In Reeves v. MV Transportation, Inc., (— Cal.Rptr.3d —-, Cal.App. 1 Dist., July 9, 2010), a California Court of Appeal considered whether a 56-year old attorney stated a claim for employment discrimination against a company that hired a younger attorney to fill a staff attorney position. The court of appeal held that the attorney failed to state a claim for employment discrimination because he did not have “clearly superior paper credentials” in comparison to the attorney who was hired and the employer did not offer inconsistent justifications for its hiring decision.
John Biard (“Biard”) was general counsel and chief legal officer for MV Transportation, Inc. (“MV Transportation”) when he posted a notice on a website for a staff attorney position with the company. The notice stated that the company was looking for an attorney experienced “in traditional labor law and employment litigation to report to the General Counsel/Chief Legal Officer.” The “Requirements” section of the notice stated, “Qualified candidates should demonstrate substantial experience representing management in labor/management issues; practice before the NLRB; grievance and arbitration under CBAs; collective bargaining and/or counseling of clients with CBA/labor dispute issues, and proven employment litigation experience, including responding to administrative agency civil rights actions . . . .” Approximately 60 people applied for the advertised position.
Gail Blanchard-Saiger was hired for the position. Her resume indicated that prior to attending law school she worked four years as a human resources manager during which time she implemented personnel policies and assisted with union contract negotiations. She graduated law school in the top five percent of her class at UC Davis. She is a member of the bar in both New York and California, she clerked for a federal judge, and she has worked in private practice where she has counseled clients on all aspects of labor and employment law.
David B. Reeves also applied for the staff attorney position. Reeves, who was at the time 56 years old and employed by the National Labor Relations Board (“NLRB”), sent Biard his resume from his work e-mail address during work hours. Reeves’ resume indicated he is experienced in all areas of labor and employment law and has represented clients in over 350 labor arbitrations. Reeves worked for the NLRB from 1973 to 1975, for Kaiser Industries and Kaiser Steel Cooperation from 1975 to 1985, for Sempra Energy from 1985 to 2002, and resumed his employment with the NLRB in 2003.
Biard was “put off to receive an e-mail from a taxpayer supported government office during working hours.” Reeves called Biard to confirm Biard received his resume. Biard did not promise Reeves an interview during their conversation. Biard never interviewed Reeves and instead hired Blanchard-Saiger, who was 40 years old at the time she was hired. Biard claimed he conducted “maybe four interviews” and had two other interviews pending when he interviewed Blanchard-Saiger. Blanchard-Saiger had been recommended by someone Biard knew and respected. Biard claimed he did not interview Reeves “because he ‘found precisely the candidate [he] was looking for’ when he interviewed Blanchard-Saiger.” After Biard interviewed Blanchard-Saiger, he canceled the remaining two interviews. Biard offered to pay Blanchard-Saiger $20,000 more than the salary range listed for the position.
Reeves filed a charge of age discrimination with the Department of Fair Employment and Housing in which he alleged he was not selected for an interview or hired for the staff attorney position because of his age. After Reeves received a right to sue letter, he filed a lawsuit against MV Transportation for age discrimination. The trial court granted summary judgment in favor of MV Transportation.
To state a successful claim for discrimination, Reeves was required to show he was a member of a protected class, he was qualified for the staff attorney position, he was denied a job, and that there are “some other circumstance that suggest discriminatory motive” on the part of MV Transportation. It is undisputed that Reeves states a prima facie case of discrimination. However, MV Transportation stated legitimate, nondiscriminatory reasons for its hiring decision. Reeves claimed that MV Transportation’s stated reasons were pretextual. He contends “his superior qualifications, [MV Transportation’s] inconsistent justifications for the hiring decisions, and [MV Transportation’s] spoliation of evidence, either alone or in combination, constituted substantial evidence of pretext sufficient to defeat the summary judgment motion.” The court of appeal rejected Reeves’ arguments.
Reeves had more experience than Blanchard-Saiger in the area of labor law but Blanchard-Saiger had more recent experience in employment law. The court determined that the two attorneys’ qualifications were essentially equal as to their experience with labor and employment law with Reeves having the edge in labor law and Blanchard-Saiger having the edge in employment law.
Reeves argued that Biard’s inconsistent justification as to why it hired Blanchard-Saiger and not Reeves establishes pretext. Biard claimed he only interviewed three candidates because he did not have time to interview others. Reeves claimed that at one time, Biard stated he was not qualified for the position. Biard stated Reeves was not interviewed because Blanchard-Saiger met all of the job requirements “and was otherwise so outstanding that [MV Transportation] hired her before any other applicants were interviewed.”
The court found that none of the contradictions given by Biard in his explanations of why he hired Blanchard-Saiger were consequential. Biard consistently identified Reeves’ emails and his lack of employment litigation experience as the sources of his negative impression of Reeves. Biard explained in his deposition, however, that the negative impressions were not the reason he did not interview Reeves. Instead, Biard did not interview Reeves because he did not have time to interview all of the qualified candidates and he found a candidate who he found exceptionally well qualified early in the interview process. Although MV Transportation’s answers to interrogatories stated it only interviewed Blanchard-Saiger, Biard mentioned that he conducted three or four interviews. The court found “this discrepancy was relatively insignificant because Biard was solely responsible for the hiring decision and his views of [Reeves] were consistently stated.”
Reeves claimed Biard resorted to subjective criteria such as Blanchard-Saiger’s personality during the interview to justify his failure to interview Reeves. The court found there was no evidence to suggest Biard’s impressions should not be taken at face value. “If Biard had not been genuinely impressed by Blanchard-Saiger, he presumably would not have granted her request to transfer out of litigation, or offered her $20,000 more than the advertised salary for the position, in order to retain her.” The court concluded “reliance on subjective hiring factors did not raise a triable issue of fact as to the employer’s motives in this case.
MV Transportation destroyed all of the job applications and resumes after the position was filled. Biard claimed that the resumes and e-mails he received from the candidates were destroyed after his laptop computer was broken by the company that was supposed to be repairing it. Reeves claims that this “spoliation” of evidence by MV Transportation and Biard was “evidence of pretext.” Spoliation is defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
MV Transportation should have preserved the applications for a minimum of two years. The court found there was evidence that the records were knowingly destroyed by MV Transportation even if there was no intent to violate the statute that requires the documents to be kept for two years. However, the court found that the spoliation of evidence alone does not create a triable issue of fact as to whether MV Transportation discriminated against Reeves. Reeves was required to show “‘some (not insubstantial) evidence'” for his cause of action for discrimination before his case could survive summary judgment. The court found Reeves failed to do so. There was no substantial evidence of discriminatory motive on the part of MV Transportation.
The court held Reeves “did not have clearly superior paper credentials and [MV Transportation] did not offer inconsistent justifications for the hiring decision.” Accordingly, the court of appeal affirmed the decision of the trial court to grant summary judgment in favor of MV Transportation.
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