DESLAURIERS v. NAPOLITANO

Following Gross, the plaintiff's burden at this final stage is to prove "that age was the `but-for' cause of the employer's adverse action." Id. at 448.

1. Prima Facie Case

Mr. Deslauriers easily meets his prima facie case. Mr. Deslauriers was over forty at the time of the alleged discrimination. Ex. 101. He was qualified for the position and was denied the promotion. Tr. 93:1-10. The successful candidate, Mr. Podschlne, was younger, Ex. 101, and had similar qualifications. Tr. 93:1-10.

The Government gives two reasons for why Mr. Deslauriers cannot make out his prima facie case. First, it argues that an inference of age discrimination cannot be made when the successful candidate is not "substantially younger" than the worker denied the position. Def.'s Proposed Findings of Fact and Conclusions of Law at 34 (Docket # 121) (Def.'s Mem.) (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996)). Because Mr. Podschlne is only 5 1/2 years younger than Mr. Deslauriers, the Government urges the Court to conclude that the age difference "does not meet the minimum legal threshold for raising an inference of age discrimination." Id. at 35.

In O'Connor v. Consolidated Coin Caterers Corp., a 56-year-old employee sued under the ADEA after he was fired and replaced by a younger employee. O'Connor, 517 U.S. at 309. The Fourth Circuit held that the employee failed to make out a prima facie case of discrimination because the younger employee was not outside the protected class. Id. at 310. In reversing the Court of Appeals, the Supreme Court emphasized that the prima facie case is focused on whether the person within the protected class was discriminated against on the basis of age, not on whether the ADEA plaintiff was replaced by someone outside the protected class. Id. at 312. Thus, the Supreme Court concluded that whether "a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class." Id. at 313.

In applying O'Conner, the First Circuit interprets its "substantially younger" language to mean "that an age difference of less than five years is insufficient to support a prima facie case of age discrimination." Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000) (holding that a three year age difference is "too insignificant" to support a prima facie case of age discrimination). Although some Circuits require a greater age difference, the First Circuit does not. Compare Williams, 220 F.3d at 20, with Girten v. McRentals, Inc., 337 F.3d 979, 981 (8th Cir. 2003) (questioning whether a nine year age difference is sufficient); Grosjean v. First Energy Corp., 349 F.3d 332, 340 (6th Cir. 2003) (stating that six years is insufficient absent direct evidence of discrimination); and Richter v. Hook-SupeRx, Inc., 142 F.3d 1024, 1029 (7th Cir. 1998) (finding that a seven year age difference did not create an inference of age discrimination). Because Mr. Podschlne was more than five years younger than Mr. Deslauriers, under First Circuit law, their age difference supports an inference of discrimination.

Second, the Government argues that to make out a prima facie case of age discrimination, "the Plaintiff must demonstrate that the decision-makers knew the applicants' ages." Def.'s Mem. at 35 (citing Woodman v. WWOR-TV, Inc., 411 F.3d 69, 87 (2d Cir. 2005)). Because "neither the deciding official (Matthew Zetts) nor the recommending official (Roland Richardson) knew the applicants ages," the Government concludes that Mr. Deslauriers failed to satisfy the minimum legal threshold for an age claim. Id. at 36. According to the Government, knowledge cannot be imputed from information contained on the applications: Mr. Deslauriers' high school graduation date is meaningless because there is no evidence that the decision-makers used it to calculate his age and no high school graduation date was included on Mr. Podschlne's application. Id. The Government further argues that even if the officers discriminated against Mr. Deslauriers based on time in service, "there is no discrimination even if the motivating factor (such as pension status) is correlated with age." Id. (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993)). Regardless, the Government contends that time in service is not related to age because agents join the Border Patrol at different ages. Id. at 37.

In Woodman, the plaintiff, citing O'Conner, argued that the defendant's knowledge of the plaintiff's relative age to the successful candidate is irrelevant at the prima facie stage and that courts can infer knowledge when a significantly younger employee replaces a plaintiff. Woodman, 411 F.3d at 80. Rejecting this interpretation of O'Conner, the Second Circuit found that, like the vast majority of cases to deal with the ADEA, the employer in O'Conner knew the ages of the employees. Id. Instead, the Woodman Court found that the "presumption" that arises from establishment of a prima facie case is not raised without some evidence that an employer knew that it was replacing an older worker with a younger one. Id. at 81 (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993) (defining the "presumption" as a required conclusion of discrimination in the absence of explanation)). Quoting Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d Cir. 1996), the Woodman Court concluded, "[I]t is counter-intuitive to infer that the employer discriminated on the basis of a condition of which it was wholly ignorant." Woodman, 411 F.3d at 81. In the absence of First Circuit case law on the issue, the Court follows the persuasive reasoning in Woodman and finds that knowledge is a part of the fourth prong of a prima facie ADEA case. See Montalvo-Leon v. Wyeth Pharm. Co., Civil No. 05-1236 (DRD), 2007 WL 2905350, at *21 (D. P.R. Sep. 24, 2007) (citing Woodman for conclusion that employer knowledge of age discrepancy is required for a prima facie ADEA case).

Like the other elements in a prima facie case, however, the evidence needed to establish knowledge is "minimal." Woodman, 411 F.3d at 83. In Woodman, the Second Circuit concluded that "direct proof" was not needed to prove an employer's knowledge. Id. Not only can knowledge be established through circumstantial evidence but also "in drawing inferences of knowledge from circumstantial evidence, a fact finder is not required to operate in an experiential vacuum." Id. at 83-84. The factfinder is expected to "draw on the full range of his reason, experience, and common sense." Id. at 84.

