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Frankel v. Peake

October 20, 2009


The opinion of the court was delivered by: William J. Martini Judge



Dear Counsel:

This matter comes before the Court on Defendant James B. Peake's motion for summary judgment. There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendant's motion for summary judgment is GRANTED.


Plaintiff Joshua Frankel, M.D. brings the instant action against James B. Peake, Secretary of the Department of Veterans Affairs ("VA"), alleging violation of the Age Discrimination in Employment Act ("ADEA"). 29 U.S.C. §§ 621 et seq. This litigation stems from the VA's failure to hire Plaintiff Frankel as the Chief of Ophthalmology at the VA Healthcare Systems treatment facility in East Orange, New Jersey ("VANJ").

The following facts are not in dispute. In 2006, VANJ began soliciting applications for the position of Chief of Ophthalmology. (Def.'s Statement of Material Facts ("SMF") ¶ 1; Pl.'s Resp. to Def.'s SMF ¶ 1.) Dr. Richard Stark, then Associate Chief of Staff for Ambulatory Care at VANJ, was in charge of the hiring process. (Declaration of Pamela Perron ("Perron Decl.") Ex. A.)

After posting the job vacancy, Dr. Stark received between nine and twelve applications. (Id.) From this pool of applicants, three were selected for interview: G.R.J., A.G., and Plaintiff Frankel.*fn1 (Id.) Of these three, only Plaintiff Frankel responded to the request and interviewed for the position. (Id.)

Plaintiff Frankel submitted a resume to VANJ as part of his application, which did not list his date of birth. (Perron Decl. Ex. D.) In fact, the resume listed few dates; however, it stated that Plaintiff Frankel was recognized as an "Outstanding Teacher of Ophthalmology" at the University of California at Irvine in 1985. (Id.) In addition, Frankel's resume noted that he did a fellowship in Ophthalmic Plastics at the Massachusetts Eye and Ear Infirmary and a mini-fellowship in Glaucoma at the State University of New York Health Science Center. (Id.)

On September 19, 2006, Plaintiff Frankel interviewed at the VANJ with Dr. Stark and Dr. Marco Zarbin. (Perron Decl. Ex. A ¶ 10a; Perron Decl. Ex. E at 62: 2-4, 62: 24-63: 4; Declaration Marco A. Zarbin, M.D. ("Zarbin Decl.") ¶5.) The tone of this meeting was cordial. (Perron Decl. Ex. E at 65: 4-9.)At no time during the interview did either Dr. Stark or Dr. Zarbin ask Plaintiff Frankel his age.*fn2 (Def.'s SMF ¶ 8; Pl.'s Resp. to Def.'s SMF ¶ 8.) Further, Drs. Stark and Zarbin did not discuss salary, benefits, or a start date for Plaintiff Frankel. (Perron Decl. Ex. E at 87: 25-88: 6, 103: 1-3.)

At the conclusion of the interview, Dr. Stark suggested that Plaintiff Frankel register in the VetPro system. (Perron Decl. Ex. A ¶ 22; Perron Decl. Ex. E at 67: 21-68: 1; Pl.'s Resp. to Def.'s SMF ¶ 10.) VetPro is a computerized system used by Defendant to verify the professional credentials and job history of prospective employees. (Perron Decl. Ex. A ¶ 19; Perron Decl. Ex. G ¶¶ 19, 20; Pl.'s Resp. to Def.'s SMF ¶ 10.) VetPro processing does not confer appointment or employment. (Perron Decl. Ex. G ¶ 19; Pl.'s Resp. to Def.'s SMF ¶ 10.) Instead, the submission of the VetPro form is done before the hiring decision is made and is viewed as one step in the screening process of a prospective employee. (Perron Decl. Ex. G ¶ 19; Pl.'s Resp. to Def.'s SMF ¶ 10.)

Following the interview, Drs. Stark and Zarbin discussed their impressions. In particular, they discussed what they considered Plaintiff Frankel's subspecialty to be -- oculoplastics. (Zarbin Decl. ¶ 6.) Dr. Zarbin told Stark that VANJ's staffing needs would be best addressed by hiring an ophthalmologist specializing in anterior segment.*fn3 (Zarbin Decl. ¶ 7.) Since VANJ already had two oculoplastics specialists on staff, Zarbin contended that the needs of VANJ's patients were sufficiently addressed in that area. (Id. ¶ 8.)

On September 20, 2006 -- the day after his interview -- Plaintiff Frankel mailed his VetPro form to Defendant's credentialing office. (Perron Decl. Ex. E at 68: 9-12.) The VetPro form sent in by Frankel contained his date of birth. (Declaration of Benjamin A. Karfunkel ("Karfunkel Decl.") Ex. G.) Upon receiving Frankel's documentation, an employee in the credentialing office emailed Dr. Stark because she had no record of Frankel. (Karfunkel Decl. Ex. D.) Stark responded quickly to this email and told the credentialing employee to "hold off" on processing Frankel's form. (Id.)

When Plaintiff Frankel did not hear back from Dr. Stark or the credentialing office for several weeks, he wrote a letter to Stark inquiring as to the status of his application. (Perron Decl. Ex. A ¶ 20; Perron Decl. Ex. E at 72: 21-24.) Dr. Stark did not respond. (Id.) Frankel's other follow-up attempts were equally unsuccessful. Plaintiff eventually learned that he was not selected for the Chief of Ophthalmology position after his Congressman intervened. Defendant replied by letter to Congressman Wilson on January 24, 2007 to inform him that Frankel did not receive the job. (Declaration of Benjamin A. Karfunkel, Ex. E.)

On or about December 29, 2006 -- approximately three months after Stark told the credentialing office to "hold off" on Frankel's VetPro processing -- VANJ received a resume in the mail from Dr. L. (Perron Decl. Ex. F.) When Dr. L. applied, he was unaware that there was a position open at the VANJ. (Karfunkel Decl. Ex. B at 46: 3-9.)After being interviewed by Drs. Stark and Zarbin, Dr. L. was hired as Chief of Ophthalmology on or around March 1, 2007. (Def.'s SMF ¶ 17.) At the time of hire, Dr. L. was approximately thirty-four years old. (Perron Decl. Ex. F.)

On March 16, 2007, Plaintiff Frankel filed an administrative complaint of employment discrimination. (Perron Decl. Ex. I.) In lieu of filing a formal EEOC complaint, Plaintiff filed the instant action on July 30, 3007, over ...

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