Ficken v. Clinton
2011 U.S. Dist. LEXIS 31164
| D.D.C. | 2011Background
- Pro se plaintiff Ivan Ficken sues the Department of State alleging age discrimination in failing to hire him as a Foreign Service Officer after the Oral Assessment.
- Plaintiff previously passed the FSWE but was denied after the Oral Assessment in 2002, which consists of three modules: group exercise, case management study, and structured interview; passing module threshold is 5.25 out of 7.
- Scores: Group Exercise 3.6, Case Management Study 4.2, Structured Interview 4.2; overall score 4, leading to termination of candidacy.
- Plaintiff contends the Oral Assessment is biased against older candidates and later files EEO complaints alleging age discrimination.
- Early orders dismissed most claims; remaining claims include disparate treatment (age) and potential disparate impact; defendant moves for partial summary judgment on the disparate treatment claim.
- Court grants defendant’s motion, holding plaintiff failed to rebut a legitimate, non-discriminatory reason for non-selection; statistical arguments do not establish pretext.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant's non-discriminatory reason for non-selection is pretextual | Ficken contends age bias affected scoring and pretext evidence. | State Department legitimate reason: failing in all three Oral Assessment modules; no pretext shown. | Yes, defendant's reason not rebutted; summary judgment for defendant on disparate treatment. |
Key Cases Cited
- Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490 (D.C. Cir. 2008) (pretext analysis after legitimate reason presented)
- Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (totality of the circumstances standard for pretext)
- Morgan v. Fed. Home Loan Mortg. Corp., 328 F.3d 647 (D.C. Cir. 2003) (two common legitimate reasons for rejection; non-discriminatory justification)
- Krodel v. Young, 748 F.2d 701 (D.C. Cir. 1984) (statistical evidence in disparate treatment context not dispositive)
- Simpson v. Leavitt, 437 F. Supp. 2d 95 (D.D.C. 2006) (statistical evidence not conclusive without other evidence)
- Davis v. Ashcroft, 355 F. Supp. 2d 330 (D.D.C. 2005) (statistical evidence generally not dispositive in disparate treatment)
- Talavera v. Fore, 648 F. Supp. 2d 118 (D.D.C. 2009) (ambiguous remarks insufficient to show pretext when other evidence lacking)
- Jones v. Mukasey, 565 F. Supp. 2d 68 (D.D.C. 2008) (evidence of disparate impact with other evidence can raise issue of pretext)