Cossette v . Sec’y Dept Agriculture CV-05-328-PB 12/3/07

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul H . Cossette

v. Case N o . 05-cv-328-PB Opinion N o .

Mike Johanns, Secretary, U.S. Dep’t of Agriculture

MEMORANDUM AND ORDER

Plaintiff Paul Cossette (“Cossette”) alleges that the U.S.

Department of Agriculture (the “USDA”) discriminated against him

based on his age when it refused to hire him for a Forest Service

position. The USDA filed a motion for summary judgment arguing

that the undisputed facts establish that Cossette was not

qualified for the position. For the reasons that follow, I grant

the USDA’s motion.

I. FACTS AND PROCEDURAL HISTORY

As is required on a motion for summary judgment, I set out

the facts in the light most favorable to the non-moving party

(Cossette), drawing all reasonable inferences in his favor. See

DeNovellis v . Shalala,

9 8 , 306 (1st Cir. 1997). On December 1 1 , 2001, Cossette applied for the position of

Resource Assistant, GS-1101-07, in the White Mountain National

Forest, Laconia, New Hampshire. He was 60 years old at the time.

The vacancy announcement described the major duties of the

position as follows:

Will be responsible for accepting applications and processing recreation special use permits. Responsible for billing of fees due the government, tracking of permit status and analysis of use associated with other recreation and non-recreation activities. Incumbent will also be responsible for business management activities associated with the forest’s Fee Demonstration Project.

The vacancy announcement also specified that the required

qualifications were: “1 full year of graduate level education or

superior academic achievement; OR 1 year of specialized

experience equivalent to at least the GS-05 level.” The

announcement defined “specialized experience” as follows:

Specialized experience is that which has equipped the applicant with the particular knowledge, skills, and abilities to perform successfully the duties of the position, and that is typically in or related to the position to be filled. To be creditable, specialized experience must have been equivalent to at least the next lower grade level.

The vacancy announcement also identified three “selective

placement factors” that were “basic to and essential for”

-2- satisfactory performance of the job: (1) “Skill in all forms of

communication techniques to enable effective information exchange

with recreation permit applicants and forest personnel,” (2)

“Knowledge and skill in word processing, data input and

spreadsheet use to accomplish a variety of processing methods for

applications, permit development, billing of permittees, and

report writing,” and (3) “Ability to analyze data from a variety

of sources to use in compiling reports.”

Separately, the USDA also issued a more detailed official

job description that described, in detail, three major

responsibilities for the position: (1) “Maintains responsibility

for the accuracy of all records in the Forest Land Use Reports

(FLURS) database, including preparing specialized and statistical

reports for District and Staff,” (2) “Initiates action for permit

renewals,” and (3) “Serves as a procedural and technical

specialist providing support in the area of special-use permits.”

According to the materials that Cossette submitted with his

employment application, he is a high school graduate who

completed one year of undergraduate education. He was an active

duty member of the U.S. Marine Corps from 1959 to 1963, worked as

a clerk for an engineering firm from 1966 to 1969, and worked for

-3- a series of banks from 1966 to 1993. He thrived in the banking

world throughout the 1980s and early 1990s, eventually attaining

positions as a bank vice president, commercial lender, and

lending supervisor. In these positions, Cossette communicated

with customers and supervised other employees. He used word

processing software, spreadsheet software, and other electronic

data input systems. He conducted complex credit analyses and

account profitability analyses, using data from a variety of

sources. Subsequently, from 1993 to the date of his application,

Cossette was “self-employed.” From May to December 2001,

Cossette also performed general district field maintenance as

part of the Forest Service’s Senior Community Service Employment

Program (“SCSEP”). 1 Cossette did not specifically describe the

nature of his work as an SCSEP enrollee. He did, however,

include an addendum to his application explaining his personal

opinions on how to improve the Forest Service’s Outfitter and

Guide permit system. He asserted that he had “first hand field

1 SCSEP is a Department of Labor program that provides minimum-wage, part-time employment to persons over the age of 5 5 , to assist them in updating or developing their work and work- application skills. In general, Forest Service SCSEP enrollees perform maintenance tasks, interact with visitors, and perform various tasks as needed.

-4- knowledge of our current compliance levels” but did not describe

the source or extent of this knowledge.

Personnel Management Specialist Sandy Jamieson, who had

issued the original vacancy announcement, reviewed the

qualifications of each applicant. She determined that Cossette

did not have either the educational background or the specialized

experience that the job required. She further determined that

although Cossette satisfied one selective placement factor (the

ability to analyze data from a variety of sources to use in

compiling reports), he did not satisfy the other two selective

placement factors. Accordingly, she determined that Cossette was

not qualified and stopped considering his application. In

January 2002, Cossette contacted Jamieson and requested further

consideration of his application. Two subsequent evaluations by

other USDA officials agreed with Jamieson’s initial conclusion

that Cossette did not meet the basic qualifications, because he

met neither the education nor the specialized experience

requirements. Ultimately, the USDA chose to hire a 49-year old

woman who had prior experience reviewing, processing, and

explaining Outfitter and Guide permit applications.

