Metropolitan News-Enterprise


Monday, July 12, 2010


Page 1


Appeals Court Rejects Attorney’s Age-Discrimination Suit




A Northern California company that hired a 40-year-old lawyer as an in-house labor and employment counsel did not discriminate against a 56-year-old competitor who was not interviewed for the position, the First District Court of Appeal ruled Friday.

Div. One affirmed a summary judgment in favor of MV Transportation, Inc. The panel agreed with Solano Superior Court Judge David E. Power that David B. Reeves, a field attorney with the National Labor Relations Board, failed to rebut the company’s showing that it hired Gail Blanchard-Saiger based on qualifications, rather than age.

Reeves sought the position after seeing a notice on the Association of Corporate Counsel website in January 2005. The position was advertised at $130,000 to $140,000 per year; the listed qualifications included experience in NLRB proceedings, grievance and arbitration proceedings, collective bargaining and/or counseling of businesses in connection with labor disputes, and “proven employment litigation experience, including responding to administrative agency civil rights actions (EEOC, etc.).”

Reeves’ resume showed that he had worked at the NLRB from 1973 to 1975, at Kaiser Industries and Kaiser Steel Corporation from 1975 to 1985, and at Sempra Energy from 1985 to 2002, and had returned to the NLRB in 2003. Pursuant to the instructions given, he e-mailed the resume to John Biard, then the company’s general counsel.

Biard testified in his deposition that there were about 60 applicants for the position, and that he had interviewed “maybe four” candidates and had two other interviews pending when he spoke to Blanchard-Saiger, who was a senior lawyer at Foley & Lardner at the time.

He interviewed her, Biard said, because she was recommended by a well-regarded Foley lawyer; she was a former federal court law clerk with a strong academic record; she was admitted in New York, where the company had operations; and she had worked in human resources before practicing law.

He was relatively unimpressed by Reeves, he testified, because he did not seem to have law firm or employment litigation experience. He was also put off by the fact that Reeves sent his resume with an e-mail from his office during work hours, he said.

He did not select further applicants for interviews after he spoke to Blanchard-Saiger, Biard testified, because they “just clicked” and he “thought she was the person” for the job and “didn’t have the time to...continue to interview people and look over resumes.”

Age was not a factor, he said, noting that the company hired another attorney in that same period, a woman who was 49 years old.

Presiding Justice James J. Marchiano, writing for the Court of Appeal, explained that Reeves’ prima facie showing—that he was over 40 years of age, was qualified for the job, was not hired, and was more experienced in the advertised field than Blanchard-Saiger—was rebutted by the company’s showing that it had non-discriminatory reasons for choosing her over him.

In order to avoid summary judgment, Reeves had to show that the stated non-discriminatory reasons were pretextual, and failed to do so, Marchiano concluded.

The presiding justice explained that given the subjective nature of the hiring process, a disparity in qualifications will raise an inference of discrimination only if it is substantial.

While Reeves clearly had more experience in traditional labor law, Blanchard-Saiger had more recent experience and more substantial experience in employment discrimination and wrongful termination litigation, which was an important part of the job, Marchiano wrote.

“Even if plaintiff’s labor law background could be deemed to have outweighed Blanchard-Saiger’s employment law experience to some degree, Blanchard-Saiger had a number of advantages that plaintiff did not,” the jurist went on to say. “She had been recommended by an attorney Biard respected, she had a New York bar membership that might be useful to the company, and she had law firm experience that Biard valued.”

In a footnote, Marchiano said the trial judge did not abuse his discretion in sustaining the company’s objection to an expert witness declaration by former Gibson, Dunn & Crutcher hiring partner Kenneth Anderson.

Anderson opined that Reeves possessed “paper qualifications” that were “demonstrably superior” to Blanchard-Saiger’s. MV objected on the ground that Anderson “spent his entire career at a single law firm and knows nothing about the hiring practices or hiring requirements of a transportation company such as defendant.”

The court also rejected the contention that the company’s failure to maintain the applications for the position for two years, as required by the Fair Employment and Housing Act, created an inference that they contained evidence favorable to the plaintiff and thus established a triable issue. The company said the file may have been destroyed when it moved its legal office from Solano County to Iowa in 2006.

“[S]poliation of evidence alone does not necessarily create a triable issue,” Marchiano wrote, citing federal cases requiring that the claim also be supported by evidence that is “not insubstantial.”

The jurist distinguished Byrnie v. Town of Cromwell, Bd. of Educ. (2d Cir. 2001) 243 F.3d 93. The court there held that the defendant’s spoliation of evidence was grounds to deny summary judgment that might otherwise have been granted.

Marchiano noted that the Byrnie court found the plaintiff to have “clearly superior paper credentials” in comparison with the younger teacher whom the board hired, and that the board had been forced to admit that its initial explanation for not hiring him was unsupported by the facts.

“If we set aside the spoliation of evidence issue, defense entitlement to summary judgment is not a close question in this case, unlike the situation in Byrnie,” Marchiano wrote 

The case is Reeves v. MV Transportation, 10 S.O.S. 3885.


Copyright 2010, Metropolitan News Company