Cecilia Mikla v. Lucent Technologies

OHIO CIVIL RIGHTS COMMISSION
IN THE MATTER OF:
CECILIA MIKLA
Complainant
Complaint No. 9342
v. (COL) A1021201 (28654) 08072001
22A – 2001 – 3677 – C
LUCENT TECHNOLOGIES, INC.
Respondent
ADMINISTRATIVE LAW JUDGE'S FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDATION
NANCY H. ROGERS
ATTORNEY GENERAL
Stefan J. Schmidt, Esq. Julie Badel, Esq.
Assistant Attorney General Epstein, Becker & Green
Civil Rights Section 150 N. Michigan Avenue, 35th
Floor
State Office Tower, 15th Floor Chicago, IL 60601-7553
30 East Broad Street 312 – 499 – 1418
Columbus, OH 43215-3428
614 – 466 – 7900 Counsel for Respondent
Counsel for the Commission
Frederick M. Gittes, Esq. Cecilia Mikla
Gittes & Schulte 941 Lang Drive
723 Oak Street Gahanna, OH 43230
Columbus, OH 43205
614 – 222 – 4735 Complainant
Counsel for Complainant
ALJ'S REPORT BY:
Denise M. Johnson
Chief Administrative Law Judge
Ohio Civil Rights Commission
State Office Tower, 5th Floor
30 East Broad Street
Columbus, OH 43215-3414
614 – 466 – 6684

1
INTRODUCTION AND PROCEDURAL HISTORY
Cecilia Mikla (Complainant) filed a sworn charge affidavit with
the Ohio Civil Rights Commission (Commission) on August 7, 2001.
The Commission investigated the charge and found probable
cause that Lucent Technologies, Inc. (Respondent) engaged in
unlawful employment practices in violation of Revised Code Section
(R.C.) 4112.02(A).
The Commission attempted, but failed to resolve this matter
by informal methods of conciliation. The Commission subsequently
issued a Complaint on July 11, 2002. The Complaint alleged that
Respondent terminated Complainant for reasons not applied
equally to all persons without regard to their age.
Respondent filed an Amended Answer to the Complaint on
November 14, 2002.1 Respondent admitted certain procedural
1 On September 22, 2003, Counsel for Respondent filed a Motion to
Withdraw and Leave to File Substituted Appearance, substituting Peter A.
Steinmeyer and Deepa Rajkarne. On October 6, 2003, Respondent filed a
Motion to Add Additional Counsel for Respondent, Julie Badel. A Joint Motion

2
allegations, but denied that it engaged in any unlawful
discriminatory practices. Respondent also pled affirmative
defenses.
A public hearing was held on April 27-29, 2005.2
The record consists of the previously described pleadings, a
626-page transcript of the hearing, exhibits admitted into evidence
during the hearing, stipulated exhibits submitted after the hearing,
and post-hearing briefs filed by the Commission on July 31, 2006;
by Respondent on October 13, 2006, a reply brief filed by the
Commission on December 4, 2006, and Complainant’s brief filed
December 12, 2006.
for Continuance was filed on September 12, 2003 for additional time to engage
in discovery due to substitution of counsel. On November 11, 2003, Counsel
for Complainant filed a Motion for Continuance; Complainant was
out-of-country during May 2004. The hearing was rescheduled to July 7-9,
2004. On April 30, 2004, Respondent filed a Motion for Leave to File An
Amended Answer. On May 11, 2004, a Joint Motion for Continuance was filed
for additional time to conduct discovery. The hearing was rescheduled to
October 21-22, 2004.
2 On April 27-28, 2005 the hearing was held at 1111 East Broad Street,
Columbus, Ohio. On April 29, 2005 the hearing was held at Lucent
Technologies, 6200 East Broad Street, Columbus, Ohio.

3
FINDINGS OF FACT
The following findings of fact are based, in part, upon the
ALJ’s assessment of the credibility of the witnesses who testified
before her in this matter. The ALJ has applied the tests of
worthiness of belief used in current Ohio practice. For example,
she considered each witness’s appearance and demeanor while
testifying. She considered whether a witness was evasive and
whether his or her testimony appeared to consist of subjective
opinion rather than factual recitation. She further considered the
opportunity each witness had to observe and know the things
discussed, each witness’s strength of memory, frankness or lack of
frankness, and the bias, prejudice, and interest of each witness.
Finally, the ALJ considered the extent to which each witness’s
testimony was supported or contradicted by reliable documentary
evidence.
1. Complainant filed a sworn charge affidavit with the
Commission on August 7, 2001.

