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Cilento v. Chertoff

August 4, 2006


The opinion of the court was delivered by: George A. Yanthis, U.S.M.J.


Plaintiff John Cilento, age fifty-one, is a white Italian-American male. He claims that his employer, the Department of Homeland Security, discriminated against him because of his age, gender, race and national origin in violation of the Age Discrimination in Employment Act of 1967, as amended, ("ADEA") 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Presently before this Court is defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCP").*fn1 For the reasons set forth below, defendant's motion is granted.


The following facts--taken in the light most favorable to plaintiff--are gleaned from the parties' statements pursuant to Local Civil Rule 56.1 of the United States District Courts for the Southern and Eastern Districts of New York, from the pleadings and from affidavits, affirmations and exhibits submitted by the parties in support of their contentions. Any disputes of material fact are noted.

From 1980 to 1985, plaintiff was employed by the United States Federal Protective Service as a Federal Protective Officer. He left that job upon his appointment as a police officer with the City of Yonkers Police Department. Plaintiff was a Yonkers police officer for ten years, until he was injured in the line of duty and retired on disability.

On or about May 18, 2002, plaintiff applied via the Internet for the position of U.S. Customs Inspector, in response to vacancy announcement CH138958. According to the announcement, the Department of Homeland Security, Customs and Border Protection ("CBP") sought to fill full-time positions under the Federal Career Intern Program ("FCIP"); selectees would be appointed at either a GS-5 or GS-7 level, based upon their qualifications. The application contained four questions regarding qualification for the GS-7 position. Although plaintiff thought one of the questions was ambiguous, he answered "no" to all four questions--indicating that he did not have the necessary qualifications or experience for a GS-7 appointment. On the other hand, plaintiff's answers to other questions were sufficient to qualify him for a GS-5 appointment.

Four months later, plaintiff was notified by letter that he had passed the written application; he subsequently interviewed for the position. Approximately one year later, by letter dated October 15, 2003, plaintiff was notified that he had been selected for a Customs Inspector position at the GS-5 level. The letter provided details about the position and included the following statement: "Please note that the grade level and location of the offer have been determined by the selecting official and are not negotiable." Plaintiff accepted the position and began work on October 20, 2003, stationed at Newark Airport.

About one month later, plaintiff called the human resources department in Washington, D.C. and spoke with Supervisory Human Resources Specialist Jerry Tavenner. Plaintiff stated that he had misinterpreted the description of specialized experience on the employment application and requested an upgrade to a GS-7 level. Tavenner explained to plaintiff that his GS level was based upon his answers on the application, which could not be changed after the fact.

On February 9, 2004, plaintiff contacted Tavenner via e-mail and reiterated his request for an upgrade to a GS-7 based on his work experience--which he failed to note on the application because he misunderstood the question regarding specialized experience. Plaintiff added "I understand that at least two individuals in the recent past with the same problem have appealed their case to you and were given a GS-7 rating." Tavenner denied plaintiff's request in an e-mail response, in which he stated: "As you indicated, you only self-certified as a GS-5. Therefore, the only grade for which you may be considered is the GS-5. Briefly, you competed with other folks at the GS-05 level and you were selected based on your referral on a GS-5 certificate of eligibles."

On or about March 26, 2004, plaintiff e-mailed Tavenner again and asked whether anyone at CBP was authorized to "correct" the mistake he had made in qualifying himself only as a GS-5, or whether there was anyone to whom he could appeal the issue. Tavenner, in his e-mail response, stated

Since this was an error you made on your application, no one can "correct" it for you. And once the closing date of the announcement passed, you cannot correct it to allow you to be considered for the higher grade level either. You can apply to a future announcement and correctly complete the application so that you self-certify at a GS-7 level...but odds are, you will have been promoted to the GS-7 level before you would be selected and appointed again at the GS-7 level.

At some point during the next month, plaintiff spoke with one of his supervisors, Lorraine Spina, about his efforts to upgrade his GS level. Spina told plaintiff that she had originally been hired as a GS-5 but was upgraded to a GS-7 after explaining to CBP that she qualified for the higher grade. According to plaintiff, Spina wrote numerous letters and made many phone calls over the course of a year until CBP granted her a retroactive upgrade. Plaintiff states that Spina was hired under the "Veterans Readjustment Act" and, therefore, did not have to qualify herself for a GS grade but had to submit a resume instead.

Based upon his conversation with Spina, plaintiff came to believe that CBP was discriminating against him because of his age and gender. On April 28, 2004, plaintiff contacted an EEO Officer; the parties proceeded to mediation on July 22, 2004. They ultimately agreed on proposed terms of a compromise, pursuant to which plaintiff would be upgraded prospectively to a GS-7 if he indeed had the necessary qualifications and had performed well since his hire.

Approximately two weeks after the mediation session, plaintiff spoke with inspector Caryl Johnson who, according to plaintiff, stated that he had been hired as a GS-5 and retroactively upgraded to a GS-7. Johnson, who is African-American, was hired under the FCIP (as was ...

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