Table of Contents

Table of Authorities............................................................................ ii

Statement of Interest.......................................................................... 1

Statement of the Issue........................................................................ 1

Statement of the Case......................................................................... 2

I. Statement of Facts................................................................ 2

II. District Court Decision....................................................... 5

Argument.............................................................................................. 7

The District Court erred when it concluded that

evidence of age-related questioning and comments

during a job interview cannot give rise to an inference

of age discrimination, sufficient to establish a

prima facie case.......................................................................... 7

Conclusion.......................................................................................... 21

Certificate of Compliance

Certificate of Service

Table of Authorities

Cases Page(s)

Bucalo v. Shelter Island Union Free Sch. Dist.,

691 F.3d 119 (2d Cir. 2012)...................................................... 9

Carlton v. Mystic Transp., Inc.,

202 F.3d 129 (2d Cir. 2000)............................................... 9, 10

Chambers v. TRM Copy Ctrs. Corp.,

43 F.3d 29 (2d Cir. 1994)........................................................ 10

Chapotkat v. County of Rockland,

No. 11-cv-6209, 2014 WL 1373531

(S.D.N.Y. Apr. 4, 2014)..................................................... 15, 16

Chapotkat v. County of Rockland,

605 F. App’x 24 (2d Cir. 2015)............................................... 16

Criley v. Delta Air Lines, Inc.,

119 F.3d 102 (2d Cir. 1997)......................................... 6, 15, 16

Davis v. Bombardier Transp. Holdings (USA), Inc.,

794 F.3d 266 (2d Cir. 2015)................................................... 13

Dister v. Cont’l Grp., Inc.,

859 F.2d 1108 (2d Cir. 1988)................................................. 10

EEOC v. Wyoming,

460 U.S. 226 (1983)................................................................... 8

El Sayed v. Hilton Hotels Corp.,

627 F.3d 931 (2d Cir. 2010)................................................... 14

Frey v. First Union Nat’l Bank,

38 F. App’x 87 (2d Cir. 2002)................................................. 13

Fried v. LVI Servs., Inc.,

No. 10-9308, 2011 WL 4633985

(S.D.N.Y. Oct. 4, 2011).................................................. 6, 15, 16

Gorzynski v. JetBlue Airways Corp.,

596 F.3d 93 (2d Cir. 2010)........................................................ 9

Hazen Paper Co. v. Biggins,

507 U.S. 604 (1993)...................................................... 8, 11, 12

Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977)................................................................. 17

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)........................................................ 1, 9, 17

St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502 (1993)................................................................. 10

Texas Dep’t of Cmty. Affairs v. Burdine,

450 U.S. 248 (1981)................................................................. 17

Western Air Lines, Inc., v. Criswell,

472 U.S. 400 (1985)................................................................... 8

Woodman v. WWOR-TV, Inc.,

411 F.3d 69 (2d Cir. 2005)............................................... 19, 20

Statutes and Rules

29 U.S.C. § 623(a)(1)........................................................................... 8

Fed. R. App. P. 29(a)............................................................................ 1

Statement of Interest

The Equal Employment Opportunity Commission

(“Commission”) is the federal agency charged by Congress with responsibility for enforcing the federal prohibitions on employment discrimination, including the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a).

This appeal presents the question of what quantum of evidence is required to establish a prima facie case of age discrimination under the proof framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically, this Court must determine whether evidence that during a job interview a qualified job candidate was specifically asked his age and was subjected to other questions and comments that suggested the employer harbored concerns about his age and older workers, and then was not hired, is sufficient evidence to give rise to an inference of age discrimination for purposes of the prima facie case. Because of the importance of this issue to the effective enforcement of the ADEA, the Commission respectfully offers its views to the Court.

Statement of the Issue[1]

Whether an employer that specifically asks a qualified job applicant his age and makes other age-related inquiries and comments before deciding not to hire the candidate has engaged in conduct that gives rise to an inference of age discrimination for purposes of the prima facie case under the McDonnell Douglas proof framework.

Statement of the Case

I. Statement of Facts

In May 2011, defendant MPCC Corporation, a construction general contractor based in New Rochelle, New York, began advertising that it had an open Senior Project Manager position. District Court Docket No. (“R.”) 60 at 1 (Opinion and Order). Plaintiff Douglas Dunaway, then age sixty-five, submitted his resume to MPCC in May and again in July 2011. Id. at 1-2.

