                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

IVAN FICKEN,                                  :
                                              :
               Plaintiff,                     :      Civil Action No.:       04-1132 (RMU)
                                              :
               v.                             :      Re Document No.:        102
                                              :
HILLARY RODHAM CLINTON,                       :
Secretary of the United States                :
Department of State et al.,                   :
                                              :
               Defendant.                     :

                                 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. 1 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 2

       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,
1
       The defendant styles its motion as a motion for summary judgment. See generally Def.’s Mot. In
       its motion, however, the defendant only addresses the plaintiff’s disparate treatment claim. See
       generally id. Although the plaintiff’s complaint does not explicitly set forth a disparate impact
       claim, the plaintiff’s factual allegations make clear that he believes that the Oral Assessment is
       designed to have a disproportionate adverse impact on candidates based on their age. See Compl.
       ¶ 51 (asserting that 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”); see also
       Ricci v. DeStafano, 129 S. Ct. 2658, 2672-73 (2009) (observing that a plaintiff seeking to
       establish a prima facie case of disparate impact must show that a facially neutral employment
       policy has a disproportionately adverse effect on a protected class of people (internal citations
       omitted)). Indeed, the defendant’s own submissions suggest that it was aware that the plaintiff
       had raised a disparate impact claim. See Def.’s Mot., Ex. 3 (Decl. of Arthur F. Salvaterra,
       Director of the Board of Examiners for the Foreign Service, U.S. Department of State) ¶ 12
       (asserting that “[t]he oral assessment does not have a disparate impact on any group of
       individuals, especially those over the age of 40” (emphasis added)). Because the factual
       allegations that the plaintiff assert were sufficient to put the defendant on notice as to such a
       claim, the court construes the plaintiff’s complaint so as to include a disparate impact claim.
       Thus, the court will treat the defendant’s motion as a motion for partial summary judgment and
       grant leave to the parties to file motions for summary judgment with regard the plaintiff’s
       disparate impact claim.
2
       The factual background of this case was discussed in greater detail in the court’s previous
       memorandum opinion. See Mem. Op. (Jan. 17, 2006). The relevant facts are repeated here for
       convenience.


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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.


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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 again until the candidate has passed a

new written examination.” Def.’s Mot., Ex. 8 at 13.

       At the time the plaintiff underwent the Oral Assessment, the candidates were divided into

two groups for the Group Exercise module. Compl. ¶ 29. Each member “received a written

explanation of a project . . . [on] which . . . the candidate was supposed to brief the other

members of the group[,] followed by an advocacy stage during which the candidate [was]

supposed to advocate the full funding of [his] project.” Id. The advocacy stage was then

followed by “a negotiation phase during which limited funding constraints imposed restrictions

upon which projects could be totally or partially funded.” Id. The plaintiff’s project involved

“providing ‘Human Rights sensitivity training’ for senior military officials in an underdeveloped

country who were primarily responsible for the abuses which the country had in the area of

Human Rights.” Id. According to the plaintiff, his “26 years experience . . . in the Naval

Reserve which included many joint exercises with military personnel from other countries . . .

has proven . . . beyond any doubt that a foreign military official . . . will view a temporary duty

assignment in the U.S. . . . as merely an opportunity to buy all the consumer goods at the local

military exchange that he and his family have dreamed about for decades, with the so-called

‘training’ that he is being sent to, having no significance or impact on him whatsoever.” Id. The

plaintiff received “a particularly low grade in the group exercise,” and he himself attributes the

low score to “his failure to effectively advocate for a project which he was given (and which his


                                                  4
many years of experience in the real world told him, beyond any doubt, would be a waste of

money).” Id. ¶ 30.

       During the Structured Interview module, the plaintiff was asked about his work history

because “the statement of work history covering [the plaintiff’s prior] ten years was blank.” Id. ¶

31. The plaintiff explained “that it was due to having lost his job with the [Small Business

Administration] due to illegal retaliation from one office director against whom the plaintiff had

filed multiple EEO and retaliation complaints.” Id. The plaintiff speculated that his lack of work

history for the prior 10 years had been “viewed negatively,” while “no such negative perception

would be attributable to a recent (and far younger) college graduate who . . . might also have a

‘blank’ work history for the last ten years.” Id.

       The plaintiff received the following failing scores: 3.6 for the Group Exercise, 4.2 for the

Case Management Study, and 4.2 for the Structured Interview, for a total overall score of 4.

Def.’s Mem., Ex. 9. Because his scores fell below the passing score for each module, the

Department of State terminated the plaintiff’s candidacy. Id.

       The plaintiff then filed an EEO complaint with the Department of State, alleging, inter

alia, that his failure to pass the Oral Assessment was due to age discrimination. Def.’s Mot., Ex.

2. The plaintiff subsequently filed this suit, asserting that “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.” Compl. ¶ 35.




                                                    5
       In April 2005, the defendant moved to dismiss, or, in the alternative, for summary

judgment. See generally Def.’s Mot. to Dismiss or for Summ. J. (“Def.’s Mot.”). On January

17, 2006, the court granted the defendant’s motion in part, resolving all but the plaintiff’s age

discrimination claims with respect to the 2002 Oral Assessment. See generally Mem. Op. (Jan.

