job. It is conceded that both persons selected for the vacancies at LASS were under 40. Thus. Plaintiff has established all the elements of a prima facie case under the ADEA.
Defendant, however, has articulated a legitimate, non-discriminatory reason for Plaintiff's nonselection. "[A] decision . . . not to hire a person because of his or her disruptive or uncooperative behavior is proper . . . because it relies on a legitimate, nondiscriminatory reason." Chalk v. Secretary of Labor, 184 App. D.C. 189, 565 F.2d 764, 768 (D.C. Cir. 1977) (citations omitted). Plaintiff was not hired because the selecting official believed that he did not have the proper temperament for the LASS job. In Chalk the court found the plaintiff's "abusive manner" to be a legitimate reason for not hiring him as a writer/editor position at the Department of Labor. Id. In this case it was Plaintiff's abrasive personality which caused Miller not to hire him.
Indeed, Plaintiff's abrasive personality presents an even stronger case for nonselection than it did in Chalk. Good interpersonal skills were an integral component of the job to which Plaintiff applied. Plaintiff was not applying to be a writer/editor, or even a computer programer. Plaintiff was applying for a job which entailed convincing litigating attorneys to use LASS's computer support services. The ability to serve potential "customers" was crucial to the office's success and indeed its survival. Miller concluded that Plaintiff simply did not possess the requisite interpersonal skills for the vacant positions. Unlike Chalk, Miller did not base his opinion of Plaintiff on a single outburst. Rather, he first sought the opinion of Ms. Smith, who had worked closely with Plaintiff over a long period of time. Even after he received her opinion, he consulted Maslinoff and Hunt, both of whom corroborated the opinion that Nerenstone was difficult to work with and abrasive.
Plaintiff has not presented evidence that proves Defendant's reasons for not hiring Plaintiff were pretextual. The Court credits Mr. Miller's testimony that his statement that Plaintiff was "too senior" had nothing to do with Plaintiff's age. Miller was referring to Plaintiff's GS-14 grade and his doubt as to whether Plaintiff would be willing to accept the pay cut which taking the GS-11/12 LASS position would entail. This coupled with the poor reviews Nerenstone had received from Smith, Maslinoff and Hunt makes it clear that Plaintiff's not being hired had nothing to do with his age. It was his negative personality which deprived him of the opportunity to be hired.
This Court's own observation of Mr. Nerenstone's demeanor at trial and at pretrial hearings further showed Defendant's reasons not to be pretextual. Plaintiff appeared to be an intelligent person. However, he was overly aggressive and abrasive. At times he would interrupt his counsel's presentation in a rude manner. At other times he would abruptly leave and return to the courtroom without any explanation.
Mr. Nerenstone's response to the allegations concerning his encounter with Maslinoff are also illustrative of this point. Nerenstone insisted that his comments about Maslinoff using the wrong hardware and software were correct. That response missed the point. Even if Maslinoff was using the incorrect system, it really was not Plaintiff's place to tell her so, especially in the rude way he did. He was a guest in her office. He had only known her for a few minutes when he began to tell her that she was not doing her job correctly.
Nerenstone does not dispute Maslinoff's testimony. Rather than admitting he had acted improperly, he tried to justify his actions by proving that his criticism was well founded. He clearly needs to take a Dale Carnegie course in how to get along with others. It is clear that Plaintiff's attitude, if displayed towards an attorney about a pending litigation, might well cause the attorney not to employ LASS's computer services. Against this background, it was legitimate and nonpretextual for Defendant not to hire Plaintiff based on his negative personality.
Even though Plaintiff's legal claim lacks merit the Court does not understand why the DOJ cannot find some legal position for Plaintiff, who has been a twenty year DOJ employee at the very senior GS-14 level. His work performance has been more than satisfactory, and he has been a hardworking and loyal employee. While at the DOJ, Nerenstone attended law school at night and did well. Based upon his interest in practicing law, Plaintiff claims he is willing to take a substantial reduction in pay in order to obtain a legal position. It would seem that an organization as large as the DOJ could find some legal position for such a longtime employee who had taken the commendable step of attending law school at night. Not all legal jobs require a pleasant personality. Some lawyers have proven to be quite successful despite their abrasiveness and rudeness -- or perhaps because of such traits. A visit to this Judge's courtroom on any given day would confirm this observation. Indeed, the way a good number of trial attorneys cross examine witnesses would make one think that how to be rude and disrespectful were core elements of every trial advocacy course.
The worst result that could befall the DOJ would be a savings of thousands of dollars a year by the DOJ as a result of the pay reduction Plaintiff would probably have to take to obtain an entry level legal position. With thousands of legal jobs at the DOJ there must be one "pit bull" legal position which this Plaintiff could occupy. While such a course makes sense to the Court, it is not mandated by the ADEA.
Judgment will be entered for the Defendant. A separate order accompanies this opinion.
DATE: February 18, 1992
United States District Court
ORDER - February 19, 1992, Filed
Upon consideration of the entire record in the above-captioned matter, it is this 18 day of February, 1992 hereby
ORDERED that judgment be entered in favor of the Defendant and that this case be dismissed with prejudice.
United States District Court