).    Accordingly, we  conclude  that Sack  has                                            ____________________            17.  While  we do not  require plaintiffs to  prove that only            persons outside the  protected age group  were hired to  make            out  a prima  facie  case,  we  have  observed  that,  "as  a                   _____  _____            practical matter, it may be unlikely that a plaintiff who was            not supplanted by  a younger  individual will  succeed in  an            ADEA suit...."  Freeman v. Package Machinery  Corp., 865 F.2d                            _______    ________________________            1331, 1335 n.2 (1st  Cir. 1988).  The evidence  here strongly            militates  against Sack.                                         -16-            failed to make establish a case of age discrimination through            disparate treatment.18                  We also agree with  the district court's conclusion that            Sack  was   not  entitled  to  relief   under  the  Veterans'            Preference  Act.   Nothing in  any of  the statutes  Sack has            cited gives him a federal cause of  action, and we decline to            imply  one where the record  discloses that Sack received the            preference  he was entitled to when the IRS added five points            to  his score under 5 U.S.C.  3309.  The Veterans' Preference            Act does not "cloak veterans with any 'penumbral rights;' its            provisions  are necessarily  specific, and for  plaintiffs to            benefit  therefrom they  must show  themselves to  be clearly            within the intended ambit of... [its] provisions." Crowley v.                                                               _______            United   States,  527   F.2d   1176,   1182-83  (Ct.   Claims            _______________            1975)(citation  omitted).   Sack  has failed  to show  that 5            U.S.C.    3309, 3311, or 3313  required the IRS  to award him            fifteen additional points.   Accordingly, the judgment of the            district court is affirmed.                              ________                                                                                                           ____________________            18.  As  Sack   has  expressly  disclaimed  reliance  on  the            disparate  impact  theory, we  confine  our  analysis to  the            disparate treatment  test.  However,  we note that  the DOT's            conclusion that Sack also failed to prove disparate impact is            supported by the record.                                          -17-                                         -18-
