(Solano County Super. Ct. No. FCS030265). Honorable David Edwin Power.
The opinion of the court was delivered by: Marchiano, P.J.
CERTIFIED FOR PUBLICATION
Plaintiff David B. Reeves, age 56, applied for a position as a staff attorney with defendant MV Transportation, Inc. He was not one of the people chosen to be interviewed, and the job was given to someone forty years old. He sued defendant for age discrimination, and the court granted defendant's motion for summary judgment. Plaintiff contends that there are triable issues arising from his superior qualifications for the position, defendant's inconsistent explanations for not hiring him, and defendant's spoliation of evidence. We disagree and affirm the judgment for defendant.
Defendant's General Counsel and Chief Legal Officer John Biard posted a notice on the Association of Corporate Counsel website in January 2005 of a staff attorney opening with defendant. The notice read: "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.). . . ." Gail Blanchard-Saiger who was hired and plaintiff were among approximately 60 people who applied for the position.
Ms. Blanchard-Saiger's resume showed that she graduated from college in 1986, and 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]counsel 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."
Plaintiff's resume began with the following paragraph under the heading "Senior Labor and Employment Attorney": "Highly qualified professional experienced in all areas of the labor and employment law filed in major corporate setting. Represented clients in over 350 labor arbitrations and before NLRB, EEOC, DFEH, OFCCP, Cal-OSHA, and Division of Labor Standards Enforcement. Advised on a daily basis regarding contract negotiations, contract administration, personnel decisions, and effect of state and federal law. Represented clients in union litigation, wage-hour class action, employment discrimination and wrongful termination litigation. Juris Doctor, UCLA School of Law; member, California State Bar." The resume then detailed plaintiff's professional experience, beginning with work 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." Plaintiff resumed work as an NLRB Field Attorney in 2003, and was holding that job when he applied for defendant's position.
The job posting asked that cover letters and resumes be e-mailed to Biard at his e-mail address with defendant. Plaintiff sent his resume to Biard on January 21, 2005, with a cover e-mail stating, "I have extensive experience in NLRB matters, arbitration, collective bargaining negotiations, wage-hour, employment discrimination litigation, OSHA, and various other state and federal labor law matters." The e-mail was sent at 9:28 a.m. from plaintiff's e-mail address at the NLRB. Biard testified at his deposition that he was put off to receive an e-mail from a taxpayer supported government office during working hours, and that he did not permit employees he supervised to use defendant's workplace to look for jobs outside the company. Plaintiff testified in his deposition that he telephoned Biard on February 9, 2005, to confirm that Biard had received his resume and to reiterate his interest in the position. He testified that Biard did not promise him an interview and gave him no reason to believe that he would receive one. Baird told him that he had just finished receiving applications, and would be scheduling interviews in two to three weeks.
Biard testified that he was the only one who reviewed resumes for the position, and that he alone decided who would be interviewed. He put a check mark on the resumes of the people selected for interviews, and an "x" on those he rejected. He did not mark plaintiff's resume, which meant that plaintiff had a "possibility" of being hired, and would not be among "the last people looked at." Biard did not recall precisely how many people he interviewed; he said he had conducted "maybe four interviews," and had two others pending, when he interviewed Blanchard-Saiger.
Biard chose Blanchard-Saiger for an interview in part because she had been recommended by Pat Riley, an attorney Biard 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. Biard liked Blanchard-Saiger's law firm experience; he testified, "I came up through the ranks working for private law firms. And . . . right or wrong, I think that I earned my stripes that way, billing, you know, 21-, 2400 hours, et cetera." He was impressed by Blanchard-Saiger's "academic credentials," including her federal judicial clerkship. Her New York bar membership "was a big positive" in view of defendant's operations there. Her human resources background, useful in dealing with regulatory matters, was an added plus he did not expect to find in candidates for the position.
When Biard was asked in his deposition about any negative impressions he formed about plaintiff from plaintiff's resume and communications, he said that plaintiff had: (1) used time and resources at work to apply for the job; (2) sent him an e-mail he regarded as arrogant; (3) not highlighted litigation experience on his resume; and (4) not worked for a law firm. Biard found the e-mail plaintiff sent following up on his employment application to be arrogant insofar as it stated: "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." However, when Biard was shown the e-mail and saw that it was sent on March 24, 2005, he realized that it could not have borne on his hiring decision because he had already extended the offer to Blanchard-Saiger by that point. He went on at the deposition to acknowledge that plaintiff was qualified for the position, and that none of the four negatives identified above were reasons why he did not interview plaintiff.
Baird did not interview plaintiff because he "found precisely the candidate [he] was looking for" when he interviewed Blanchard-Saiger. After interviewing Blanchard-Saiger, Biard did not proceed with the other interviews he had pending. He received "a number of resumes . . . where those persons on paper had the requisite qualifications," and he did not have time to interview all of them. "[P]ersonality wise," he and Blanchard-Saiger "just clicked, end of story. I thought she was the person I wanted. . . . I didn't have the time to . . . continue to interview people and to look over resumes."*fn1
Biard said that "the only thing negative at all" about Blanchard-Saiger "was her desire not to do litigation in the long term." Blanchard-Saiger testified in her deposition that "when I was applying for the job, I made it clear that I did not want to do civil litigation. I did that for however many years at Foley, and I did not want to do civil litigation anymore." Biard said that he told Blanchard-Saiger during her interview that, at least immediately after being hired, she would be working on some litigation matters. "She knew that would be the case if she accepted the position, and did do so."
Biard did not extend Blanchard-Saiger an offer at her interview, but stopped interviewing for the position after meeting her. The job notice listed a salary range of $130,00 to $140,000, but defendant agreed to pay Blanchard-Saiger $160,000.
Biard asserted that "my reasons for not hiring [plaintiff] had nothing to do with discrimination." Plaintiff conceded in his deposition that he had no direct evidence that he was not hired because of his age or that Biard harbored any group bias. Biard hired another attorney, Joan Saupe, who, like Blanchard-Saiger, began working for defendant in April 2005. Ms. Saupe was 49 years old when defendant retained her.
Plaintiff lodged a charge of age discrimination against defendant with the Department of Fair Employment and Housing (DFEH), alleging that he was not selected for an interview and not hired for the staff attorney position because he was 56 years old when the hiring decision was made. Plaintiff received a right-to-sue letter, and filed a complaint against defendant for age discrimination in violation of the California Fair Employment and Housing Act (Gov. Code, ...