Although both Mr. Richardson and Mr. Zetts stated that they did not know the ages of Mr. Deslauriers and Mr. Podschlne and did not calculate a rough estimate based on dates contained in their applications, the Court readily finds knowledge based on circumstantial evidence. The Court observed at trial that Mr. Deslauriers looks and acts much older than Mr. Podschlne. The Court agrees with Mr. Gayton's testimony that not knowing the actual ages of the two men would cause an observer to overestimate, not underestimate, the age difference. Tr. 49:21-23. Because both Mr. Richardson and Mr. Zetts interacted with the two men before the hiring decision, the Court concludes they knew that Mr. Podschlne was substantially younger than Mr. Deslauriers. Mr. Deslauriers made out a prima facie case of age discrimination.

Although Mr. Richardson was not present at Mr. Deslauriers' interview, he knew Mr. Deslauriers professionally. See, e.g., Tr. 287:24-288:8.

2. Legitimate Non-Discriminatory Reason

The Border Patrol can rebut this inference by "articulat[ing] a legitimate, non-discriminatory reason for its decisions." Arroyo-Audifred, 527 F.3d at 219 (citing Currier v. United Techs. Corp., 393 F.3d 246, 254 (1st Cir. 2004)). It has. The Border Patrol asserts that Mr. Podschlne was selected based on his superior writing skills. See Rathbun v. Autozone, Inc., 361 F.3d 62, 74 (1st Cir. 2004) (recognizing superior qualifications as a legitimate reason for an employer's decision). Mr. Zetts and Mr. Richardson both testified that Mr. Podschlne was selected based on the slightly superior quality of his intelligence reports. Tr. 92:10-94:13, 463:10-22. Mr. Sill, Mr. Richardson, and Mr. Zetts all testified that they thought Mr. Podschlne's reports were better. Id. 93:1-10, 94:6-13, 464:7-12. Mr. Richardson called Mr. Deslauriers shortly after the selection and told him that Mr. Podschlne was selected based on his writing skills. Id. 149:12-21. Furthermore, report writing is an important part of a LPBA's duties. See, e.g., id. 77:16-78:7, 207:17-23, 354:2-11, 540:10-17.

Mr. Deslauriers responds that the Government's asserted explanation is not believable because the LBPA job posting did not include writing skills as an important part of the position and there is no credible testimony that a thorough review of the written reports was made. Pl.'s Proposed Findings of Fact and Conclusions of Law at 30-31 (Docket # 128) (Pl.'s Mem.). However, the believability of the legitimate reason is relevant to the question of pretext, see infra Part II.A.3, not whether the reason itself is a legitimate one. Cf. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (addressing weaknesses in the

employer's legitimate reason in the context of pretext). The Border Patrol has satisfied the second-prong of the McDonnell Douglas test.

3. Pretext

Because the Border Patrol sustained its burden of production to establish a legitimate nondiscriminatory reason for its promotion decision, Mr. Deslauriers must produce evidence that its proffered reasons are a pretext for age discrimination. Hoffman v. Applicators Sales and Serv. Inc., 439 F.3d 9, 18 (1st Cir. 2006) (affirming summary dismissal because "no factfinder could rationally conclude from the record . . . that the termination — whatever its precise motivation — was motivated by [age] discrimination"). Mr. Deslauriers makes five arguments for why the Border Patrol's reason is pretextual: Mr. Deslauriers was more qualified; there were irregularities in the interview process; Mr. Podschlne was pre-selected for the position; the reason proffered is implausible, inconsistent, and incoherent; and statistical evidence supports a claim of age discrimination. Taken together, Mr. Deslauriers contends the Court must find that "but for Deslauriers age, he would have been selected for the LBPA position in Calais." Pl.'s Mem. at 40.

a. Qualifications

When an employer claims to have promoted one person over another based on qualifications, "the question is not which of the aspirants was better qualified, but, rather, whether the employer's stated reasons for selecting one over the other were pretextual." Rathbun, 361 F.3d at 74. In line with the business judgment rule, "[c]ourts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' nondiscriminatory business decisions." Mesnick, 950 F.2d at 825. Because "[q]ualifications are notoriously hard to judge," "an unwise personnel decision" does not necessarily indicate discrimination. Rathbun, 361 F.3d at 74; accord Keyes v. Sec'y of Navy, 853 F.2d 1016, 1024-26 (1st Cir. 1988); Gray v. New Engl. Tel. Tel. Co., 792 F.2d 251, 255 (1st Cir. 1986); Freeman v. Package Mach. Co., 865 F.2d 1331, 1341 (1st Cir. 1988). The First Circuit has cautioned that evidence of competing qualifications "seldom provides a principled way for a factfinder to determine whether a given employment decision, even if wrong-headed, was anything other than `a garden variety mistake in corporate judgment.'" Rathbun, 361 F.3d at 74 (quoting Freeman, 865 F.2d at 1341).

The First Circuit does recognize that in "a rare case," a plaintiff may be able to prove pretext based on superior qualifications. Id. (citations omitted). However, the First Circuit emphasizes that the difference in qualifications must be "stark" and that, "in the absence of strong objective evidence (e.g., test scores), . . . will seldom, in and of itself, be sufficient to create a triable issue of pretext." Id. (citing Deines v. Tex. Dep't of Protective and Regulatory Servs., 164 F.3d 277, 282 (5th Cir. 1999) (stating that superior qualifications only suggests pretext in extreme cases where qualifications are "so widely disparate that no reasonable employer would have made the same decision")).

