Labor & Employment Law Daily Rejecting temp attorney for permanent position as ‘too experienced’ may be code for ‘too old’
Friday, June 1, 2018

Rejecting temp attorney for permanent position as ‘too experienced’ may be code for ‘too old’

By Lorene D. Park, J.D.

Denying summary judgment on an ADEA claim by an attorney who was hired temporarily to perform in-house counsel work but was passed over for a permanent senior position in favor of a much younger candidate, a federal district court in Texas found triable issues on whether he was qualified for the position and whether the reason for not selecting him was pretextual. The court noted that the parties disputed the meaning of the phrase “strong academic” background and whether that meant a prestigious law school or whether getting good enough grades to make Law Review was enough. And while the employee did not show he was clearly more qualified than the younger attorney, a reasonable jury could find pretext in a manager’s alleged statement that the company wouldn’t want the employee because he had “too much experience” and would be inflexible, which the employee argued was code for “too old” (Owen v. STMicroelectonics, Inc., May 29, 2018, Scholer, K.).

Originally hired in 2007 on a temporary basis to perform general in-house counsel duties while another attorney was on assignment in China, the employee drafted and negotiated commercial contracts, real estate leases, licensing agreements, and technology agreements. He also reviewed non-disclosure agreements (NDAs). His position ended upon the other attorney’s return in 2008.

Didn’t want senior attorney with “so much experience.” In April 2013, an HR rep contacted the employee about temporarily returning to review NDAs, as a paralegal who normally did so had left the company. He agreed and, while there, learned that a full-time, permanent corporate counsel position (a senior position) had opened because the attorney who had worked in China had now left the company. The employee also learned the company planned to hire an attorney in a junior position to replace the paralegal who normally reviewed NDAs. He expressed interest in the senior position but a manager told him that the company did not want “someone with so much experience that they would be inflexible.”

The job advertisement for the senior position sought a candidate with “strong academic and employment credentials” and “about 10 years of experience,” preferring big firm and in-house experience. Ultimately, the employer selected a 36-year-old candidate for the senior position, who had nine years of legal experience at large law firms and as in-house counsel, including complex corporate transactional matters. When the employee was passed over for the job, he was 64 years old. After the company also hired an attorney for the junior position, the legal department was fully staffed and the employee’s position was eliminated.

ADEA claim heads to trial. Denying the employer’s motion for summary judgment on the employee’s ADEA claim, the court found triable issues on the two elements disputed by the parties: whether the employee was qualified for the senior attorney position; and whether the explanations for not hiring him were pretext for intentional age discrimination.

Qualified? As to whether he was qualified, the court noted that the Fifth Circuit focuses on “objective job qualifications” and the employee’s burden is not onerous. Here, while the employer argued that he lacked experience working for a large firm and lacked a strong academic background because he did not go to a highly ranked law school. On the other side, the employee argued that big firm experience was only preferred, not required, and that he had a strong academic background because he performed well enough in law school to be invited to join the Law Review.

In the court’s view, the employee provided enough evidence to avoid summary judgment on this issue. Most persuasively, he was a licensed attorney, has a JD, and has more than ten years of experience. Further, he had served as in-house counsel for several large, international companies. Because he showed that he met the only required objective qualifications, and raised a fact dispute on whether he met at least some of the preferred qualifications, he raised triable issues on whether he was qualified for the senior attorney position.

“Too experienced” code for too old? With respect to the reasons for not hiring the employee for the senior position, the employer argued that it did not believe he was qualified, that he performed poorly as a temp in reviewing NDAs, that there were several errors in his resume and the email expressing interesting the job, and that the successful candidate was better qualified.

While the employee failed to show that he was “clearly better qualified” than the successful candidate, he nonetheless raised a triable issue on whether the reasons for not selecting him were pretext for age discrimination. In particular, in discussing the employee’s interest in the senior position, the manager allegedly said the company wouldn’t want someone with so much experience because they would be inflexible, which the employee argued was simply “code” for his being too old. In the court’s view, a reasonable juror could find the comments about experience and inflexibility to be indicative of age discrimination. Though his evidence was “barely sufficient,” it was enough to go to trial.

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