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Ivan Ficken v. Hillary Rodham Clinton

January 24, 2012

IVAN FICKEN, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, SECRETARY OF STATE, DEFENDANT.



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

Re Document No.: 113

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

The pro se plaintiff commenced this action against the Secretary of State based on his non-selection for a position with the Foreign Service, and asserts 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 dismissed the bulk of the plaintiff's claims, including his disparate treatment claim. At this juncture, the only remaining claim is the plaintiff's disparate impact claim. More specifically, the plaintiff alleges that the defendant has designed the oral portion of the Foreign Service Officer examination to favor younger candidates, resulting in an adverse disparate impact on older candidates. Because a reasonable juror could not conclude based on the evidence presented that the Foreign Service Officer examination has a disproportionate adverse effect on older candidates, the court grants the defendant's motion.

II. FACTUAL AND PROCEDURAL BACKGROUND*fn1

In November 2000, the plaintiff applied to be a Foreign Service Officer with the Department of State. Compl. ¶ 11. The initial step in the application process at that time required applicants to pass the Foreign Service Written Exam ("FSWE"), which included both multiple-choice and essay questions. Id. ¶ 10. Only those candidates that 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 2000, the plaintiff, at the age of 57, first took the FSWE and failed. Id. ¶¶ 11, 16. At the time, he believed that the sections "were timed extremely tightly" and was unable to complete the exam. Id. ¶ 12. After taking the FSWE again in 2001, the plaintiff, at the age of 58, passed both the multiple-choice and essay portions and later underwent the Oral Assessment in April 2002. Def.'s 1st Mot. for Summ. J., Ex. 2 ¶¶ 26.

The 2002 Oral Assessment included three modules: "the group exercise, the case management study, and a structured interview." Id., Ex. 3 ¶ 6. Candidates received the results of the Oral Assessment during an exit interview. Id. ¶ 11. The passing score was 5.25 for each module of the Oral Assessment. Id. ¶ 7. Any applicant who scored below the passing level was dismissed and could not retake the Oral Assessment until the applicant had again passed the written portion of the FSWE. Id., Ex. 8 at 4. The plaintiff received failing scores for each module, and the defendant subsequently terminated the plaintiff's application process. Id., Ex. 9.

In July 2004, the plaintiff filed the instant suit. See generally Compl. According to the plaintiff, "the Oral Assessment is Age Discriminatory by design" because "[i]t was specifically designed to cancel out any experience which an older person might have and . . . [the State Department refuses] to accept any verification of competence or experience which was not specifically requested by their paperwork or delved into by their questions during the structured interview phase of the Oral Assessment." Id. ¶ 51; see also Pl.'s Opp'n to Def.'s 1st Mot. for Summ. J. at 29.

On June 30, 2010, the defendant moved for summary judgment as to the plaintiff's disparate treatment claim. See generally Def.'s 1st Mot. for Summ. J. Although the court granted the defendant's motion with respect to the plaintiff's disparate treatment claim, the court noted that the plaintiff had also alleged a disparate impact claim. See Mem. Op. (Mar. 25, 2011) at 2 n.1. This disparate impact claim was based on allegations that the Oral Assessment was designed to have a disproportionate impact on older candidates. See Compl. ¶ 51. Because the defendant's motion failed to address the disparate impact claim, the court granted leave for parties to file dispositive motions as this unaddressed claim. See Mem. Op. (Mar. 25, 2011) at 2 n.1.

The defendant has now filed a second motion for summary judgment to address the plaintiff's disparate impact claim. See generally Def.'s 2d Mot. for Summ. J. The plaintiff opposes this motion.*fn2 See generally Pl.'s Opp'n to Def.'s 2d Mot. for Summ. J. With that motion now ripe for adjudication, the court turns to the parties' arguments and the applicable legal standards.

III. ANALYSIS

A. Legal Standard for a Motion for Summary Judgment

Summary judgment is appropriate when the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), cert. denied, 484 U.S. 1066 (1988); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995), aff'd, 132 F.3d 1481 (1997). To determine which facts are "material," a court must turn to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine dispute" exists when the resolution of a ...


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