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Ivan Ficken v. Hillary Rodham Clinton

March 24, 2011

IVAN FICKEN, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, SECRETARY OF THE UNITED STATES DEPARTMENT OF STATE ET AL., DEFENDANT.



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

: Re Document No.: 102

MEMORANDUM OPINION

GRANTING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff commenced this action against the Department of State based on his non-selection for a position with the Foreign Service, asserting various claims of employment discrimination including violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. The court previously granted the defendant's motion to dismiss the majority of the plaintiff's claims. At this juncture, the only claims remaining before the court are the plaintiff's claims of disparate impact and disparate treatment based on age. More specifically, the plaintiff claims that the Oral Assessment portion of the Foreign Service Exam ("the Oral Assessment"), which the defendant uses to identify qualified candidates to serve as Foreign Service Officers, is biased against older candidates.

The matter is now before the court on the defendant's motion for partial summary judgment as to the plaintiff's disparate treatment claim.*fn1 Because the plaintiff has failed to offer sufficient evidence to rebut the defendant's legitimate, non-discriminatory reason for his non-selection, the court grants the defendant's motion.

II. FACTUAL & PROCEDURAL BACKGROUND*fn2

In November 2000, the plaintiff applied to be a Foreign Service Officer. Compl. ¶ 11. The initial step in the application process required applicants to pass the Foreign Service Written Exam ("FSWE"), which included both multiple-choice and essay questions. Id. ¶ 10. Only those candidates who received a passing score on both the multiple-choice and essay questions continued to the third stage of the hiring process, the Oral Assessment. Id.

In November 2000, at the age of fifty-seven, the plaintiff first took the FSWE for the first time. Id. ¶ 11. Although he received a passing score on the multiple-choice portion of the exam, id. ¶ 15, his "essay was not given a passing score," id. ¶ 16. In August 2001, the plaintiff took the FSWE again, this time achieving a passing score on both the multiple-choice and essay portions of the exam. Id. ¶¶ 20, 21.

Accordingly, in April 2002, the plaintiff underwent the Oral Assessment component of the exam. Def.'s Mot., Ex. 1 ("Pl.'s Dep.") at 14. "The Oral Assessment is performed on one day, in three stages." Def.'s Mot., Ex. 6 (Decl. of Russell Keeton, Examiner in the Office of Recruitment, Examinations, and Employment at the U.S. Department of State ("Keeton Decl."))

¶ 6. "Four Examiners . . . evaluate and rate [each] candidate[] from 1-7 in thirteen dimensions in each of three modules." Id., Ex. 3 (Decl. of Arthur F. Salvaterra, Director of the Board of Examiners for the Foreign Service, U.S. Department of State ("Salvaterra Decl.")) ¶ 7. These three modules are "the group exercise, the case management study, and a structured interview." Id. ¶ 6. The modules are described as follows:

The Group Exercise consists of a maximum of six candidates who are required to present their individual projects and engage in a discussion and a consensus building effort that results in a collective action memo to the Ambassador. The characteristics that Examiners are looking for in this exercise are: oral communication, objectivity and integrity, ability to work with others, information integration and analysis, planning and organization, judgment, initiative and leadership, and composure. The Case Management Study presents the candidate with the challenge of reading through numerous documents, sifting out what is important, and writing a solution to a management problem. The characteristics that Examiners look for in this exercise are: information integration and analysis, judgment, resourcefulness, written communication, and quantitative analysis. The Structured Interview is the portion of the examination in which two examiners interview the candidate. The candidate has the opportunity to talk about [himself] and to relat[e] past experiences to the Foreign Service and to solv[e] problems in a Foreign Service setting. The characteristics tested here are basically similar to those tested in the previous two exercises.

Id. ¶¶ 8-10.

Candidates receive the results of the Oral Assessment during an exit interview. Id. ¶ 11. The passing score is 5.25 out of a possible score of 7 for each module of the Oral Assessment; the lowest available score is a 1. Id. ¶ 7. "The candidacy of anyone whose score is below the passing level will be terminated and may not be considered ...


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