Mr. Deslauriers makes two arguments for why he is more qualified than Mr. Podschlne. First, he contends that he has more training, awards, and experience than Mr. Podschlne. Pl.'s Mem. at 32-33. Much of what Mr.

Deslauriers contends are his superior qualifications, however, are based on his assessment, not the Border Patrol's. On cross-examination, Mr. Deslauriers' lawyer pressed Mr. Zetts to admit that Mr. Deslauriers had received more training than Mr. Podschlne. Tr. 491:13-492:4. Instead, Mr. Zetts distinguished between training and relevant intelligence training, stating "some of [Mr. Deslauriers'] training is good border patrol agent training. Some of it is not relevant to the position of lead border patrol agent. He did receive more training, yes." Id. 491:18-23. Similarly, when Mr. Deslauriers' lawyer cross-examined Mr. Richardson, the Border Patrol agent answered generally: the attorney asked whether prescription drug diversion training was relevant to the LBPA position and the agent answered "Could have been, yes." Id. 117:13-118:3. Relevance is a low bar, however, and the Court is not in a position to second guess what qualifications the Border Patrol values.

More fundamentally, the Court is not convinced that the Border Patrol placed a high value on superior qualifications. The Border Patrol looked at qualifications initially to select the top two candidates. Id. 88:4-7. Once identified, however, the Border Patrol based the actual selection on the agent's performance in the interview and as acting LBPA, using the agent's report writing as a tie breaker. By asserting that the Border Patrol overlooked Mr. Deslauriers' superior qualifications, Mr. Deslauriers essentially asks the Court to find that the Border Patrol erred in assigning more weight to performance than to the training, details, and experiences on Mr. Deslauriers' résumé. Although the Border Patrol could have used the agents' applications as a tie breaker, it did not. It is difficult to strike the balance between experience and performance and the Border Patrol's emphasis on performance falls squarely within the sweep of the business judgment rule.

Second, Mr. Deslauriers contends that Mr. Deslauriers is more qualified based on the Border Patrol's own measuring stick. Pl.'s Mem. at 34. Mr. Deslauriers emphasizes that he alone served as the collateral intelligence agent at the Calais station in 2004 and he served longer as acting LBPA than Mr. Podschlne. Id. at 33-34. He also summarizes the praise he received from Mr. Sill and Mr. Gayton for his intelligence reports and compares it to some unhelpful intelligence developed by Mr. Podschlne. Id. at 34. Mr. Deslauriers overlooks, however, the testimony from Mr. Sill that positive feedback was part of his management style and that he gave similar compliments to Mr. Podschlne. Tr. 541:7-18, 541:22-542:2. Furthermore, Mr. Deslauriers received the compliments before Mr. Podschlne provided a point of comparison. Mr. Sill testified that although Mr. Deslauriers had written good reports, after he read Mr. Podschlne's, he recognized that they were better. Id. 542:11-21. Mr. Gayton's preference for Mr. Deslauriers carries less weight because he testified that his preference was only minimally based on Mr. Deslauriers' written work, the standard employed by the Border Patrol. Id. 38:3-11. To accept Mr. Gayton's opinion would be to endorse his view that intelligence contacts are more important than writing for the LBPA position. This type of judicial second-guessing is forbidden by the First Circuit. Mesnick, 950 F.2d at 825 (warning courts not to act as "super personnel departments"). Mr. Zetts valued Mr. Podschlne's writing style more highly than Mr. Deslauriers' more extensive intelligence experience and the Court defers to this business judgment.

b. Hiring Irregularities

The First Circuit recognizes that "[d]eviation from established policy or practice may constitute evidence of pretext." Boyajian v. Starbucks Corp., 587 F. Supp. 2d 295, 306 (D. Me. 2008) (citing Kouvchinov v. Parametric Tech. Corp., 537 F.3d 62, 68 (1st Cir. 2008)). Mr. Deslauriers alleges multiple hiring irregularities: the failure to conduct a full KT; the placement of Mr. Podschlne on the noncompetitive list; the production of the partial KT after having initially stated it did not exist; the non-participation of Mr. Richardson in Mr. Deslauriers' interview; the differences in questions asked at the interviews; and the failure to ask for and disregard of Mr. Gayton's opinion. Pl.'s Mem. at 35-36.

The discrepancies identified by Mr. Deslauriers do not constitute evidence of pretext. The lack of a full KT was not necessarily an irregularity; Mr. Zetts testified that he did not always use a KT and sometimes selected candidates without it. Tr. 471:4-25. Furthermore, because the KT was only used to select which candidates to interview, it is unclear how the lack of a full KT harmed Mr. Deslauriers, who was interviewed. Id. 88:4-7. Although Mr. Zetts was wrong when he initially testified that the partial KT was destroyed, he had made a reasonable assumption when he was unable to locate it based on Border Patrol policy. Id. 459:8-23. Although Mr. Richardson was missing from Mr. Deslauriers' interview, the decision-maker, Mr. Zetts, was present, and not every interviewer attended every interview. Id. 91:3-12, 139:6-25, 140:5-18. Differences between the questions posed to Mr. Deslauriers and Mr. Podschlne were consistent with the LBPA interview process: both were asked the same seven questions and each was asked a few unique ones. Id. 142:15-23; Exs. 37, 38. Finally, not soliciting Mr. Gayton's opinion was not a deviation from normal hiring policy. Although the Border Patrol "usually" asked Mr. Gayton for a recommendation, it had done so because he had traditionally been the direct supervisor of the candidates. Tr. 44:6-12. In-line with the practice of asking for a recommendation from the direct supervisor, Mr. Richardson asked Mr. Sill for his recommendation. Id. 92:11-20. Because the separate intelligence chain of command was new, the LBPA selection was one of the first promotions in which the opinion of an intelligence supervisor was more relevant than the opinion of the station's PAIC.