4
2. The Commission determined on June 13, 2002 that it
was probable that Respondent engaged in unlawful discrimination
in violation of R.C. 4112.02(A).
3. The Commission attempted to resolve this matter by
informal methods of conciliation. The Commission issued the
Complaint after conciliation failed.
4. Complainant was born on May 17, 1956.
5. Complainant started working for American Telephone
and Telegraph (AT&T) in 1979.
6. Respondent Lucent Technology came into existence after
it was divested from AT&T in 1996.3
7. In February of 2000 Complainant was the Product
Manager on the OMPFX.
3 At the time of the divestiture Respondent had approximately 135,000
employees.

5
8. The OMPFX is a piece of equipment that is used in the
telecommunications industry to monitor cell phone sites for
telephone companies that offer cellular services.
9. In February of 2000 Complainant reported to Jacqueline
Boggs (Boggs).
10. Complainant received a performance appraisal from
Boggs in November of 2000 for the fiscal year ending in September.
11. The performance appraisal system in use consisted of
two parts: GPP–1, “Objectives and Appraisal Form”, and GPP–2,
“Performance Appraisal Matrix”. The GPP–2 was the performance
rating component of the performance appraisal system.
12. Respondent rated its employees along a bell curve where
top performers, a small percentage of the population, were rated “1”
and “2”.
13. Complainant received a rating of “3” on her 2000
performance appraisal given by Boggs.

6
14. In September or October of 2000 Fred Chavis (Chavis)
became Complainant’s immediate supervisor.
15. On January 24, 2001, Respondent’s CEO, Henry Schacht
(Schacht), informed the employees that disappointing revenues for
the first quarter of Fiscal Year 2001 resulted in a plan to cut costs
by two billion dollars, including reducing approximately 10,000
positions.
16. Respondent’s Human Resources Department (HR) used an
electronic computerized tool to assist management in assessing
employees. Employees were grouped into universes.
17. The universe that Complainant was finally placed in
consisted of four other employees, all of whom were under the age
of 40 at the time of the skills assessment.
18. Complainant received an assessment of “1.9” which
placed her “at risk” based on “lower performance”.

7
19. Respondent implemented the Forced Management Plan
(FMP) on February 15, 2001. The FMP targeted the termination of
2,000 employees.
20. The employees selected for the FMP were notified on
February 15, 2001 that they were “at risk” of termination if they did
not find another job with Respondent in the next sixty (60) days.
21. Complainant applied for eleven (11) jobs with Respondent
over the two-month period she was at risk.
22. Complainant did not get any of the positions, either
because she was not the successful candidate or the job remained
unfilled and the openings were cancelled due to Respondent’s
financial condition.

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CONCLUSIONS OF LAW AND DISCUSSION
All proposed findings, conclusions, and supporting arguments
of the parties have been considered. To the extent that the
proposed findings and conclusions submitted by the parties and the
arguments made by them are in accordance with the findings,
conclusions, and views stated herein, they have been accepted; to
the extent they are inconsistent therewith, they have been
rejected. Certain proposed findings and conclusions have been
omitted as not relevant or as not necessary to a proper
determination of the material issues presented. To the extent that
the testimony of various witnesses is not in accord with the findings
therein, it is not credited.
1. The Ohio Civil Rights Commission has jurisdiction over
the parties and the subject matter of this case.
2. The parties and the Commission have fully complied with
the procedural prerequisites to a public hearing in this case.

