It's not discrimination if standards aren't met
Published 12/06/07

 A New Hampshire federal court decision helps illustrate that age discrimination employment laws do not require employers to lessen job standards for older workers.

In the case of Paul H. Cossette v. Michael Johanns , Secretary , U.S. Department of Agriculture, Cossette claimed that he was discriminated against based upon his age in that the USDA refused to hire him as a Forest Service Resource Assistant in the White Mountain National Forest in Laconia , New Hampshire . He was 60 years old at the time.

The USDA filed a Motion for Summary Judgment seeking to deny Cossette the right to go to a jury trial and the Court agreed in a decision dated December 3, 2007.

The job requirements for a Forest Service Resource Assistant include a skill in all forms of communication techniques to enable effective information exchange with recreation permit applicants and forest personnel, maintaining responsibility for the accuracy of all records in the Forest Land Use Reports database including preparing specialized and statistical reports for the District and Staff, initiating action for permit renewals, and serving as a procedural and technical specialist providing support in the areas of special-use permits.

Cossette, was in active duty in the United States Marine Corps. from 1959 to 1963, worked as a clerk for an engineering firm from 1966 to 1969, and worked for series of banks from 1966 to 1993. From 1966 to 1993, Cossette asserts that he thrived in the banking world eventually attaining the position of bank vice president, commercial lender, and lending supervisor.

In these positions, Cossette communicated with customers and supervised other employees, used word processing, conducted complex credit analysis, and account profitability analysis 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 maintenance as a part of the Forest Service's Senior Community Service Employment Program which is a program of the Department of Labor which provides minimum wage, part-time employment to persons over the age of 55 to assist them in updating or developing their work and work-application skills in which workers perform maintenance tasks, interact with visitors, and perform various tasks as needed.

In order for Cossette to prove age discrimination employment under federal law, he needed to establish that he was at least 40 years old, was qualified for a Forest Service Resource Assistant position, was not selected for the position, and the Forest Service did not treat age neutrally in the selection process.

The USDA argued that Cossette could not establish he was qualified for the Resource Assistant position because the evidence in the record unambiguously demonstrated that he was unqualified. The Court agreed. The USDA's requirement for the job required that he be equipped with the particular knowledge, skills, and ability to perform successfully the duties of the position and that is not satisfied by merely showing that the applicant has a high-level cognitive level of functioning or aptitude for learning on the job.

The Court noted that although Cossette's experience as a commercial lender and bank vice president suggest that he has a high level of cognitive functioning and possesses many skills specific to the banking industry, he failed to show how his banking experience could have provided him with the forest management skills, familiarity with special use permits or other skills specific to the forest-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, however, being a fast learner is not the same as having the requisite experience.

Cossette also claimed that the specialized experience requirement was a pretext for age discrimination; however, he failed to show that it was developed with an age-discriminatory purpose in mind. Cossette merely argued that the specialized experience is not an irreducible requirement for the job.

However, the Court pointed out that courts do not sit as a super personnel department assessing the merits or even the rationality of an employer's non-discriminatory business decision. Without evidence that the requirement sprang from an age-discriminatory animus, Cossette's pretext argument was unavailing. Therefore, the Court ordered that he is not permitted to go forward with a jury trial on his case against the USDA.

This case is a very helpful reminder to employers that providing written job descriptions with the specific requirements of a job makes good business and legal sense.

J. Daniel Marr is a director and shareholder of Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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