Although it is unclear how the one true irregularity — Mr. Podschlne's misplacement on the noncompetitive list — occurred, the mistake originated in Washington, not in Calais. Steiner Decl. ¶¶ 4-5. Furthermore, it is unclear how the irregularity harmed Mr. Deslauriers. He was given an interview and was considered as competitive a candidate as Mr. Podschlne. Tr. 89:18-90:11, 92:10-11, 456:7-22. Finally, there is no evidence that the selecting officials believed that Mr. Podschlne was at a higher pay-scale. Mr. Zetts stated that "[the selection officials] knew all the candidates. They all had at least two years experience in Houlton sector." Id. 472:7-16. Such familiarity makes it likely that the selecting officials recognized Mr. Podschlne's placement on the noncompetitive list as a mistake.

c. Preselection

Preselection of a candidate alone does not violate the ADEA when it is "based on the qualifications of the preselected party." Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th Cir. 1986); accord Kennedy v. Landon, 598 F.2d 337, 341 (4th Cir. 1979). However, some circuits find that preselection is relevant to the employer's motivations and "operates to discredit the employer's proffered explanation for its employment decision." Goostree, 796 F.2d at 861; see also Ham v. Washington Suburban Sanitary Comm'n, 158 Fed. Appx. 457, 470 (4th Cir. 2005) (stating that preselection can support a finding of pretext in conjunction with other evidence); Coble v. Hot Springs Sch. Dist. No. 6, 682 F.2d 721, 728-29 (8th Cir. 1982) (finding that evidence of preselection discredited the school district's proffered legitimate explanation). Mr. Deslauriers contends that Mr. Podschlne was preselected because only a partial KT was performed when a full KT would have revealed Mr. Deslauriers as the better candidate, because Mr. Gayton's opinion that Mr. Deslauriers was a superior candidate was not solicited, because Mr. Podschlne was asked different hypothetical questions than Mr. Deslauriers at the interview, and because a third qualified candidate, Mr. Whittaker, was not afforded an interview. Pl.'s Mem. at 36-37.

The evidence does not establish preselection. The Court cannot predict the result of a full KT. Although Mr. Deslauriers urges the Court to accept the KT matrix as the same or similar to the full KT that would have been performed, both Mr. Richardson and Mr. Zetts testified that they were unfamiliar with the form. Tr. 104:15-105:3, 476:3-5. Without evidence of its origin, the Court gives it little weight. Furthermore, there is also no evidence that either Mr. Richardson or Mr. Zetts knew that a full KT would favor Mr. Deslauriers. Absent such knowledge, their reason to not perform one is unrelated to favoritism. Similarly, there is also no evidence that Mr. Gayton was not asked for his opinion because he favored Mr. Deslauriers or that Mr. Richardson knew which candidate Mr. Gayton favored. Mr. Richardson testified that he asked Mr. Sill for his opinion because he valued it as the intelligence supervisor and that he found Mr. Gayton's opinion as PAIC less valuable. Id. 92:11-20, 151:4-10. The Court has no reason to second-guess Mr. Richardson. Finally, the Court is unsure how asking different questions of the candidates and not interviewing Mr. Whittaker shows that Mr. Podschlne was preselected: there is no connection between the specific questions and preselection; and not giving Mr. Whittaker an interview indicates, at best, the preselection of Mr. Podschlne and Mr. Deslauriers, not Mr. Podschlne alone.

d. Weaknesses in Legitimate Reason

Mr. Deslauriers can establish pretext "by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a factfinder could infer that the employer did not act for the asserted nondiscriminatory reasons." Carreras v. Sajo, Garcia Partners, 596 F.3d 25, 37 (1st Cir. 2010) (quoting Santiago-Ramos, 217 F.3d at 56). However, the First Circuit is clear that minor discrepancies in explanations do not qualify because "[o]ur laws are designed to ensure against discrimination and retaliation, not `inaccuracy by an employer.'" Id. (quoting Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 535 (1st Cir. 2002)).

Mr. Deslauriers points out four "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the reasoning behind the Border Patrol's selection. First, Mr. Deslauriers contends that the only concrete example of a superior intelligence report by Mr. Podschlne was one based on an investigation initiated by Mr. Deslauriers and was more like an "after-action report than an intelligence report." Def.'s Mem. at 37-38. However, Mr. Sill still found Mr. Podschlne's report valuable because "he went further into the intelligence report that he produced." Tr. 569:17-20. Furthermore, he was using the report as an example of the writing he preferred, not of a better intelligence report. Id. 569:1-3. At most, the report demonstrates that Mr. Sill was wrong in his assessment, not that his underlying reason was wrong. Even if he based his recommendation on an initial impression later proved wrong, it indicates a bad hiring decision not a pretextual one.

Second, Mr. Deslauriers contrasts Mr. Zetts' statement in his EEOC declaration that he had selected Mr. Podschlne in part because of his better education with his admission at trial that the two candidates had basically the same education. Def.'s Mem. at 37-38. Although Mr. Zetts was mistaken about Mr. Podschlne's education, it does not make him mistaken about Mr. Podschlne's writing ability.