17, 2006).

       The defendant has now filed a motion for partial summary judgment on the plaintiff’s

remaining disparate treatment age discrimination claim. See generally Def.’s Mot. With that

motion 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);

Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which facts are

“material,” a court must look to the substantive law on which each claim rests. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute” is one whose resolution

could establish an element of a claim or defense and, therefore, affect the outcome of the action.

Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.

       In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor and accept the nonmoving party’s evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere



                                                 6
existence of a scintilla of evidence” in support of its position. Id. at 252. To prevail on a motion

for summary judgment, the moving party must show that the nonmoving party “fail[ed] to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. By pointing to

the absence of evidence proffered by the nonmoving party, a moving party may succeed on

summary judgment. Id.

       The nonmoving party may defeat summary judgment through factual representations

made in a sworn affidavit if he “support[s] his allegations . . . with facts in the record,” Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999) (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir.

1993)), or provides “direct testimonial evidence,” Arrington v. United States, 473 F.3d 329, 338

(D.C. Cir. 2006). Indeed, for the court to accept anything less “would defeat the central purpose

of the summary judgment device, which is to weed out those cases insufficiently meritorious to

warrant the expense of a jury trial.” Greene, 164 F.3d at 675.

    B. The Court Grants the Defendant’s Motion for Partial Summary Judgment on the
                         Plaintiff’s Disparate Treatment Claim

                  1. Legal Standard for Disparate Treatment Under ADEA

       When the defendant in a Title VII or ADEA case presents a legitimate, non-

discriminatory reason for its actions, 3 the district court need resolve only one question to

adjudicate a motion for summary judgment: “Has the employee produced sufficient evidence for

a reasonable jury to find that the employer’s asserted non-discriminatory reason was not the

3
       In those rare cases in which the defendant fails to present a legitimate, non-discriminatory reason
       for its actions, the court must follow a three-part burden-shifting analysis known as the
       McDonnell Douglas framework. Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003) (noting
       that once the defendant presents a legitimate non-discriminatory reason “the McDonnell Douglas
       framework . . . disappears, and the sole remaining issue is discrimination vel non”) (citing
       McDonnell Douglas v. Green, 411 U.S. 792, 802-05 (1973)); see also Brady v. Office of the
       Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008) (explaining
       that “the prima facie case is a largely unnecessary sideshow”).

                                                   7
actual reason and that the employer intentionally discriminated against the employee on the basis

of race, color, religion, sex, or national origin?” Brady v. Office of the Sergeant at Arms, U.S.

House of Representatives, 520 F.3d 490, 494 (D.C. Cir. 2008). The court must consider whether

the jury could infer discrimination from (1) the plaintiff’s prima facie case, (2) any evidence the

plaintiff presents to attack the employer’s proffered explanation, and (3) any further evidence of

discrimination that may be available to the plaintiff. Waterhouse v. Dist. of Columbia, 298 F.3d

989, 992-93 (D.C. Cir. 2002) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir.

1998)). The plaintiff need not present evidence in each of these categories to avoid summary

judgment. Aka, 156 F.3d at 1289. Rather, the court should assess the plaintiff’s challenge to the

employer’s explanation in light of the total circumstances of the case. Id. at 1291.

   2. The Plaintiff Has Failed to Rebut the Defendant’s Legitimate, Non-Discriminatory
                       Justification for the Plaintiff’s Non-Selection

       The defendant argues that the plaintiff failed the Oral Assessment because he did not pass

any of the three modules and did not demonstrate the abilities required to perform the work of a

Foreign Service Officer. Def.’s Mot. at 8; Def.’s Reply at 2 n.1. The defendant specifically cites

the plaintiff’s performance in the Group Exercise module, in which the plaintiff failed to

advocate and negotiate for his assigned program, as one reason for not selecting the plaintiff.

Def.’s Mot. at 8. According to the defendant, a candidate’s “failure in any one of the three

modules mandates termination of a candidacy.” Def.’s Reply at 1.

       Accordingly, the defendant has asserted a legitimate, non-discriminatory reason for the

plaintiff’s non-selection. Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647, 655 (D.C.

Cir. 2003) (stating the “two most common legitimate reasons on which an employer might rely

to reject a job applicant: an absolute or relative lack of qualifications or the absence of a vacancy

in the job sought”). The court thus turns to consider whether, in light of the total circumstances


                                                  8
of the case, the plaintiff “has produced evidence for a reasonable jury to find that the employer’s

stated reason was not the actual reason and that the employer intentionally discriminated” against

the plaintiff on the basis of his age. See Brady, 520 F.3d at 495.

        Although far from a model of clarity, the plaintiff’s opposition suggests that

discriminatory intent can be inferred from his own assessment of his qualifications and his

statistical analysis of the passage rates of older candidates who took the Oral Assessment exam.