9
3. Complainant is an employee within the meaning of R.C.
4112.01(A)(3).
4. Respondent is an employer within the meaning of the
R.C. 4112.01(A)(2).
5. The Commission alleged in the Complaint that
Respondent terminated Complainant for reasons not applied
equally to all persons without regard to their age.
6. This allegation, if proven, would constitute a violation of
R.C. 4112.02, which provides, in pertinent part, that:
It shall be an unlawful discriminatory practice:
(A) For any employer, because of the … age, … of any
person, to discharge without just cause, to refuse to
hire, or otherwise to discriminate against that
person with respect to hire, tenure, terms,
conditions, or privileges of employment, or any
matter directly or indirectly related to employment.
R.C. 4112.01(A)(14) defines age as “at least forty years old.”
7. The Commission has the burden of proof in cases
brought under R.C. Chapter 4112. The Commission must prove

10
a violation of R.C. 4112.02(A) by a preponderance of reliable,
probative, and substantial evidence. R.C. 4112.05(G) and
4112.06(E).
8. Federal case law generally applies to alleged violations of
R.C. Chapter 4112. Columbus Civ. Serv. Comm. v. McGlone (1998),
82 Ohio St.3d 569. Therefore, reliable, probative, and substantial
evidence means evidence sufficient to support a finding of unlawful
discrimination under the Age Discrimination in Employment Act of
1967 (ADEA).
9. Under ADEA and Title VII case law, the Commission is
normally required to first establish a prima facie case of unlawful
discrimination by a preponderance of the evidence. McDonnell
Douglas Co. v. Greene, 411 U.S. 792 (1973). The proof required to
establish a prima facie case may vary on a case-by-case basis. Id.,
at 802.
10. The burden of establishing a prima facie case is not
onerous. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1961).

11
11. The establishment of a prima facie case creates a
rebuttable presumption of unlawful discrimination. Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981).
12. Once the Commission establishes a prima facie case, the
burden of production shifts to Respondent to “articulate some
legitimate, nondiscriminatory reason” for the employment action.4
McDonnell Douglas, supra at 802. To meet this burden of
production, Respondent must:
… “clearly set forth, through the introduction of
admissible evidence,” reasons for its actions which, if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the
employment action.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507
(1993), quoting Burdine, supra at 254-55.
4 Although the burden of production shifts to Respondent at this point,
the Commission retains the burden of persuasion throughout the proceeding.
Burdine, supra at 254.
The defendant’s burden is merely to articulate through some
proof a facially nondiscriminatory reason for the termination;
the defendant does not at this stage of the proceedings need to
litigate the merits of the reasoning, nor does it need to prove that
the reason relied upon was bona fide, nor does it need to prove
that the reasoning was applied in a nondiscriminatory fashion.
EEOC v. Flasher Co., 986 F.2d 1312, 1316 (10th Cir. 1992)
(citations and footnote omitted).

12
The presumption created by the establishment of a prima facie case
“drops out of the picture” when the employer articulates a
legitimate, nondiscriminatory reason for the employment action.
Hicks, supra at 511.
13. In order for the Commission to establish a prima facie
case of age discrimination under R.C. 4112.02(A), it must establish
the following facts:
1. Complainant is a member of the statutorily
protected class;
2. Complainant was discharged;
3. Complainant was qualified for the position; and
4. Complainant was replaced by, or the discharge
permitted the retention of, a person of substantially
younger age.
Kohmescher v. Kroger Co., (1991), 61 Ohio St.3d 501, 575
N.E. 2d 439.
14. There is no dispute that Complainant is a member of the
statutorily protected class or that Complainant was discharged.
Therefore, the Commission has established the first two elements of
a prima facie case of age discrimination.

13
15. The Commission also established that Complainant was
qualified for the position.
16. When subjective evaluations play a role in employment
decisions, employees are not required to show that they possessed
certain subjective qualifications as part of proving a prima facie
case. Such issues are properly resolved in the pretext stage of the
McDonnell Douglas framework.
Thus, to deny the [Complainant] an opportunity to move
beyond the initial stage of establishing a prima facie case
because [she] failed to introduce evidence showing [she]
possesses certain qualities would improperly prevent the
court from examining the criteria to determine whether
their use was mere pretext.
Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995).
17. The Commission also established the fourth element of a
prima facie case of age discrimination, “that the discharge permitted
the retention of a substantially younger person”. Complainant’s job
duties were distributed to Mark Thomas (Thomas), age 26.