Third, Mr. Deslauriers finds additional inconsistencies in the contrast between Mr. Richardson's disparaging comments about Mr. Deslauriers' intelligence reports in his EEOC declaration and his and Mr. Sill's admissions that some of Mr. Deslauriers' reports were good. Id. at 38. Mr. Sill and Mr. Richardson both testified that although Mr. Deslauriers did good work, Mr. Podschlne's work was better. Tr. 93:1-10, 544:17-25. This inconsistency does not, however, reveal pretext.

Fourth, Mr. Deslauriers argues that the Border Patrol's contradictory and inconsistent statements about the intelligence reports support the conclusion of pretext. Def.'s Mem. at 38. The Court does not draw the same significance from inconsistencies in the testimony about the review process. The selection decision occurred in 2005 and five years later some memory gaps are understandable. Although Mr. Sill did not re-review the intelligence reports before he told Mr. Richardson that Mr. Podschlne was a better writer, he based his decision on the assessment he had already made when reviewing the reports as intelligence supervisor. Tr. 567:3-14. Mr. Sill recommended Mr. Podschlne to Mr. Richardson who in turn recommended Mr. Podschlne to Mr. Zetts. Id. 94:6-13, 94:24-95:6. Mr. Richardson and Mr. Zetts testified that they did some minimal independent review but both essentially confirmed Mr. Sill's opinion. Id. 93:24-94:3, 464:7-8. Mr. Richardson told Mr. Deslauriers only a few weeks after the selection decision that it was made based on Mr. Podschlne's writing skills. Id. 150:4-8. Although the selection process relied heavily on Mr. Sill's subjective preference for Mr. Podschlne's reports, it does not make the hiring decision pretextual.

e. Statistical Evidence

"[S]tatistical evidence showing disparate treatment by the employer of members of the protected class" can prove that a legitimate hiring reason was pretextual. Mesnick, 950 F.2d at 824; see also Booker v. Mass. Dep't of Pub. Health, 527 F. Supp. 2d 216, 226 (D. Mass. 2007) (stating that in proving pretext, "the full panoply of circumstantial evidence is available, including but not limited to statistical evidence showing disparate treatment by the employer of members of the protected class"); Boyajian, 587 F. Supp. 2d at 307-08 (finding that plaintiff survived summary judgment based on employer's conduct during and after the interview and the employer's hiring data). The First Circuit warns, however, that statistical evidence standing alone is rarely sufficient to prove pretext because "a company's overall employment statistics will, in at least many cases, have little direct bearing on the specific intentions of the employer when [deciding whether to promote] a particular individual." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 848 (1st Cir. 1993). The Court in Leblanc concluded that statistics, alone, likely do not show that an employer's decision was impermissibly based on age "[w]ithout an indication of a connection between the statistics, the practice of the employer, and the employee's case." Id. (internal quotation marks omitted). The usefulness of hiring data is further undermined when other explanations for the results are not eliminated, such as random choice and the distribution of aptitudes and experience among employees of different ages. Boyajian, 587 F. Supp. 2d at 308.

No statistical significance can be drawn from the selection of the LBPAs. In four of the six stations in the Houlton sector, no candidates over forty applied for the position. Ex. 39. In Calais, Mr. Wittaker, the other candidate over forty who applied for the LBPA position, had intelligence experience but had not served as an acting LBPA. Ex. 31. Although not a prerequisite for becoming an LBPA, all the LBPAs selected had served as an acting LBPA. Tr. 547:17-548:9. Furthermore, with only the ages of the LBPA candidates from other stations, the Court cannot eliminate other explanations for the hiring decisions.

There is also no evidence of an age-based hiring pattern in non-LBPA selections. When all the non-LBPA promotion selections are considered, half of the selected candidates were above the age of forty and half below. Ex. 102. Mr. Deslauriers asks the Court to edit this number to only include those positions he characterizes as most similar to the LBPA position, but he does not explain why the Border Patrol would discriminate based on age for only those positions most similar to the LBPA. Pl.'s Mem. at 39. Regardless, because information is only provided about the successful candidates, other explanations for the hiring decisions cannot be eliminated. The record does not reveal whether any candidates over forty applied for any one opening or the qualifications of those agents over forty who did apply.

4. Conclusion: Imperfect But Not Discriminatory

Mr. Deslauriers has not met his burden of proving that the Border Patrol's legitimate reason for selecting Mr. Podschlne is pretextual. Nevertheless, certain aspects of the Border Patrol's promotion process were imperfect and gave an impression of unfairness, which taken together, gave Mr. Deslauriers reason to suspect that the true basis for the decision was improper.

First, even though the age difference between Mr. Deslauriers and Mr. Podschlne was not numerically large, during their testimony at trial, Mr. Deslauriers, who is reserved, both looked and acted older than Mr. Podschlne, who appears younger and more exuberant. Mr. Gayton testified that he at first thought the age difference between the two men was 12 or 15 years. Id. 49:21-23. He knew Mr. Deslauriers' age, having worked with him for many years, but he thought that Mr. Podschlne was in his 20s because "he looks young . . . he comes across young . . . he talks like somebody in their 20s . . . he's not very worldly." Id. 49:8-14.

Second, there was the still unexplained mistake in Washington inaccurately giving Mr. Podschlne a non-competitive slot. Even though the Border Patrol has assured Mr. Deslauriers that the Washington error made no difference, Mr. Deslauriers could be forgiven for not accepting the Border Patrol's representations.

