Conboy v. Montgomery County Government
Conboy v. Montgomery County Government
Opinion of the Court
MEMORANDUM
Presently before the Court is a Motion for Summary Judgment filed by defendant Montgomery County Government (“the County”). This suit for damages, injunctive relief, and attorneys fees arises under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621-634 (1976 & Supp. Ill 1979) (“ADEA”). This Court has reviewed the papers submitted by the parties in reference to said motion and finds that there is no need for a hearing. See Local Rule 105.6 (D.Md. 1989). For the reasons set forth below, the Court GRANTS the defendant’s motion as to all of the plaintiffs claims by separate order. Accordingly, judgment is entered in favor of the defendant against the plaintiff.
1. FACTS
In January 1990, Mr. Conboy responded to an advertisement in the Washington Post for a “Money and Investment Manager” position with the County by mailing his resume to the County Personnel Department. The resume was received by Linda Waldon, a Personnel Specialist, who determined that he met the minimum qualifications for the position. Waldon then mailed Conboy a standard County job application along with a job-specific supplemental application. Conboy completed and returned both applications together with a letter requesting an interview.
A total of 31 individuals applied for the Investment Manager position. In order to determine which of the candidates to interview, the County developed a system by which each applicant would be anonymously evaluated and scored by three separate members of a “ratings panel”.
Each of the three panel members scored, on written evaluation forms, each of the six questions in the candidates’ supplemental applications on a scale of one to five, and submitted their evaluations to Waldon.
The overall average score of the candidates was 18.96. Twelve applicants with average scores between 21 and 29 were invited to interview for the position.
Waldon then sent Conboy’s supplemental application back to the ratings panel for a second review. Two members of the panel did not change Conboy’s score, but one raised his score by six points, bringing his average to a 15, six points below the lowest score of those invited to interview. When Conboy was again informed that he would not be interviewed, he filed an age discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) in May, 1990.
II. STANDARDS FOR SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the moving party can show that “there is no genuine issue of material fact” and that he is “entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In this case, the defendant, as the moving party, bears the initial burden of proof, and the Court must determine whether, viewing the evidence in the light most favorable to the plaintiff, “a fair-minded jury could return a verdict for the [plaintiff].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). If the movant makes this preliminary showing, the burden shifts to the opposing party to delineate, with supporting admissible evidence, an issue of material fact. A “mere scintilla of evidence in support of the plaintiffs position” shall not suffice. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.
III. DISCUSSION
The ADEA prohibits discrimination in employment against persons between 40 and 70 years of age.
Under the McDonnell Douglas scheme, Conboy can make out a prima facie case of age discrimination by proving, by a preponderance of the evidence, that: (i) he is a member of the protected age class; (ii) he applied for and was qualified for the position advertised; (iii) he was not hired for the position; and (iv) someone else was hired. See Fink, 708 F.2d at 909. The Court finds that Conboy has met this burden by introducing uneontroverted evidence that (i) he was 58 years old in 1990; (ii) in January, 1990 he applied for the position of Money and Investment Manager and met the minimum qualifications for the job
Once the plaintiff makes a prima facie case of age discrimination, the burden shifts to the defendant to “articulate some
In support of this contention, the County has introduced evidence that (i) the applications reviewed by the panel were anonymous and did not reveal the applicant’s age; (ii) the applications were read and scored by three individuals acting independently; (iii) the panel members were 49, 53, and 62 years old at the time they read the applications; (iv) the position was a high-level job involving the management of hundreds of millions of dollars; experienced individuals who required no training, but who could step in and immediately assume responsibility, would be at an advantage
If the defendant is able to articulate and produce evidence of a legitimate nondiscriminatory reason for not hiring the plaintiff, the burden shifts back to the plaintiff to show that age was the more likely reason for the rejection, or that the employer’s explanation is pretextual and “unworthy of credence.” Tuck v. Henkel Corp., 973 F.2d 371 (4th Cir. 1992). This burden merges with the plaintiffs ultimate burden of persuasion. In order to withstand a motion for summary judgment, the plaintiff must introduce evidence raising a genuine issue of whether age was a “determining factor” in the employer’s decision. Duke v. Uniroyal, Inc., 928 F.2d 1413, 1417 (4th Cir. 1991).
