The Job: "National public transportation company, with its corporate offices in Fairfield, California seeks an experienced attorney in traditional labor law and employment litigation to report to the General Counsel/Chief Legal Officer. [¶] We offer an excellent opportunity to join a growing Legal Department and to work with Operations and Human Resources as a productive member of the Corporate Office. [¶] . . . [¶] Requirements: 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 (EEOC, etc.)."
Candidate A: After college, "worked worked four years as a company Human Resources Manager, where among other things she revised and implemented personnel policies and assisted with the negotiation of the company's first union contract. She then went to law school at UC Davis, where she graduated in the top five percent of her class and as a member of the Order of the Coif. She became a member of the New York and California Bar Associations, and clerked three years for a judge of the United States District Court for the Eastern District of California. She joined the law firm of Foley & Lardner in 1997, and was working there as a Senior Counsel in labor and employment litigation when she applied for the position with defendant. In her practice she had been called upon to: “[c]ounsel employers regarding all aspects of labor and employment law”; “[m]anage all phases of labor and employment/commercial litigation in state and federal courts”; “[r]epresent employers before state and federal administrative agencies”; “[r]epresent management in labor grievance and arbitration proceedings”; and “[d]evelop and conduct labor and employment law training for clients.”
Candidate B: Worked "as a Field Attorney for the National Labor Relations Board from 1973 to 1975. He worked for Kaiser Industries and Kaiser Steel Corporation from 1975 to 1985, where among other things he had “”[s]erved as management representative in final stage of grievance procedure,” and “[s]uccessfully represented Company in $18 million arbitration involving issue of Supplemental Unemployment Benefit Plan continuance post-contract expiration.” As an attorney at Sempra Energy, a “[n]ational energy provider with 12,000 employees,” from 1985 to 2002 he had among other things “[g]uided . . . Sempra‟s largest subsidiary, through difficult and contentious collective bargaining negotiations,” “[s]uccessfully defended 'pay-per-route' method of compensation for meter readers against challenges by federal class action and state agency, thereby generating millions in annual savings”; “[o]btained state appellate court decision preempting most of Company's operations from reach of Cal-OSHA”; and “[p]rovided preventative law advice to client on daily and proactive basis, including downsizings” . . . [and then] resumed work as an NLRB Field Attorney in 2003 [to date]."
On just that paper record, which one's better?
Would your opinion change if Candidate B sent his application for the position from his work e-mail address (at the NLRB)? What if Candidate B sent a follow-up e-mail that said: "Frankly, I doubt that any other candidate could be as qualified and experienced for this position as I am. I doubt that any other candidate meets your stated requirements for the position as closely as I do."
Would your opinion change if Candidate A was "recommended by Pat Riley, an attorney [you] knew and respected who was of counsel at the Foley firm. Riley had not worked with Blanchard-Saiger, but he knew that she was applying for defendant‟s position, and he told Biard that she was leaving the firm voluntarily and had not been asked to leave?"
Candidate A, who was 40, was interviewed and hired. Candidate B, who was 56, was not, and sued, claiming age discrimination. The trial court granted summary judgment to defendant, and the Court of Appeal affirms, calling the case "not close."
I agree. There's additional stuff in the opinion beyond mere qualifications, but it supports rather than detracts from summary judgment. An employer could easily conclude that A was better then B, even if (and this is indeed an "if") others might disagree. That B is 56 and A is 40 shouldn't give rise to a lawsuit. Or, if it does, that action should be dismissed on summary judgment. And affirmed.