Third, an appearance of unfairness was created when one the interviewers did not even show up at Mr. Deslauiers' interview and the Border Patrol made no effort to reschedule the interview. If the purpose of the interview is to allow the applicant to make an in-person pitch, the absence of an interviewer compromised Mr. Deslauriers' ability to make an in-person presentation to the full panel. Furthermore, once Mr. Deslauriers learned that his application was unsuccessful and began to ask why, the absence of one of the interviewers was a logical place to start. Again, it is understandable that Mr. Deslauriers would not accept the Border Patrol's explanation that Mr. Richardson's absence made no difference, since he was, after all, a member of the interviewing panel and his opinion must have been valued. It also may have signaled to Mr. Deslauriers that the interview was insignificant because the promotion decision was preordained.

Fourth, the most non-transparent part of the Border Patrol's promotion process was that, in using report writing as the tie-breaker, the decisionmakers applied subjective and unknown standards to the quality of the reports. It is true that Agents Deslauriers and Podschlne were on notice that one of the Border Patrol's criteria was report writing and that, in a close case, the Border Patrol was within its rights to use the quality of the candidates' report writing as a tie breaker.

At the same time, this part of the promotion process was opaque. The Border Patrol agents were never told which writing style the Border Patrol preferred and, as it turns out, the decision-makers applied subjective criteria retroactively to the quality of the reports. For example, Mr. Zetts testified that Mr. Podschlne wrote "more detailed, relevant reports," tr. 464:11-12; yet, Mr. Richardson described Mr. Podschlne's reports as "more concise and to the point." Id. 94:9-10. It is difficult to understand how Mr. Podschlne's reports could be simultaneously "more detailed" and "more concise", and it seems that Mr. Zetts and Mr. Richardson were applying different standards.

One criticism of Mr. Deslauriers' report writing was that that his reports were more like police reports than intelligence reports. Mr. Sills described the difference:

Typically a police report is something that describes a situation, an occurrence, an incident, and it talks to the standard facts, the who, what, where, when, and how. An intelligence report goes deeper. It explains those things but then goes into history, it goes into connections, connectivity to other circumstances, and delineates all of that.

Id. 561:24-562:5. Although Mr. Sills testified that he had been "impressed with some of Agent Deslauriers' reports," id. 561:3-4, he also said that when compared to Mr. Podschlne's reports, Mr. Deslauriers' reports were more like police reports than intelligence reports. Id. 563:22-564:1. Mr. Richardson applied another standard to the reports: whether "they would be very easy to read by an outside agency." Id. 94:9-13.

What seems to have happened is that once the two candidates were deemed very close, Mr. Zetts decided to use report writing as the tie breaker. Because this factor assumed critical significance late in the process, neither Mr. Deslauriers nor Mr. Podschlne was asked about their report writing during their interview. As it turns out, Mr. Deslauriers had an explanation for why his reports were more like police reports, but the decision-makers never heard it.

As the first acting LBPA, Mr. Deslauriers was required to "start the unit from the ground up," tr. 268:18-19, and he initiated many "face to face" contacts. Id. 268:22. For example, he personally visited "all the local police departments." Id. 269:23-24. Although he became involved in some investigations, his primary duty, as he viewed it, was to make the contacts that would bear investigative fruit in the future. In writing his reports, Mr. Deslauriers was concerned about releasing confidential information, particularly in drug cases, to the long list of official recipients, for fear of compromising his sources. Id. 274:9-18. Furthermore, although Mr. Deslauriers was aware of the difference between police reports that convey the facts and intelligence reports that piece together information, he could not recall ever having had the purpose of his reports "clearly delineated." Id. 273:14-15. To this point, Mr. Sills admitted that he had never told Mr. Deslauriers that he needed to provide more detail in his intelligence reports, that they were too much like police reports, or that his written reports were deficient in any way. Id. 564:7-22.

By contrast, Mr. Podschlne had the advantage of the groundwork that Mr. Deslauriers had laid for the intelligence unit and he was able to give more attention to the written reports, providing more context and narrative. In Mr. Podschlne's words:

I collected as much information as I possibly could from many different sources — these sources to include human intelligence, confidential informants, pocket trash on arrested folks, other agencies — and — and I compiled that information, I analyzed it, and I produced a document analyzing that threat. And at that point, I'd disseminate that information through the chain of command so that they had the most up-to-date information possible to make determinations on combating the threat.

Id. 206:4-12. Comparing their testimony, Mr. Podschlne viewed the preparation of the written report as more central to his work as an LBPA.

It was Mr. Podschlne's good fortune that, in breaking a tie between the candidates, the decision-makers chose an area of LBPA duties that ran to his strength. If they had elected to emphasize contacts in the field and face-to-face meetings with local police officers, Mr. Deslauriers would have looked better and may have won the job. Furthermore, when the decision-makers reviewed Mr. Podschlne's reports, because they were more detailed than Mr. Deslauriers', they were able to better understand their substance and preferred them. Whether, if they had asked, the decision-makers would have accepted Mr. Deslauriers' explanation about his report writing style cannot be known, but they did not ask.

There is no evidence that the decision-makers measured the quality of the writing against a Border Patrol stylebook on written reports or any other objective standard. If the Border Patrol had informed the agents that their report writing was going to be measured against a certain style manual or its ease of comprehension by a person unfamiliar with the unit's activities, the agents would have been on notice and their ability to conform with expected standards would be fairly judged. But, neither Mr. Podschlne nor Mr. Deslauriers knew anything about these standards because there were none. It was mostly happenstance that the decision-makers preferred Mr. Podschlne's report writing over Mr. Deslauriers' report writing.