-5- On July 1 8 , 2002, Cossette filed an Equal Employment

Opportunity (“EEO”) complaint with the USDA’s EEO office,

alleging that the Forest Service’s decision not to hire him

violated his rights under the Age Discrimination in Employment

Act (“ADEA”),

et seq. Cossette’s administrative

appeals were exhausted when the U.S. Equal Employment Opportunity

Commission (“EEOC”) denied Cossette any relief. He then filed a

pro se complaint in this court, seeking de novo review of his

ADEA allegations. That is the case now before m e .

Concurrently with his EEO complaint, Cossette also filed

administrative complaints under both the Veterans Employment

Opportunity Act (“VEOA”) and the Uniformed Services Employment

and Reemployment Rights Act (“USERRA”). The Merit Systems

Protection Board (“MSPB”) denied Cossette’s VEOA claim on the

basis that Cossette had failed to establish that he met the basic

qualifications for the position, and denied Cossette’s USERRA

claim on the basis that Cossette had failed to establish that his

veteran status was a substantial or motivating factor in his

nonselection. Cossette v . Dep’t of Agric., N o . BN-3443-02-0147-

I-2, BN3443-02-0067-I-2, 2003 MSPB LEXIS 1029, at *15-16 (Merit

Sys. Prot. Bd., July 7 , 2003). He appealed the MSPB’s

-6- determination to the Federal Circuit. Reviewing the MSPB’s

determination under the deferential standard of review required

by the Administrative Procedures Act (“APA”), the Federal Circuit

held that the MSPB’s decision was not arbitrary, capricious, an

abuse of discretion, unsupported by the law, obtained without the

required procedures, or unsupported by the record. Cossette v .

Dep’t of Agric.,

9 8 , 400-01 (Fed. Cir. 2004),

cert. denied,

(2005); see also

(c)

(defining the standard of review).

II. STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). The party seeking summary judgment must demonstrate the

absence of a genuine issue of material fact in the record. See

Celotex Corp. v . Catrett,

1 7 , 323 (1986). Once the

moving party has identified the basis for its motion, however,

the nonmoving party may defeat summary judgment by showing that a

-7- jury reasonably could find in the nonmoving party’s favor. See

DeNovellis, 124 F.3d at 306. In deciding the motion for summary

judgment, I view the facts in the light most favorable to the

nonmoving party, drawing all reasonable inferences in that

party’s favor. Id. Nevertheless, the nonmoving party cannot

rest merely upon conclusory allegations, improbable inferences,

and unsupported speculation. Id.

III. ANALYSIS

To make out a prima facie case of age discrimination,

Cossette must establish the following: (1) he was at least 40

years old; (2) he was qualified for the Resource Assistant

position; (3) he was not selected for the position; and (4) the

Forest Service did not treat age neutrally in its selection

process. See Hoffman v . Applicators Sales & Serv., Inc.,

(1st Cir. 2006); Rivera-Aponte v . Rest. Metropol # 3 ,

Inc.,

(1st Cir. 2003). If Cossette makes out a

prima facie case, then the burden shifts to the Government to

articulate a legitimate, non-discriminatory reason for its

decision. Hoffman,

7 . If the Government can point

to such an explanation, then the burden shifts back to Cossette

-8- to show that this explanation is insufficient or a mere pretext

for age discrimination.

The USDA argues that Cossette cannot establish that he was

qualified for the Resource Assistant position, both because he is

estopped from contesting the issue by the Federal Circuit’s

affirmance of the MSPB’s ruling that he was unqualified, and

because the evidence in the record unambiguously demonstrates

that he was unqualified. I am persuaded by the USDA’s second

argument and thus resolve the case without addressing its

estoppel argument.

To qualify for the Resource Assistant position, Cossette

needed to demonstrate that he either met the educational

requirements established for the position or that he had at least

one year of “specialized experience.” Cossette’s educational

background clearly does not meet the established criteria, and he

does not argue otherwise. Instead, he contends that his banking

and SCSEP experience qualify as specialized experience.

In the vacancy announcement, specialized experience is

defined as experience that “has equipped the applicant with the

particular knowledge, skills, and abilities to perform

successfully the duties of the position, and that is typically in

-9- or related to the position to be filled.” (emphasis added).

Importantly, the specialized experience requirement is not

satisfied by merely showing that the applicant has a high level

of cognitive functioning or an aptitude for learning on the job.