On July 20, 2011, Dunaway was interviewed for the position by Joseph Urbinati, Jr., the president of the company and the official who conducted all job interviews and made the company’s hiring decisions. Id. at 2. At the beginning of the interview, Urbinati stated that he was “looking for a senior project manager to be with the company 10 to 15 years,” and then “asked [Dunaway] how old [he] was.” R.48-1 at 8-9 (Dunaway dep. at 64-65). Dunaway responded that he was “up in years,” and that he was “in good physical condition.” Id. at 11 (Dunaway dep. at 67). Urbinati then proceeded to discuss his own father, who Urbinati described as “in his 70s [and] no longer running the company.” Id. at 9 (Dunaway dep. at 65). Urbinati testified that he asked Dunaway how long he planned on working as a Senior Project Manager, and “probably” told Dunaway that he was looking for “a long-term employee.” R.48-5 at 7-8 (Urbinati dep. at 80-81). Urbinati also asked Dunaway if he “was capable of withstanding the vigors [sic] of the position.” R.48-1 at 11 (Dunaway dep. at 67).

Urbinati testified that he considered Dunaway’s candidacy “over the weekend” after the interview and decided not to hire him. R.48-5 at 5 (Urbinati dep. at 67-68). Thereafter, MPCC continued to seek candidates for the position. R.60 at 4; R.48-4 at 9 (Cornett dep. at 168). About one month after the interview, Dunaway filed a charge against MPCC alleging age discrimination in its failure to hire him for the Senior Project Manager position. R.60 at 4.

In October 2011, MPCC hired two individuals, then aged sixty-four and fifty-eight, as Senior Project Managers, the position for which Dunaway had previously applied. R.60 at 4-5. When Urbinati interviewed each of the successful candidates, he did not ask them their ages; he did not inform them that he was looking for a Senior Project Manager to be with the company for ten to fifteen years; he did not state that he was looking for a long-term employee; and he did not ask if they could withstand the rigors of the position. R.48-4 at 4 (Gawendo dep. at 44); R.48-15 at 2-3 (Fitzmaurice aff’t at 2-3). Also, there is no evidence that Urbinati discussed his father’s age and limited role in the company with these two other candidates. See R.48-4 at 4 (Gawendo dep. at 44); R.48-15 at 2-3 (Fitzmaurice aff’t at 2-3).

Dunaway ultimately filed suit, alleging MPCC’s failure to hire him constituted age discrimination and retaliation. R.60 at 1.

II. District Court Decision

In its order granting summary judgment to MPCC, the district court held that Dunaway failed to establish a prima facie case of age discrimination under the McDonnell Douglas proof framework. R.60 at 8. The court ruled that Dunaway could not establish what it described as the fourth element of the prima facie case—that “the failure to hire occurred under circumstances raising an inference of age discrimination”—because Dunaway “failed to adduce evidence from which a reasonable jury could infer discrimination.” Id.

As to the evidence of Urbinati’s comments to Dunaway during the interview, the court held that “Urbinati’s questions and comments during the interview do not show age discrimination.” Id. at 9. The court stated that “[n]otwithstanding the oblique references to age, the content of the questions suggests only that Urbinati sought to understand whether Plaintiff intended to retire in the short term.” Id. The court stated that Urbinati had testified that this was his intention, that “no other evidence undermines his explanation,” and that “this is an economic concern.” Id. at 9-10. The district court did not address the fact that Urbinati had not asked the later applicants their ages or otherwise make the same type of age-related inquiries or comments he made of Dunaway. See id.

The court continued that “[t]he Second Circuit has . . . held that ‘decisions motivated by economic concerns do not violate the ADEA,’” and “none of Urbinati’s questions ‘reflect any age-based stereotype or belief that older [employees] are less competent than younger ones.’” Id. at 10 (quoting Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997)). The court further stated that “‘[r]emarks relating to retirement or transition planning are insufficient to defeat a motion for summary judgment in an ADEA case.’” Id. (quoting Fried v. LVI Servs., Inc., No. 10-9308, 2011 WL 4633985, at *9 (S.D.N.Y. Oct. 4, 2011), aff’d, 500 F. App’x 39 (2d Cir. 2012)). The court ended its analysis of the prima facie case with the conclusion that “[b]y their own terms, Urbinati’s questions and comments indicate a concern about whether Plaintiff intended to retire and, if so, how soon. No evidence, direct or circumstantial, raises an inference of age bias.” Id. at 10-11.