Finally, the Border Patrol favored a positive management style, which is certainly beneficial, but has the unintended effect of lulling agents into a false sense of confidence in their performance. More particularly, as evidenced in this case, the uncritical approach does not give agents an opportunity to improve.

All these factors led to an employment decision that was an unpleasant surprise to Mr. Deslauriers. The key factor in the selection process — report writing — was subjective, undisclosed, and determinative. From the Court's perspective, it is understandable that Mr. Deslauriers perceived the result as unfair, became disgruntled, and concluded that the explanation must have been grounded in the impermissible criterion of age. Nevertheless, imperfections in an employment process do not amount to age discrimination under the ADEA if the imperfections are not based on age. Here, Mr. Deslauriers has demonstrated that the Border Patrol's promotion process was flawed, but not that it was discriminatory.

To be clear, the Court here is making no comment on Mr. Podschlne's qualifications, only upon the Border Patrol process. If the selection process had been more transparent, if the standards had been clear, and if the Border Patrol had been more conscious of the importance of the appearance of fairness, Mr. Podschlne might well still have ended up as the successful candidate. Both Mr. Podschlne and Mr. Deslauriers are good agents and have served this Country honorably and well. The Court's concern is the quality of the selection process, not the quality of the two men. There is a lesson here for the Border Patrol: unless its promotion process is scrupulously fair and transparent, it will continue to send unintended signals to good employees like agents Podschlne and Deslauriers when they are unsuccessful in competitive employment decisions. The Court is convinced that none of the three Border Patrol supervisors, Mr. Zetts, Mr. Richardson, and Mr. Sills, set about to devise and carry out a flawed selection process. However, by making an ad hoc decision to elevate report writing over all other qualifications, by applying subjective standards to the report writing, and by never informing the candidates that report writing would make a critical difference, the decision-makers inadvertently created an appearance of unfairness that lingered and resulted in the initiation of this legal action.

B. Retaliation

Mr. Deslauriers also claims that the Border Patrol retaliated against him for filing his ADEA claim by not assigning him to the Situation Room detail. Compl. at 6 (Docket # 1). The ADEA protects individuals who invoke its protection. 29 U.S.C. § 623(d) ("It shall be unlawful for an employer to discriminate against any of his employees . . . because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter."). As in the ADEA, where there is no direct evidence of retaliation, the First Circuit applies the McDonnell Douglas burden-shifting framework. Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 472 (1st Cir. 2010); Ramírez Rodríguez v. Boehringer Ingelheim Pharms. Inc., 425 F.3d 67, 84 (1st Cir. 2005) ("Where there is no direct evidence of retaliation, our analysis of a claim under § 623(d) closely tracks the McDonnell Douglas framework.").

1. Prima Facie

To establish a prima facie case of retaliation, Mr. Deslauriers must show that 1) "he engaged in ADEA-protected conduct"; 2) "he was thereafter subjected to an adverse employment action"; and, 3) "a causal connection existed between the protected conduct and the adverse action." Mesnick, 950 F.2d at 827. Mr. Deslauriers meets the first prong of the prima facie case with his filing of an EEOC complaint. See Sabinson v. Trs. of Dartmouth Coll., 542 F.3d 1, 3-4 (1st Cir. 2008) (stating without discussion that EEOC complaint was protected conduct). The Government contends that Mr. Deslauriers cannot meet the other two prongs because "the denial of the Situation Room detail was not an adverse action . . . and there is no causal connection between the protected activity and the denial of the Situation Room detail." Def.'s Mem. at 45.

The test for whether an employment action is adverse is whether the action "might have dissuaded a reasonable employee from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations and citation omitted). In Burlington Northern, Sheila White was hired as a track laborer, requiring her to remove and replace track components, transport track material, cut brush, and clear litter and cargo spillage from the right-of-way, but she was soon assigned to primarily operate the forklift. Id. at 57. After Ms. White complained to officials about sexual-harassment from her immediate supervisor, she was removed from her forklift duty and assigned only standard track laborer tasks. Id. at 58. Ms. White filed an EEOC complaint arguing that the reassignment constituted retaliation for her earlier complaint. Id. The employer railroad argued that the anti-retaliation provision was coterminous with Title VII's substantive antidiscrimination provision and was similarly limited to conduct that "affects the employees `compensation, terms, conditions, or privileges of employment.'" Id. at 61 (quoting 42 U.S.C. § 2000e-2(a)(1)). Rejecting the railroad's argument, the Supreme Court found that whereas the goal of equal employment opportunities could be achieved by focusing on only the employer's actions that effect employment, an anti-retaliation provision "limited to employment-related actions would not deter the many forms that effective relation can take." Id. at 63-64. The Supreme Court upheld the jury verdict in favor of Ms. White because the circumstances of the case could have led "a jury [to] reasonably

conclude that the reassignment of responsibilities would have been materially adverse to a reasonable employee." Id. at 71.