Rather, the requirement demands that the applicant have specific

prior experience that is related to the responsibilities of the

Resource Assistant position: processing recreation special use

permits, billing of fees due the government, tracking of permit

status, analysis of use associated with other recreation and non-

recreation activities, and business management activities

associated with the Fee Demonstration Project.

District Ranger John Serfass’ deposition testimony sheds

some light on the role such experience would play in the Resource

Assistant’s job. As Ranger Serfass testified, the Resource

Assistant needs to know enough about natural resources to

explain, for example, the resource protection goals underlying

the forest plan’s limit on group sizes, rather than merely being

able to recite the rule back to a permit applicant. Deposition

of John Serfass at 1 8 , Cossette v . Johanns, N o . 05-CV-328-PB

(D.N.H. May 1 8 , 2007) (hereinafter “Serfass Dep.”).

Additionally, the Resource Assistant needs to know enough about

-10- “the National Forest, our ownership, what our rules allow” to

identify potential alternatives to prohibited plans. Ranger

Serfass offered the following example of what the Resource

Assistant would need to be able to explain to an applicant

seeking permits to establish tent camps in a particular area of

the National Forest:

[H]ere’s some options you’ve got. You could go in this location and then what you’re proposing would be okay; or if you just move back from the stream 500 feet, what you’re proposing to do would be okay; or if you stayed out of the wilderness what you’re proposing to do would be okay and then be able to -- when a person says, why is that? Well, sensitive soils, human waste, trampling vegetation, disturbance of wildlife, all of those things are part of what happens when you don’t manage the outfitter-guide use.

at 3 0 .

Cossette first contends that his extensive banking

experience satisfies the “specialized experience” requirement. I

disagree. Although Cossette’s experience as a commercial lender

and bank vice president suggests that he has a high level of

cognitive functioning and possesses many skills specific to the

banking industry, Cossette failed to show how his banking

experience could have provided him with forest management skills,

familiarity with special use permits, or other skills specific to

-11- the forestry-specific aspects of the Resource Assistant position.

In his job application, Cossette suggested that his banking-

related experience made him able to adapt to new contexts. Being

a fast learner, however, is not the same thing as having the

requisite experience. Accordingly, Cossette failed to show that

he gained the necessary “specialized experience” from his

banking-related work.

Cossette next contends that his seven months in the SCSEP

program satisfied the one-year specialized experience

requirement. This argument is also unavailing. First, Cossette

failed to satisfy the one-year requirement because he only worked

as an SCSEP enrollee for seven months. Second, even if the

Forest Service relaxed the one-year requirement, Cossette

described his work as an SCSEP enrollee as “general field

maintenance.” He did not explain how seven months of conducting

general field maintenance could have conferred the skills and

experiences contemplated by the “specialized experience”

requirement. Absent such an explanation, any conclusion that

those seven months did confer the necessary experience would be

pure speculation. Cossette’s freestanding assertion that he has

“first hand knowledge” of permit compliance levels, without

-12- explaining the source or extent of that knowledge, and without

explaining how his SCSEP responsibilities provided him with the

relevant knowledge and experience, is also not enough to show

that he obtained the required skills and experience.

Accordingly, Cossette failed to show that he gained the necessary

“specialized experience” from his seven months in the SCSEP

program.

Finally, Cossette attacks the specialized experience

requirement as being a pretext for age discrimination. The

specialized experience requirement is age-neutral on its face,

however, and Cossette has offered no evidence suggesting that it

was developed with an age-discriminatory purpose in mind. Rather

than producing evidence of age-discriminatory animus, Cossette

merely argues that specialized experience is not an irreducible

requirement of the job. That argument misses the mark. See

Mesnick v . Gen. Elec. Co.,

(1st Cir. 1991)

(“Courts may not sit as super personnel departments, assessing

the merits -- or even the rationality -- of employers'

nondiscriminatory business decisions.”). Without evidence that

the requirement sprang from age-discriminatory animus, Cossette’s

pretext argument must fail, leaving him no remedy under the ADEA.

-13- See Hoffman,

(employer’s termination of an

employee because he disliked the employee does not violate the

ADEA unless the employee can show that the employee’s age was

also a motivating factor); Rivera-Aponte,

(the

appropriate inquiry is whether the decision was made with

discriminatory animus, not whether it was wise or adequately

considered); see also Velazquez-Fernandez v . NCE Foods, Inc.,

(1st Cir. 2007) (the mere fact that an older employee

was replaced by a younger employee, combined with a single stray

ageist remark, was insufficient to establish that the older

employee’s termination was pretextual).

IV. CONCLUSION

For the reasons set forth herein, the defendant’s motion for

summary judgment (Doc. N o . 52) is granted. The Clerk is

instructed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge December 3 , 2007

cc: Paul Cossette, pro se T . David Plourde, Esq.

-14-