14
18. Respondent met its burden of production with evidence
that Respondent needed to reduce the workforce in response to
Respondent’s fiscal crisis, and Complainant’s low assessment was
the basis for her layoff.
19. Respondent having met its burden of production, the
inquiry moves to the ultimate issue of the case, i.e., whether
Respondent terminated Complainant because of her age. Hicks,
supra at 511. The Commission must show by a preponderance
of the evidence that Respondent’s articulated reasons for
Complainant’s layoff were not the true reasons, but were “a pretext
for discrimination.” Id., at 515, quoting Burdine, supra at 253.
[A] reason cannot be proved to be a “pretext for
discrimination” unless it is shown both that the reason is
false, and that discrimination is the real reason.
Hicks, supra at 515.
20. Thus, even if the Commission proves that Respondent’s
articulated reasons are false or incomplete, the Commission does
not automatically succeed in meeting its burden of persuasion:
That the employer’s proffered reason is unpersuasive, or
even obviously contrived, does not necessarily establish
that the … [Commission’s] proffered reason of … [age] is
correct. That remains a question for the factfinder to
answer ….

15
Id., at 524.
Ultimately, the Commission must provide sufficient evidence for the
fact-finder to infer that Complainant was, more likely than not, the
victim of age discrimination.
21. In order to show pretext, the Commission may directly or
indirectly challenge the credibility of Respondent’s articulated
reasons for Complainant’s layoff. The Commission may directly
challenge the credibility of Respondent’s articulated reasons by
showing that the reasons had no basis in fact or they were
insufficient to motivate the employment decision. Manzer v.
Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.
1994). Such direct attacks, if successful, permit the fact-finder to
infer intentional discrimination from the rejection of the reasons
without additional evidence of unlawful discrimination.
The factfinder’s disbelief of the reasons put forward by
the defendant (particularly if disbelief is accompanied by
a suspicion of mendacity) may together with the elements
of the prima facie case, suffice to show intentional
discrimination. Thus, rejection of the defendant’s
proffered reasons will permit the trier of fact to infer

16
the ultimate fact of discrimination, and … no
additional proof of discrimination is required.5
Hicks, supra at 511, (bracket removed); See also Reeves
v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097,
2108 (2000).
22. The Commission may indirectly challenge the credibility
of Respondent’s reasons by showing that the sheer weight of the
circumstantial evidence makes it “more likely than not” that
the reasons were a pretext for age discrimination. Manzer, supra
at 1084. This type of showing, which tends to prove that the
reasons did not actually motivate the employment decision, requires
the Commission produce additional evidence of unlawful
discrimination besides evidence that is part of the prima facie case.
Id.
23. Respondent was unable to produce the GPP–2 for the
employees in Complainant’s universe.
24. At the hearing, the ALJ granted the Commission’s motion
to hold an adverse inference against Respondent for the failure to
produce those documents:
5 Even though rejection of a respondent’s articulated reason is “enough
at law to sustain finding of discrimination, there must be a finding of
discrimination.” Hicks, supra 511, n.4.

17
(…) where relevant information … is in the possession of
one party and not provided, then an adverse inference
may be drawn that such information would be harmful to
the party who fails to provide it.
Clay v. United Parcel Service, Inc., (6th Cir., August 31,
2007), 2007 WL 2457455, citing McMahan & Co. v.
PoFolks, Inc., (6th Cir. 2000), 206 F.3d 627, 632-33.
25. Respondent used an E-Comp system which was their
corporate compensation system as explained by Regina Fico, Senior
Manager in Human Resources:
Ms. Fico: The e-comp system was our corporate
compensation system that we used. At the end of each
performance year we did salary reviews. We did
performance reviews and the managers at that time when
they were doing the reviews put in the ratings and the
salary information for all of their employees.
(Tr. 363)
26. The information from the GPP-2s was also inputted into
the E-Comp system by the individual managers. Human Resources
did not collect the paper GPP-2 evaluations from individual
managers:
Mr. Schmidt: So, if I wanted to check and make sure
whether that “GPP2” that they entered was accurate or
inaccurate, isn’t the only thing that I could do would be
to look at the actual piece of paper, the “GPP2” and
compare it to what that manager put into the system?