The court then concluded that Dunaway had failed to show that MPCC’s proffered reasons for deciding not to hire Dunaway—that he would not be effective in the job, and that he had not been truthful about his prior work experience—were pretextual, or that MPCC’s hiring decision had been in retaliation for the filing of a discrimination charge. Id. at 13-19.

Argument

The District Court erred when it concluded that

evidence of age-related questioning and comments

during a job interview cannot give rise to an inference

of age discrimination, sufficient to establish a

prima facie case.

On its face, the evidence of the age-based comments by Urbinati indicates that Dunaway’s age was an important factor in Urbinati’s decisionmaking process. As such, this evidence is sufficient to satisfy the minimal burden a plaintiff bears to establish a prima facie case of age discrimination. The district court erred in concluding otherwise. In particular, the court erred in concluding, on summary judgment, that the comments necessarily related to retirement or longevity in a position.

Section 4(a)(1) of the ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). “Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (citing EEOC v. Wyoming, 460 U.S. 226 (1983)). To that end, “the ADEA commands that ‘employers are to evaluate [older] employees . . . on their merits and not their age.’” Id. at 611 (quoting in part Western Air Lines, Inc., v. Criswell, 472 U.S. 400, 422 (1985)).

When reviewing a district court’s grant of summary judgment on individual disparate treatment claims under § 4(a)(1) of the ADEA, this Court applies the burden-shifting framework provided by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). “Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (citing McDonnell Douglas, 411 U.S. at 802).

While the elements of a prima facie case may vary depending on the facts of the case, one way to establish a prima facie case of age discrimination is for the plaintiff to show “‘(1) that she was within the protected age group, (2) that she was qualified for the position, (3) that she experienced adverse employment action, and (4) that the action occurred under circumstances giving rise to an inference of discrimination.’” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012) (quoting in part Gorzynski, 596 F.3d at 107); see also McDonnell Douglas, 411 U.S. at 802 (characterizing the fourth element of the prima face case, under the facts of that case, as “after [the plaintiff’s] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications”).

“The burden of establishing a prima facie case is not a heavy one. One might characterize it as minimal.” Carlton, 202 F.3d at 134 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); other citations omitted); see also Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (“The burden of proof that must be met to permit an employment-discrimination plaintiff to survive a summary judgment motion ‘at the prima facie stage is de minim[i]s.’”) (citing Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)). Moreover, a court’s “determination of whether the circumstances ‘giv[e] rise to an inference’ of discrimination”—the fourth element of the prima facie case—“must be a determination of whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.” Id. at 38. “It is not the province of the summary judgment court itself to decide what inferences should be drawn.” Id.

In this case, only the fourth element of the prima facie case is at issue; as the district court noted, the other elements are undisputed. To support a finding in his favor on the fourth element, Dunaway proffered evidence that during his interview, Urbinati asked him how old he was and how long he intended to continue working; questioned him about his ability and willingness to withstand the “vigors” of a full-time Senior Project Manager position; and commented that his own father was “in his 70s” and had withdrawn from day-to-day operation of the business. See supra, at 3. This evidence indicates that Urbinati was both keenly aware of Dunaway’s age, and concerned about the effect Dunaway’s age would have on his ability to perform the job.

As the Supreme Court recognized in Hazen Paper, “[i]t is the very essence of age discrimination for an older employee to [suffer an adverse action] because the employer believes that productivity and competence decline with old age.” 507 U.S. at 610. Viewed in the light most favorable to Dunaway as nonmovant on summary judgment, the evidence regarding Dunaway’s interview suggests that MPCC’s decision not to hire Dunaway was paradigmatic age discrimination—that Urbinati perceived Dunaway to be an older worker, and believed that Dunaway was an inferior candidate for the job because of his age.

This evidence is therefore more than adequate to satisfy Dunaway’s “minimal” burden on summary judgment to show that his non-selection occurred under circumstances that suggested age discrimination. In light of this evidence, reflecting on its face that the “employer believes that productivity and competence decline with old age,” Hazen Paper, 507 U.S. at 610, it cannot be said that Dunaway’s evidence did not raise an inference of age discrimination for purposes of the McDonnell Douglas prima facie case.

