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Ficken v. Rice

March 29, 2007


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Docket Nos.: 32, 37, 47


This matter is before the Court on defendant ACT, Inc.'s motion to dismiss.*fn1 For the reasons stated below, the motion will be granted.


ACT, Inc. ("ACT") "is an independent, not-for-profit organization that provides research, information and assessment services." Statement of Points and Authorities in Support of Defendant ACT, Inc.'s Motion to Dismiss Complaint ("ACT Mot.") at 2. It is "the organization that administers the Foreign Service Written Examination, in conjunction with the Program Assistant in [the State Department's Office of Recruitment, Examinations, and Employment], [and] schedule[s] the candidates who have passed for the Oral Assessment." Memorandum in Support of Defendant Rice's Motion to Dismiss or, in the Alternative, for Summary Judgment ("State Dep't Mot."), Declaration of Arthur F. Salvaterra ¶ 5.

Ficken, then 57 years old, took the Foreign Service Written Examination ("FSWE") for the first time in November 2000. Complaint ("Compl.") ¶ 11. The FSWE "consist[ed] of three sections that are multiple choice questions and one or more sections which require the candidate to write a timed essay upon one of several choices of topics." Id. ¶ 10. According to Ficken, the Biographic Information section of the FSWE "was particularly ill timed," such that he was "not [] able to finish approximately the last nine or ten questions when time was called." Id. ¶ 12. ACT allegedly "placed [Ficken's total] score a few points below the minimum score of 158 that was necessary to receive a passing grade with the result that neither of his essays written during the test would be graded and his application for employment with the Foreign Service could not proceed further." Id. ¶ 13.

Ficken filed a discrimination complaint against the State Department alleging that the November 2000 FWSE was "inherently age discriminatory." Compl., ¶ 14. In Ficken's view, an older person with "a greater number of life experiences upon which to draw" faced greater time constraints than a younger person in completing the Biographic Information section of the test. Id. Ficken and the State Department entered into an Informal Resolution of this discrimination claim, pursuant to which the State Department allowed Ficken to take the FWSE's Biographical Information section again in August 2001. State Dep't Mot., Ex. 1 (August 1, 2001 Informal Resolution). In relevant part, the Informal Resolution provided:

a. Mr. Ficken will be provided with his original test booklet and answer sheet and allowed 30 minutes to complete the portions of the [Biographical Information section] that he was unable to complete when he originally took the FSWE on November 29, 2000.

b. Subsequent to Mr. Ficken's completion of the [Biographical Information section] on August 2, 2001, [that section] will be re-scored, and his total score on the multiple-choice section of the FSWE will be recalculated.

c. If Mr. Ficken's total score is at or above the passing score for the multiple-choice section of the FSWE, Mr. Ficken's essay from the November 29, 2000 FSWE will be scored on an expedited basis.

Id. at 1-2. Only if Ficken passed the FSWE would he have been scheduled for the Oral Assessment. Id. at 2. Although Ficken achieved a passing total score, 164 points, on the multiple-choice section, his "essay was not given a passing score." Compl. ¶ 15.

Plaintiffs allege that Ficken's "application for employment in the State Department's Foreign Service was terminated in January to August, 2001 because of his age (inability to finish those portions of the FSWE [which test was developed by, timed by and graded by ACT] in the time allotted)[.]" Compl. ¶ 183 (parentheses and brackets in original). In addition, plaintiffs allege that ACT "was under an implied contract to ensure that Ficken's essay was graded in accordance with the same standard that would apply to grading other FSWE essays when they would arrive in bulk at ACT's headquarters after the annual FSWE testing cycle." Id. ¶ 189. They claim that ACT "breached that implied contract . . . by applying a more rigorous grading standard to the grading of Ficken's essay for the year 2000 FSWE exam out of retaliation for his EEO complaint." Id. ¶ 190.

Lastly, plaintiff Ivanof alleges that ACT caused him to suffer emotional distress because, had "Ficken not suffered discrimination, retaliation and breaches of implied contract and duty . . . and had he been able to receive an appointment in the Foreign Service, Plaintiff Ivanof would have been able to attend an American based school." Id. ΒΆ 195. Because Ivanof attended a Romanian school for the 2001-02 school year instead of the American International School in Bucharest, plaintiffs allege that Ivanof "learned nothing, due to not knowing the language of instruction," and "suffered repeated and continual ...

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