18
Ms. Fico: Umm … I don’t know where else you would
have the information. They would put it into the system
that was the data base of the record. That was how we
collected the information. We didn’t collect the pieces of
paper.
(Tr. 364-65)
27. Ms. Fico testified very credibly about her observation of
the record-keeping system in place at that time:
Ms. Fico: You know, again we are going through a huge
turmoil at the time back in 2000, 2001. And supervisors
although instructed to, if they left the company they
needed to archive those files and send those to Iron
Mountain, who is the vendor that we use to archive all of
that information. We couldn’t be guaranteed that it
happened all of the time.
(Tr. 357)
28. The credible testimony of Respondent regarding the
record-keeping system in place at the time and the turmoil that
Respondent was going through was persuasive evidence that the
missing GPP-2s were not intentionally lost.
29. Fred Chavis, Complainant’s immediate supervisor in
October 2000, reported to Jim Smith (Smith). Smith reported to

19
Mike Iandola (Iandola). Iandola was the executive over Smith and
Chavis.
30. Other than Complainant, none of the employees in her
universe reported to Smith or to anyone who reported to him and
Chavis was not involved in assessing the other employees in the
universe in which Complainant was placed. (Tr. 576; Tr. 434)
31. Ms. Fico testified about what happened after the managers
had done individual assessments:
Ms. Fico: Well, I collected them all back so I have got the
information that came from Mr. Smith’s organization as
well as all the other organizations under Mike Iandola’s
organization, then I compiled those into exhibit, (…) 25.
(Tr. 345)
32. Ms. Fico also testified that she did not provide Smith with
information as to what employees were placed in the same universe
with employees under him. (Tr. 345)
33. The timeline and work plan for implementing the
February 2001 FMP in Sales and Marketing, of which Inadola’s
organization was a part, also reflected that the new organization

20
design was to include the levels and geographical location of
employees. (Tr. 328, Resp. Ex. 22)
34. Proof of disparate treatment requires similarly situated
comparatives. The Commission must show that the comparatives
were “similarly situated in all respects”:
Thus to be deemed “similarly situated”, the individuals
with whom … [Complainant] seeks to compare … her
treatment must have dealt with the same supervisor, and
have been subject to the same standards, and have
engaged in the same conduct without such differentiating
and mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it.
Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir.
1992) (citations omitted).
35. The other four employees in Complainant’s universe,
(Brady, Haworth, Ogg and Alexander), did not report to Chavis.
Brady, Haworth, and Alexander reported to Ypsilantis and Ogg
reported to Newman. (Resp. Ex. 25)
36. Since the comparatives in Complainant’s universe were
not ranked by Chavis, they are not “similarly situated”
comparables.

21
37. The Commission also attempted to show pretext by
asserting that the universes used for the 2001 FMP were somehow
manipulated to make geography a component of the universes,
contrary to Complainant’s recollection of how universes were
created during her tenure in HR.
38. However, the credible evidence introduced by Respondent
shows that geography was a component of all the FMP universes in
the Inadolo organization. (Resp. Ex. 24, 25)
39. The evidence shows that Complainant was not replaced.
Instead, Mark Thomas absorbed Complainant’s duties, in addition
to the duties he performed prior to being given Complainant’s
duties.
[A] person is not replaced when another employee is
assigned to perform the plaintiff's duties in addition to
other duties, or when the work is redistributed among
other existing employees already performing related
work.
Barnes v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir.
1990).

22
40. Mark Thomas, who was supervised by Complainant,
worked on the OMPFX while he was located in Naperville, Illinois.
Ms. Badel: Immediately after Ms. Mikla’s termination
who performed her tasks with respect to the “OMPFX”?
Mr. Chavis: Mark Thomas picked up her responsibilities.
Ms. Badel: Why was Mr. Thomas selected to do that?
Mr. Chavis: Well he came from a data team. He had the
“TDMA” circuit “IWF” which was a data application
product. He also had a lot of knowledge on the
(inaudible) platforms and at the core of the “OMPFX” was
a server. And we believed as though he had a skill set
that we could actually utilize in terms of product
management because he understood the platform for the
Sun and he had also worked with Cecilia before from a
purchasing stand point at his prior job.
Ms. Badel: Did Mr. Thomas perform Ms. Mikla’s duties
instead of the duties he performed [sic/before] her
termination?
Mr. Chavis: No.
Ms. Badel: What did he do then?
Mr. Chavis: He basically did the hardware piece of it as
well and he also supported his own “IWF” as well.
(Tr. 575)
41. The Commission offered testimony regarding Complain-
ant’s belief that her performance was superior to the employees who