The district court erred in reaching the contrary conclusion. The court stated that Urbinati’s questions and comments during the interview did not show age discrimination because notwithstanding what the court described as “oblique references to age,” “the content of the questions suggests only that Urbinati sought to understand whether Plaintiff intended to retire in the short term,” “no other evidence undermines his explanation,” and “this is an economic concern.” R.60 at 9-10. But Urbinati’s references were far from “oblique”; indeed, Urbinati expressly asked Dunaway his age. See Frey v. First Union Nat’l Bank, 38 F. App’x 87, 88 (2d Cir. 2002) (unpubl.) (rejecting the district court’s conclusion that evidence of “a comment by plaintiff's supervisor, asking plaintiff about his age, and suggesting that he take advantage of a pension plan, could not reasonably be construed to reflect age bias,” and reversing on that basis the district court’s grant of judgment as a matter of law to the defendant).

Accordingly, the district court acted improperly by deciding, on summary judgment, what inferences were to be drawn from the evidence of Urbinati’s conduct during the interview and by drawing those inferences in favor of MPCC and against Dunaway. See, e.g., Davis v. Bombardier Transp. Holdings (USA) Inc., 794 F.3d 266, 268 n.4 (2d Cir. 2015) (“‘We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.’” (citation omitted)).

Furthermore, the court’s unfavorable-to-the-nonmovant interpretation of the evidence regarding Dunaway’s interview is undermined by the evidence that Urbinati did not ask the other candidates their ages or make other age-related comments to them during their interviews. See supra, at 4. This evidence suggests that Urbinati’s questions and comments to Dunaway were not in fact based on an economic concern over retirement or employee longevity, as the district court concluded, because, in that case, Urbinati presumably would have expressed the same concerns to all the candidates. Because he limited his questioning and comments only to Dunaway, the court’s conclusion that Urbinati was motivated simply by economic concerns was an improper interpretation of the evidence on summary judgment.

The district court’s analysis of Dunaway’s prima facie case was further compromised by the court’s mistaken reliance upon decisions analyzing the pretext stage of the McDonnell Douglas framework, which entails a different, and more rigorous, evidentiary showing than is required to establish a prima facie case. See, e.g., El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932-33 (2d Cir. 2010) (per curiam) (recognizing, in the context of a Title VII retaliation suit, that while certain evidence “may give rise to an inference of retaliation for the purposes of establishing a prima facie case” it may also be “insufficient to satisfy [plaintiff]’s burden to bring forward some evidence of pretext”).

As support for its categorical statements that “decisions motivated by economic concerns do not violate the ADEA” and “‘[r]emarks relating to retirement or transition planning are insufficient to defeat a motion for summary judgment in an ADEA case,’” the district court cited three cases: Criley, Fried, and Chapotkat v. County of Rockland, No. 11-cv-6209, 2014 WL 1373531, at *7 (S.D.N.Y. Apr. 4, 2014), aff’d, 605 F. App’x 24 (2d Cir. 2015). R.60 at 10. However, these were decisions in which the plaintiff’s ability to establish a prima facie case was not at issue, or was resolved in the plaintiff’s favor without analysis of the possible age-based nature of the employer’s comments. See Criley, 119 F.3d at 103-06 (offering no analysis of plaintiff’s prima facie case, focusing instead on pretext stage); Chapotkat, 2014 WL 1373531, at *6 (concluding the plaintiff had established her prima facie case); Fried, 2011 WL 4633985, at *8 (“In this case, defendants do not contest that plaintiff has satisfied his burden of establishing a prima facie case.”).[2]

Instead, these decisions discussed whether the comments or statements by the employer that the plaintiff claimed were age-based were sufficient to rebut the employer’s articulated reason for the challenged employment action and establish pretext. In other words, the decisions were focused on the ultimate fact of discrimination. These decisions did not address whether the age-based comments or statements by the employer were sufficient to establish a prima facie case of discrimination and thereby shift the burden to the employer to offer a nondiscriminatory explanation for its conduct. Criley, 119 F.3d at 105; Chapotkat, 2014 WL 1373531, at *7-*9; Fried, 2011 WL 4633985, at *9-*10. As such, the district court’s reliance on these pretext rulings was unwarranted, as they do not support the conclusion that the evidence of the circumstances of Dunaway’s interview was insufficient to establish a prima facie case.

We note that Dunaway’s ability to establish a prima facie case on the basis of Urbinati’s conduct was not compromised by the fact that the ultimately successful candidates were close to Dunaway’s age. Under the Supreme Court’s articulation of the prima facie case in McDonnell Douglas, the fourth element requires showing only that “after [the plaintiff’s] rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U.S. at 802. The rationale for this formulation, the Supreme Court has explained, is to “eliminate[] the most common nondiscriminatory reasons for the plaintiff's rejection.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). In the context of a failure to hire, “the two most common legitimate reasons on which an employer might rely to reject a job applicant [are] an absolute or relative lack of qualifications or the absence of a vacancy in the job sought.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 358 n.44 (1977). Upon elimination of these two common reasons, the burden of production should shift to the employer to explain why it did, in fact, reject the applicant.

