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NERENSTONE v. BARR

February 18, 1992

MARC A. NERENSTONE, Plaintiff,
v.
WILLIAM H. BARR, Attorney General of the United States, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 Findings of Fact and Conclusions of Law

 This Court has conducted a three day bench trial concerning Plaintiff's allegation that his employer, the Department of Justice ("DOJ"), discriminated against him in violation of the Age Discrimination in Employment Act ("ADEA"). See 29 U.S.C. § 621, et seq. Specifically, Plaintiff claims that he did not receive a position as an attorney-adviser in Litigation Assistance Support Services ("LASS") because of his age. Because I find that the Plaintiff has failed prove his case under the ADEA, judgment will be entered in favor of the Defendant.

 FINDINGS OF FACT

 Plaintiff in this case is Marc Nerenstone, an employee of the Department of Justice's Community Relations Service at the GS-14 step-10 level. The Defendant is William Barr, who is being sued in his capacity as the United States Attorney General. This case concerns the events surrounding the DOJ's nonselection of Mr. Nerenstone to either of two openings in its LASS department in July 1985. Those positions were at the GS-11/12 level. Two attorneys younger than 40 years old were hired for the positions. Mr. Nerenstone, who was 56 at the time the positions were filled, claims that his nonselection was caused by discrimination against him on the basis of his age.

 Mr. Nerenstone has been a Program Evaluation and Development Officer for the DOJ's Community Relations Service ("CRS") since 1970. In that job his primary tasks are designing computer systems and running statistical analyses to aid in agency planning and budgeting. His performance evaluations show that, in this capacity, Plaintiff has done outstanding work for the Department of Justice and has been a loyal government employee for over 20 years. During his employment at DOJ, Plaintiff also attended George Mason law school at night. He claims he graduated at the top of his class in 1983. After his graduation, Plaintiff wanted to practice law. He made several unsuccessful attempts to get a position as a DOJ attorney. *fn1" In July, 1985 Plaintiff applied through the experienced attorney program for a position as an attorney/adviser with LASS.

 The LASS positions available at that time were at the GS-11 and GS-12 levels and would have involved Plaintiff taking a substantial reduction in pay from his current GS-14 position. The duties of the LASS positions were to design and implement computerized support systems for Department litigation. This involved a substantial amount of time working with DOJ staff attorneys who might be unfamiliar with and therefore unreceptive to the idea of working with computers. A key component of the job was the ability to "sell" whatever system was developed to potentially skeptical consumers.

 The interpersonal skills of LASS employees were crucial for another reason. LASS was organized to be self supporting. That meant that LASS was to recover its costs from those to whom it provided its litigation support services. The ability to have its services accepted was thus very important to the continued viability of the program.

 Plaintiff filled out the standard government employment application, Standard Form 171 and sent it to LASS. The selecting official at LASS was Mark Miller, the Chief of LASS from 1983 until early 1988. Miller, who was 49 at the time of the trial, testified that he received fifty applications for the two jobs in question. Miller stated that when he first saw Plaintiff's application he was interested in him because he had the right kind of technical background. Miller noticed that Nerenstone had attended the same technical high school in New York city as had Miller, and had graduated in an earlier class. Based upon these facts, Miller was ready to look more closely at Nerenstone for the job.

 Before he did so, however, Miller consulted Kathleen Smith, one of two attorney/advisers on his staff at the time. Miller went to Smith because he noticed that Nerenstone worked at CRS, and he knew that Smith had also worked there previously. Smith was a valued staff person at LASS and Miller respected her judgment. Smith, who testified at trial, was vehemently opposed to hiring Nerenstone. She told Miller that Nerenstone had been "abrasive" and "obnoxious" while she worked with him at CRS. She stated, in fact, that she would leave the LASS staff before she would work with Nerenstone again. Smith referred Miller to Patricia Maslinoff, the other LASS staff person and Don Hunt a former colleague of Plaintiff, to corroborate her assessment of Mr. Nerenstone.

 Miller testified that he was surprised that Smith reacted so strongly against Nerenstone. She had impressed him as a person who was friendly and got along with almost everyone. Miller decided, therefore, to speak with Maslinoff and Hunt regarding Mr. Nerenstone. Both Maslinoff and Hunt confirmed Smith's view that Nerenstone was abrasive.

 Maslinoff, a graduate of the University of Chicago law school, told Miller that on the one occasion she had met Nerenstone, he had been "rude" to her. Maslinoff testified that on that occasion she was working when Smith introduced her to Nerenstone. Nerenstone had been passing near the LASS offices when he came across his former colleague Smith, who offered to show him around her office. In so doing, they bumped into Maslinoff who explained briefly how she was using the computer in the performance of her job. Within minutes of meeting her, Nerenstone began criticizing what Maslinoff was doing. He said she was using the wrong software and hardware and suggested a system which she could use to better do her job. Maslinoff was totally flustered by Nerenstone's actions and attitude. She simply did not want to work with someone who was so abrupt and offensive. When she discussed Nerenstone with her supervisor, Miller, she told him that based upon this encounter, she did not believe that Nerenstone had the requisite interpersonal skills for the LASS jobs. Miller then approached Don Hunt, who dealt with Nerenstone when Hunt was on the Litigation and Information Systems Staff. ("LISS") Hunt confirmed that Nerenstone was "abrasive" and a difficult person to work with.

 Based on the information Miller obtained from Smith, Maslinoff and Hunt he decided that Plaintiff was not the right person for the vacant LASS positions. When Plaintiff telephoned Miller to inquire into the status of his application, Miller told him that he would not be interviewed for a position. Plaintiff asked for the reason, he had been rejected, and Miller told him that he "was too senior" because LASS was "looking for entry level people." At that time Nerenstone was not told of the other reason he had been rejected, namely that he was difficult to work with and that two highly valued employees on the LASS staff did not want to work with him.

 In telling Nerenstone he was too senior for the job, Miller said he was referring to the fact that Plaintiff's current job was at the GS-14 step 10 level and the available LASS positions were at the GS-11/12 levels. In his conversations with Nerenstone, Miller did not want to reveal to him the adverse comments about his abrasive personality which Miller had received from Smith, Maslinoff and Hunt. This was because Miller wanted both to protect his sources and to spare ...


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