23
remained employed under Chavis, Smith, and Iandola. This
testimony was offered for the purpose of showing that Respondent’s
reasons for selecting Complainant for layoff were not credible.
42. The testimony of Complainant and her coworker
regarding their opinions of Complainant’s work performance is self-
serving and biased rather than objective, credible evidence:

24
With respect to the opinion testimony, we have repeatedly
explained that it is the perception of the decision
maker which is relevant, not the self assessment
of … [Complainant].” Accordingly, … [Complainant’s]
perception of herself … is not relevant. Similarly, that …
[Complainant’s] co-workers may have the opinion that
she did a good job, or that she did not deserve [to be laid
off] is close to irrelevant.
Dejarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir.
1998) (footnote, citations, and quotations omitted).
It is well settled, however, that … [Complainant’s] own
opinions about her work performance or qualifications do
not sufficiently cast doubt on the legitimacy of her
employer’s proffered reasons for its employment actions.
Ost v. West Suburban Travelers Limousine, 88 F.3d 435,
441 (7th Cir. 1996) (citations omitted).
43. The opinions of Complainant and her coworkers that this
treatment may be based on age are not legally sufficient to support
an argument of pretext. Reynolds v. Land O’Lakes, Inc., 112 F.3d
358, 364 (8th Cir. 1997).
44. Although Respondent’s FMP process was not smooth in
all of its’ aspects, the irregularities pointed out by the Commission
were more evidence of human error (mistake or misunderstanding)

25
in a difficult process than nefarious manipulations to target
Complainant’s position for elimination because of her age.
[C]ourts are not in the position of determining whether a
business decision was good or bad … Title VII is not
violated by erroneous or even illogical business judgment
… An employer’s business judgment is relevant only
insofar as it relates to the motivation of the employer
with respect to the allegedly illegal conduct.
Sanchez v. Phillip Morris, 992 F.2d 244, 247 (10th Cir.
1993) (citations and parentheticals omitted).
45. In general, neither the ALJ nor the Commission is in a
position to second-guess an employer’s business judgment, “except
to the extent that those judgments involve intentional
discrimination.” Krumwiede v. Mercer Co. Ambulance Service, 116
F.3d 361, 364 (8th Cir. 1997) (citations omitted).
[A] plaintiff may not establish that an employer’s
proffered reason is pretextual merely by questioning the
wisdom of the employer’s reason, at least not where, as
here, the reason is one that might motivate a reasonable
employer.
Combs v. Meadowcraft, Inc., 73 FEP Cases 232, 249 (11th
Cir. 1997).
46. This case lacks the “suspicion of mendacity” that is
mentioned in the Hicks case. Hicks, supra at 511. In other words,

26
the ALJ does not believe that Respondent’s articulated reasons are
a cover-up for age discrimination.
47. Respondent’s articulated reasons for not transferring
Complainant were either she was not qualified for the positions that
she sought or the positions in question were not filled due to
financial constraints.
48. The Commission failed to show that similarly situated
younger employees who were subject to the RIF were treated better
than Complainant was.
… plaintiff claiming discriminatory failure to transfer as
part of a reduction in force must proffer ‘direct,
circumstantial, or statistical evidence tending to indicate
that the employer singled out [the plaintiffs] for discharge
for impermissible reasons.’
Barnes, supra at 1465.
49. Anna O’Dea (O’Dea), age 45, an employee who also
reported to Chavis and whose job was eliminated as a result of the
2001 FMP, applied for and received a transfer to a new position.
(Tr. 86-87, 103)

27
50. In an attempt to introduce evidence that Respondent was
seeking younger applicants for a position that was posted after the
2001 FMP was executed, the Commission asserted that
Complainant did not apply for the product management associate
job because Respondent “preferred recent graduates.” (Tr. 186)
51. The preference for recent graduates does not necessarily
translate into a preference for younger employees as many people
go back to college after completing military service or working other
places. (Harding Dep., p. 82-83)

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RECOMMENDATION
For all of the foregoing reasons, it is recommended that the
Commission issue a Dismissal Order in Complaint No. 9342.
DENISE M. JOHNSON
CHIEF ADMINISTRATIVE LAW JUDGE
December 15, 2008