Here, Dunaway eliminated the common explanation of lack of a vacancy. Urbinati’s selection of the successful candidates took place after Dunaway’s interview and non-selection. Urbinati testified in his deposition that he decided not to hire Dunaway after considering Dunaway’s candidacy “over the weekend” after the interview. R.48-5 at 5 (Urbinati dep. at 67-68). Urbinati did not interview or select the successful candidates until some three months later, well after already deciding against Dunaway and after Dunaway had filed his charge of discrimination. See supra, at 4. Because Urbinati did not consider the three men at the same time, McDonnell Douglas indicates that MPCC should proffer an explanation for Dunaway’s non-selection in July 2011.

Second, while Urbinati’s behavior during Dunaway’s interview suggests he was aware of Dunaway’s age, there is no corresponding evidence suggesting that Urbinati had any idea of the age of the two successful candidates. By the testimony of the successful candidates themselves, Urbinati did not ask them their ages or otherwise subject them to age-related comments or questioning. See supra, at 4-5. If anything, a reasonable factfinder could conclude that the fact that Urbinati did not subject the successful candidates to age-related questions and comments, as he had Dunaway, suggests that he did not consider them to be of a similar age to Dunaway. Accordingly, the fact that the ultimately successful candidates were close in age to Dunaway would not preclude a reasonable jury from finding that the circumstances surrounding Dunaway’s interview and non-selection gave rise to an inference of age discrimination.

Urbinati’s lack of knowledge of the ages of Dunaway and the ultimately successful candidates does not compromise Dunaway’s ability to establish a prima facie case here. In age discrimination cases where the plaintiff attempts to satisfy the fourth prong of the prima facie case analysis with evidence that he or she was terminated and replaced by someone substantially younger, this Court has required the plaintiff to show that the employer had knowledge of the age discrepancy. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 79-80 (2d Cir. 2005) (“[W]e focus on . . . whether at the prima facie stage, a plaintiff who relies on replacement by a younger worker to support an inference of discrimination must be able to point to some admissible evidence that the defendant acted with knowledge as to the alleged significant age discrepancy.”). In Woodman, the court noted that “in the majority of age discrimination cases, a defendant employer’s knowledge of a plaintiff’s age will be undisputed because employers routinely maintain employee age information in their personnel files or are generally aware of employees’ relative ages from personal on-the-job contact.” 411 F.3d at 80.

This case, however, involves applicants, not current employees. Moreover, Dunaway did not attempt to establish his prima facie case by comparing himself to the eventual selectees—individuals who had not even applied when Dunaway was under consideration and whom the employer admits it selected months after rejecting Dunaway. See supra, at 3-4.

The evidence supporting the fourth, inferential, element of Dunaway’s prima facie case is the evidence of Urbinati’s age-based comments and inquiries, not the relative ages of Dunaway as compared to the two individuals Urbinati selected three months after he claims he decided not to hire Dunaway. As such, this Court’s knowledge rule has no application here, and the relative ages of Dunaway and the selectees play no role in the determination of whether Dunaway satisfied his minimal burden to state a prima facie case of age discrimination.

Conclusion

For the foregoing reasons, the Commission respectfully requests that this Court reverse the district court’s conclusion that Dunaway presented insufficient evidence to establish a prima facie case of age discrimination.

Respectfully submitted,

P. DAVID LOPEZ EQUAL EMPLOYMENT

General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

JENNIFER S. GOLDSTEIN 131 M St. NE, Rm. 5NW10P

Associate General Counsel Washington, D.C. 20507

(202) 663-4870

BARBARA L. SLOAN James.Tucker@EEOC.gov

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

[1] The Commission takes no position on any other issues in this appeal.

[2] This Court agreed with the district court that the plaintiff in Chapotkat established a prima facie case. Chapotkat v. County of Rockland, 605 F. App’x 24, 26 (2d Cir. 2015) (unpubl.). In that case, the plaintiff alleged that during his job interview, the interviewer stated that he did not “‘like when people in their late fifties and sixties come and they don’t stay here,’” that he “‘prefer[red] someone who could stay here for a long time,’” and then asked the plaintiff his age. Id. at 26-27.