The opinion of the court was delivered by: Robert L. Wilkins United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
After considering the undisputed facts, as well as the testimony of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following findings of fact and conclusions of law.
Plaintiff Barbara Stern Gold ("Gold" or "Plaintiff") alleges that she was discriminated against in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., when she was not selected for the position of Deputy Director, Compliance and Registration, Division of Clearing and Intermediary Oversight at the Commodity Futures Trading Commission, on February 20, 2008.
Based on a review of the evidence presented at trial in December 2011, and after considering the testimony of the witnesses, the exhibits, and the arguments of the parties, the Court makes the following findings of fact and conclusions of law. Consistent with these findings and conclusions the Court will enter judgment in favor of defendant.
1. In 2008, Plaintiff Barbara Stern Gold was employed as an Associate Director with the Commodity Futures Trading Commission ("CFTC"), in the Division of Clearing and Intermediary Oversight ("DCIO"). She brought this action claiming that the selection of William Penner, who was seventeen years younger than Gold at the time, for the position of DCIO Deputy Director (for which plaintiff had applied) violated the ADEA. This selection occurred on February 20, 2008.
2. The DCIO is a program office that reports to the CFTC. During the relevant time period (2007 - 2008), the Director of the DCIO was Ananda Radhakrishnan. Radhakrishnan's direct reports during this time were his special counsel, Natalie Markman, and his three Deputy Directors, Thomas Smith, John Lawton, and Larry Patent.
3. In 2007, Patent was the head of the Compliance and Registration ("C&R") Section of DCIO. Gold was his Associate Director.
4. On November 8, 2007, Patent announced his intention to retire on January 4, 2008.
5. On December 10, 2007, Patent submitted his "Letter to My Successor" to Radhakrishnan. The letter highlighted certain items that Patent felt his successor should be cognizant of at the beginning of his or her tenure as a Deputy Director. Among other things, Patent's letter detailed the areas of expertise of the professional staff in the C&R Section. Regarding Gold, Patent noted that "[a]lthough Barbara's principal concentration has been in the managed money area, I have every confidence that she can handle any aspect of the activities of the Compliance and Registration Section, whether programmatic or administrative."
6. Patent retired from the CFTC on January 3, 2008. Radhakrishnan was not required to immediately fill the vacancy with an Acting Deputy Director, as he could have assumed the duties of the Deputy Director himself. Nonetheless, Radhakrishnan decided to appoint Gold to the position of Acting Deputy Director of the C&R Section. Gold held this position from January 4, 2008 to March 30, 2008. As Acting Deputy Director, Gold reported directly to Radhakrishnan.
7. Shortly after learning of Patent's upcoming retirement, Radhakrishnan reached out to potential candidates outside of DCIO to fill the position. Radhakrishnan contacted Phyllis Cela, Chief Counsel, Division of Enforcement within the CFTC. Cela told Radhakrishnan that she was not interested in the Deputy Director position, but suggested to Radhakrishnan that William Penner, a former CFTC employee who had worked for Cela previously and whom she regarded highly, would be an excellent candidate for the position.
8. Radhakrishnan also contacted Paul Architzel, a former CFTC employee, about the position.
9. On November 14, 2007, Cela contacted Penner and informed him that she had told Radhakrishnan that he could be interested in the Deputy Director position. She also gave Radhakrishnan's contact information to Penner and urged him to call Radhakrishnan the next day.
10. On November 15, 2007, Penner called Radhakrishnan and discussed the details of the upcoming Deputy Director vacancy and his qualifications for the position. Penner also sent his resume to Radhakrishnan via email on the same day. Penner also had contact with Markman during November of 2007.
11. Radhakrishnan made several false or contradictory statements under oath concerning his contact with Penner prior to the issuance of the vacancy announcement, including that he did not know or could not recall how Penner learned of the vacancy and whether he had any contact with Penner prior to Penner's formal interview in February 2008. However, it is clear from contemporaneous emails between Penner, Cela, and Radhakrishnan that Penner learned about the vacancy from Cela and that Penner had substantive contact with Radhakrishnan at least a month before the vacancy was posted.
12. On December 14, 2007, the CFTC issued the vacancy announcement for the Deputy Director position, with applications to be submitted by January 14, 2008. The announcement required an applicant to have a law degree and "[a]t least one year of [high level legal] experience . . . at a level of responsibility and difficulty equivalent to that of positions at the next lower grade level in the Federal service (e.g., CT-15 or GS-15) and clearly demonstrate the knowledge, skill, and ability to perform the duties of this position." The announcement listed four criteria on which the applicants were to be evaluated: leadership (with six sub-criteria); substantive knowledge (with three sub-criteria); strategic analytical skills (with three sub-criteria); and communication (with five sub-criteria). The announcement further stated that for a candidate's application to receive "full consideration," the application must address each of the criteria in a separate statement attached to and supplementing their resume.
13. On January 8, 2008, Penner submitted his application consisting of a cover letter and resume. Penner did not specifically address the knowledge, skill and abilities requirement ("KSAs") as required by the job announcement. Nor did his application provide references.
14. Penner testified that the Deputy Director position at the CFTC was the only job he applied for between November 2007 and February 2008.
15. Another applicant, Gretchen Lowe, Associate Chief Counsel, Division of Enforcement, submitted an application packet similar to Penner's. She did not specifically address the KSAs or provide references. Her two-page application consisted of a cover letter and resume. Gold submitted an application consisting of a three-page cover letter, a nine-page statement addressing each of the KSAs and sub-criteria, two letters of recommendation, and her resume.
16. A rating panel was convened to screen the applications. The Office of Human Resources and Radhakrishnan selected Cela, Lawton, and Smith to serve on the review panel because they were considered subject matter experts. The panel reviewed the applications and put each candidate in one of four ...