In his Memorandum in Opposition, Mr. Conboy makes a number of arguments and references to evidence which he alleges reveal that age was a determining factor in the County’s failure to hire him. Conboy first argues that his expert witness, financial adviser Steven Ames, testified that Conboy should have been interviewed. However, Mr. Ames admitted in his deposition that he made only a preliminary “tentative and cursory” review of the 31 supplemental applications
Next, Conboy points to an alleged inconsistency between the deposition testimony of Waldon and that of one of the panel members, Stine. Waldon stated that she told the raters nothing about Conboy’s age following
The Court finds this dispute immaterial, particularly because Conboy stated in the letter he wrote to Waldon requesting reconsideration of his application that “there has to be some reason other than a business or experience reason for declining to place me at the top of your list of candidates,”; the individual from personnel with whom Stine spoke could have deduced from this language that Conboy believed he had been discriminated against in some form and communicated this suspicion to Stine. Moreover, events which took place after the initial rating of candidates shed no light on the factors the raters took into consideration when they first evaluated Conboy’s application. During that initial review, the three raters, acting independently and pursuant to written instructions to “objectively assess[ ] each candidate’s presentation of experience and expertise,”
Next, Conboy points to a memo that panel member Watson wrote to Waldon after he had, at Waldon’s request, reevaluated Con-boy’s application. The memo describes Con-boy as a “fish out of water in the public environment.”
Fourth, Conboy points to the fact that every rater admitted that he could tell from Conboy’s application that Conboy was not a young man. However, the raters also testified that age was not a factor in their decision-making process, and the record reveals that over half of the applicants were over 40, and hence not, according to the ADEA, “young men”.
Next, Conboy points to the fact that one rater revised his score by six points after Conboy asked for reconsideration. However, panel member Mech testified that he did so only because he was giving Conboy the benefit of the doubt.
Finally, Conboy argues that the only applicant over 50 who was invited for an interview was an individual whose age could not be determined from his supplemental application. However, Conboy has introduced no evidence in support of this contention.
In conclusion, this Court finds that Conboy has failed to rebut the substantial evidence offered by the County in support of its contention that age was not a factor in its decision not to hire Conboy. Moreover, Con-
.The members of the panel were G. Peter Mech, Chief of the Montgomery County Division of Accounting, Robert Watson, Executive Assistant to the President of Montgomery College, and Charles Stein, the Director of Financial Services for the Montgomery County Board of Education.
. A perfect score would be a 30.
. 19 applicants with scores ranging from 7.6 to 20.6 were not invited for an interview.
. Defendant's exhibit 7.
. Apparently, the EEOC notified Conboy that it would be over a year before it could begin investigating his complaint. The EEOC then advised Conboy to sue in federal court and mailed him a "right to sue” letter. Conboy Aff. of 9/15/91 ¶ 9.
. The ADEA provides, in relevant part, that "[i]t shall be unlawful for an employer ... to fail or refuse to hire ... an individual or otherwise discriminate against any individual ... because of such individual’s age ..." 29 U.S.C. § 623(a) (1979).
. The McDonnell proof scheme has been adopted for application in ADEA cases. See, e.g., Goldberg, 836 F.2d at 847; Fink v. Western Electric Co., 708 F.2d 909 (4th Cir. 1983).
. See Defendant's exhibit 1 at 20-21 and Linda Waldon Aff.
. Defendant’s Memorandum at 15.
. The job description notes that the position involves "a high degree of independence” and requires the employee to make "daily investment decisions for a portfolio in excess of $350 million". The minimum requirements for the position were a bachelor's degree and seven years of experience. Thus, this was not a situation in which an employer was seeking someone young to train and prepare for a long-term career.
. Watson Dep. at 23-24.
. Mcch Dep. at 41.
. Rater Watson noted that "it really gets down to splitting hairs when you are rating these types of things.” Watson Dep. at 18.
. Ames Dep. at 18, 19. Conboy's attorney also stated for the record at the deposition that he asked Mr, Ames only to "very briefly review the other applications." Ames Dep. at 16.
. Ames Dep. at 18.
. Walden Dcp. at 27.
. Stine Dcp. at 29.
. Defendant's exhibit A.
. Plaintiff's exhibit 3.
. Watson Dep. at 24.
. In fact, Conboy's application revealed only that he had 25 years in the investment business, as well as a B.A. and an M.B.A. This information could have easily led the raters to believe that Conboy was in his late 40's, rather than 58.
. Mech Dcp. at 40.
. Notably, Mech testified that he was dissatisfied with Conboy's responses to questions two, three, and four of the supplemental application. Mech stated that Conboy's response to question two was "very short, wasn’t elaborative, it gave me no confidence that there was a lot of work effort previously done in the selection of banks.” Mech Dep. at 41. Mech also felt that Conboy’s answer to question three was too short, and that his response to question four was too "academic”. Mech Dep. at 41.
.Conboy also refers in his deposition to an anonymous phone call, approximately two to three seconds in duration, in which a woman allegedly called him and said, without explanation, "[yjou're not going to get the investment manager's job. Your age is being used against you.” Conboy Dep. at 51-52. However, this evidence is inadmissible hearsay and cannot support a motion for summary judgment. Fed. R.Civ.P. 56(e).
Reference
- Full Case Name
- Thomas J. CONBOY v. MONTGOMERY COUNTY GOVERNMENT
- Status
- Published