In Billings v. Town of Gafton, 515 F.3d 39 (1st Cir. 2008), the First Circuit overturned summary judgment based on the test for material adversity described in Burlington Northern. In Billings, the former secretary to the Town Administrator alleged retaliation after she was transferred to a job as secretary in the Town's recreation department. Id. at 40-44. The district court granted summary judgment against the plaintiff because it found that the transfer "was not in substance a demotion and did not otherwise involve material changes in her work environment." Id. at 46 (quoting Billings v. Town of Gafton, 441 F.Supp.2d 227, 244 (D. Mass. 2006)). Instead, the First Circuit found that the plaintiff "came forward with enough objective evidence contrasting her former and current jobs to allow the jury to find a materially adverse employment action," including differences in prestige, contact with others, and required experience and qualifications. Id. at 53-54. Other circuits have applied the Burlington Northern test for material adversity to ADEA retaliation claims. See, e.g., Brown v. Northside Hosp., 311 Fed. Appx. 217, 224 (11th Cir. 2009); Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n. 2 (10th Cir. 2006); Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199, 201 (2d Cir. 2006).

Although a close question, the denial of the Situation Room detail constitutes a materially adverse employment action. Not all details are desirable, but some are highly coveted. Tr. 317:5-12. Nine people from the Calais station applied for the Situation Room detail. Ex. 23. Although providing no tangible promotion or employment benefits, the location of the Situation Room increased the likelihood of interacting with senior Border Patrol officers. Tr. 182:8-19. There was also the chance of meeting agents from other sectors and reestablishing past connections. Id. 317:5-12. Denying a desirable detail placement is not the type of "normally petty slights, minor slights, and simple lack of good manners" the Supreme Court meant to exclude by requiring materiality. Burlington N., 548 U.S. at 68; Lockridge, 597 F.3d at 472-73 (finding that office assignment could constitute retaliation).

Mr. Deslauriers has also shown causation. The First Circuit recognizes that "temporal proximity alone can suffice to `meet the relatively light burden of establishing a prima facie case of retaliation.'" Decaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008) (quoting Mariani-Colon v. Dep't of Homeland Sec. ex rel Chertoff, 511 F.3d 216, 224 (1st Cir. 2007)). Although stating that the temporal proximity must be "very close," Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004), the First Circuit has found a three-month gap sufficient. Mariani-Colon, 511 F.3d at 224; Speckin v. Nestle Waters N. Am. Inc., Civil No. 08-149-P-S, 2009 WL 465988, at *11 (D. Me. Feb. 24, 2009), aff'd, 2009 WL 905611 (D. Me. April 2, 2009 (stating that a lapse of two and three months could establish the requisite causal connection).

Here, Mr. Deslauriers filed his charge of discrimination with the EEOC on December 5, 2005. Ex. 14. Ms. Rogers was selected for the situation room detail in February 2006, approximately two months after Mr. Deslauriers filed his charge. Tr. 196:17-197:3. Because the adverse employment action occurred within two months of the EEOC filing, Mr. Deslauriers has established a causal connection and meets his prima facie case.

2. Legitimate Reason

The Border Patrol has met its burden of asserting a legitimate non-discriminatory reason for the selection of Ms. Rogers. Mr. Astle asserted that Ms. Rogers was selected because the Border Patrol wanted to share the opportunity for out-of-sector details among the agents. Id. 169:9-14. Mr. Deslauriers concedes that this is a legitimate reason "to select someone other than Deslauriers for the situation room detail." Def.'s Mem. at 46.

3. Pretext

Because the Border Patrol provided a legitimate reason for its non-selection of Mr. Deslauriers, "the presumption of discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer's stated reason for the challenged actions was in fact a pretext for retaliating." Billings, 515 F.3d at 55 (quoting Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir. 2005)). Mr. Deslauriers urges the Court to find pretext because "[a]pplying the factors that determine which employee is awarded a detail . . . clearly favor Deslauriers." Pl.'s Mem. at 47. He argues that he was more senior than Ms. Rogers and there was more of a demand for Ms. Rogers at the Calais station because of her recruitment training. Id. at 47-48. Furthermore, he contends that the Border Patrol's goal in giving all agent opportunities to serve on out-of-sector details did not favor Ms. Rogers: both candidates had gone on a significant number of details and Ms. Rogers had been on a detail more recently than Mr. Deslauriers. Id. at 47. Finally, he urges the Court to find that Mr. Zetts' testimony lacks credibility because he "testified that he could remember virtually nothing about the selection and while conceding that he made the ultimate determination was evasive and vague about his role." Id. at 48.

Mr. Deslauriers essentially asks the Court to weigh the factors identified by the Border Patrol as relevant to detail selection and find that Mr. Deslauriers was more qualified. Although this type of second-guessing is difficult and disfavored in the context of merit-based employment decisions, it becomes incoherent in non-merit based contexts. The Border Patrol was given broad discretion to select agents for details. Tr. 164:16-165:2. Although the Border Patrol loosely considered certain factors in selecting the candidate, the critical factor in the selection varies depending on the context. Id. 164:1-15. Here, the Border Patrol picked Ms. Rogers because she had applied and not been selected for several details and had fewer total details than Mr. Deslauriers. Id. 169:4-170:1. The Court must not substitute its own business judgment on this decision, and there is no objective criteria by which it could. Mr. Deslauriers has failed to prove that the Border Patrol's legitimate reason for choosing Ms. Rogers is pretextual.

III. CONCLUSION

The Court concludes that the United States Border Patrol did not discriminate on the basis of age when it did not promote Mr. Deslauriers to be the Lead Border Patrol Agent for the Calais station and did not retaliate against him when it selected another agent for the situation room detail. The Court GRANTS judgment against Jeffrey Deslauriers and in favor of Defendant United States of America.

SO ORDERED.

Dated this 17th day of September, 2010