The plaintiff maintains that the scores he received were “virtually diametrically opposite from

what are [his] true strengths and weaknesses” and that “some of the graded traits [were]

ridiculously out of line in terms of what [he] know[s] to be true.” Pl.’s Opp’n at 26. Yet a

plaintiff’s personal evaluation of his own qualifications and performance is insufficient to rebut a

defendant’s legitimate, non-discriminatory reason for his non-selection. See, e.g., Jo v. Dist. of

Columbia, 582 F. Supp. 2d 51, 62-63 (D.D.C. 2008) (“Although Plaintiff clearly values his own

credentials and experiences, a plaintiff’s subjective assessment of his own record is largely

irrelevant.”); Spelke v. Gonzales, 516 F. Supp. 2d 76, 80-81 (D.D.C. 2007) (noting that the

“plaintiff’s subjective self-assessment [of his qualifications] does not defeat defendant’s offering

‘legitimate, nondiscriminatory reason’ for the non-selection of plaintiff”). Accordingly, a

reasonable juror could not infer discriminatory intent from the plaintiff’s evaluation of his own

abilities.

        The plaintiff also offers statistical evidence to support his opposition to the defendant’s

motion for summary judgment. See Pl.’s Opp’n at 36-39. More specifically, the plaintiff

submits mathematical calculations, which he argues show that there is a statistically significant

difference between the passage rates of those candidates who are older than forty years old and

those who are younger than forty years old. See id.



                                                  9
       Although statistical evidence may be considered in determining whether an employer has

unlawfully discriminated against an individual employee, statistical evidence is ordinarily not

dispositive in the disparate treatment context. Krodel v. Young, 748 F.2d 701, 710 (D.C. Cir.

1984) (observing that statistical evidence is less significant in the individual disparate treatment

context than in disparate impact and class-wide disparate treatment cases). Indeed, statistical

evidence standing alone is “insufficient to create an inference of disparate treatment” in

individual disparate treatment actions. Simpson v. Leavitt, 437 F. Supp. 2d 95, 104 (D.D.C.

2006) (concluding that statistical evidence of discrimination is “not conclusive [in a disparate

treatment case] and will instead serve to ‘add color’ “to a claim of discrimination, presuming

other evidence exists to give rise to an inference of discrimination); see also Horvath v.

Thompson, 329 F. Supp. 2d 1, 10 (D.D.C. 2004) (noting that “statistical evidence is only one

small part of a substantial web of evidence indicating pretext” (quoting Bell v. Envtl. Prot.

Agency, 232 F.3d 546, 553 (7th Cir. 2000))).

       Assuming arguendo that the plaintiff’s calculations are valid, 4 the plaintiff has offered no

other evidence giving rise to an inference of age discrimination. See generally Compl.; Pl.’s

Opp’n. Indeed, the plaintiff concedes that he “was given a particularly low grade in the group

exercise, undoubtedly for his failure to effectively advocate for the project which he was given.”

Compl. ¶ 30. Accordingly, the court grants summary judgment to the defendant with respect to

the plaintiff’s disparate treatment claim. See Simpson, 437 F. Supp. 2d at 104 (granting

summary judgment to the defendant despite the plaintiff’s statistical evidence of racial

4
       At this juncture, the court declines any attempt to make sense of the plaintiff’s mathematical
       calculations, which are unaccompanied by any clear explanation of relevance or reliability. See
       Pl.’s Opp’n at 37-39. The court notes, nonetheless, that the plaintiff’s statistics fail to control for
       variables other than age, thereby limiting the usefulness of his statistical analysis. See Aguilar v.
       Salazar, 626 F. Supp. 2d 36, 41 (D.D.C. 2009) (determining that a statistical analysis was
       “fundamentally flawed” and could not be used to support pretext because the individuals studied
       did not provide a relevant basis of comparison to the plaintiff).

                                                     10
discrimination because there was no other evidence from which a reasonable juror could infer

discrimination and the statistical evidence was not enough); Davis v. Ashcroft, 355 F. Supp. 2d

330, 343 (D.D.C. 2005) (granting summary judgment to the defendant because statistical

evidence is “ordinarily not dispositive” in a disparate treatment case where “the ultimate issue is

whether the particular plaintiff was the victim of an illegitimately motivated employment

decision”) (citing Krodel, 748 F.2d at 709)); compare Talavera v. Fore, 648 F. Supp. 2d 118,

134 (D.D.C. 2009) (granting summary judgment to the employer notwithstanding statistical

evidence showing a “tendency toward male promotion” because the other evidence proffered by

the plaintiff – an ambiguous stray remark by a non-decisionmaker regarding the strong bond

between male employees and the destruction of the employer’s notes regarding the plaintiff’s

interview - was insufficient to allow a reasonable juror to infer discriminatory motives) with

Jones v. Mukasey, 565 F. Supp. 2d 68, 78 (D.D.C. 2008) (denying summary judgment because

evidence of a statistically significant deviation between the hiring of African-American and

white applicants, in conjunction with other evidence, raised an issue of pretext).



                                      IV. CONCLUSION

       For the foregoing reasons, the court grants the defendant’s motion for partial summary

judgment. An Order accompanies this Memorandum Opinion is separately and

contemporaneously issued this 24th day of March, 2011.



                                              RICARDO M. URBINA
                                              United States District Judge




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