Court of Appeals Allows Age Discrimination Suit to Go Forward Against UC Davis

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Yolo-Count-Court-Room-600Friday marked the third time in two weeks that the Third District Court of Appeal (3rd DCA) has overturned the ruling of a Yolo County judge.  This time it was in a civil matter brought forward by Arthur Silen, a contract analyst, who sued the university after being passed over for a promotion that went to a much younger, much less educated and vastly less experienced candidate.

Yolo County Superior Court had granted the UC Regents’ summary judgment motion, finding that Mr. Silen had not established that the promotional decision was motivated by discriminatory animus.

In overruling the trial court decision, the Court of Appeal stated that the California summary judgment statute is “not intended to provide a shortcut for resolving cases dependent on issues of fact,” and agreed with another recent appellate decision that employment discrimination cases are rarely appropriate for disposition on summary judgment.

The appellate court also cited the California Supreme Court’s recent decision in Reid v. Google, Inc. (2010) 50 Cal. 4th 512, which rejected the “stray remarks” doctrine. 

The Court ruled that Mr. Silen’s supervisor’s comments urging him to retire, although not directly related to the promotion decision, were significant when combined with other evidence of pretext. 

The Court noted that, in addition to the retirement comments, Mr. Silen had undisputed evidence that his qualifications and experience were significantly superior to the younger candidate, as well as evidence suggesting the hiring process was rigged against him and favored the younger candidate.

“We are very happy that the Court of Appeal viewed the facts in Mr. Silen’s case as we do, and that we can now proceed to trial in this matter” said Mary-Alice Coleman, principal of the law office which represents Mr. Silen in this case.

“The Google and Nazir cases cited by the court are official recognitions that summary judgments have gone too far, particularly in employment discrimination cases, where motive and intent are often impossible to prove with direct evidence,” Ms. Coleman continued. “Age discrimination cases like Mr. Silen’s are unfortunately becoming more common with the aging population. This ruling is important because it will allow Mr. Silen to present all the facts and witnesses to a jury so they can see first-hand how he was treated.”

A spokesperson from the University, Claudia Morain, issued a brief statement to the Vanguard, “The Court of Appeal ruled that Mr. Silen should be entitled to a trial; the court didn’t make any finding as to whether he will ultimately prevail. The university is confident that he will not.”

In September of 2006, Mr. Silen, then 64, applied for a job opening within the Business Contracts and Analysis Office on the UC Davis campus.  He had been working at UC Davis since 2001, and prior to that he had been a practicing attorney on the East Cost for 25 years after receiving his law degree from UC Davis in 1969 and being admitted to the bar in 1970.

Mr. Silen, according to the appellate brief filed by his attorneys, had extensive experience in commercial law, administrative law, public contracts and construction law, legislative drafting, litigation, and appellate practice. His professional jobs have included Deputy Legislative Counsel with the California Legislature, and Attorney-Adviser with the United States Urban Mass Transportation Administration (UMTA, now designated as the Federal Transit Administration), serving as the Regional Counsel for the UMTA Region 1 for seven years.

Mr. Silen also practiced as a private attorney in Boston, Massachusetts, representing clients in public contract matters, administrative law, commercial arbitration, and other matters in the Massachusetts and federal courts.

His suit alleges that his immediate supervisor in January 2006 walked into his office on separate occasions and “forcefully urged him to retire.” 

The first time his supervisor did this, he said “You really ought to retire” and then left his office.  Shortly thereafter, his supervisor observed an American Arbitration Association membership plaque on Mr. Silen office wall and stated, “You really ought to retire and go out and become an arbitrator, and make a lot of money.”

Mr. Silen immediately complained about the unsolicited visits and comments, which in Mr. Silen’s view constituted age discrimination.

When Mr. Silen interviewed for the new position in December 5, 2006, the panel included his immediate supervisor.  The plaintiffs allege that during his interview, the individual “behaved rudely and obnoxiously, repeatedly harassed Mr. Silen, interrupted him while he was answering questions, gesticulated by making slashing gestures across his throat, and demonstrated his displeasure with Mr. Silen to everyone present.”

They ended up hiring a 24-year-old individual with no legal experience or business contracting knowledge.  Mr. Silen was at that time informed during a private conversation on January 2, 2007 that the immediate supervisor had “manipulated the proceedings.”

According to the appeals court, “the plaintiff’s case against defendant is based on two categories of evidence. First, plaintiff relies on what he characterizes as his vastly superior qualifications for the promotion. As noted earlier, [the promoted individual] has a B.A. degree, whereas plaintiff also has both J.D. and L.L.M. degrees. Plaintiff is a member of both the California and Massachusetts bar associations, has published in legal journals and has worked in various government positions and in legal capacities for nearly 40 years. [The promoted individual], on the other hand, worked only seven months as a contract analyst for the state and had been a contract analyst for the department for only a year before the promotion.”

While that may seem strong evidence, the court points out that there is no requirement for a law degree and the “plaintiff’s argument ignores other factors that defendant might reasonably have taken into consideration in deciding who to promote, such as basic intellectual ability, effort, ability to work well with others and the like.”

The question, according to the appeals court, “is whether a reasonable jury would have found plaintiff more qualified for the promotion than Gilmore, thereby inferring a possible discriminatory motive.”  And that is a matter of weighing of facts, not law, and therefore a question for a trial court, not summary judgment.

The second point they make is whether the supervisor’s actions are reasonably construed as evidence of age bias.  They write, “according to plaintiff’s evidence, the comments were not made in connection with some larger discussion of retirement or future plans. Rather, [the supervisor] simply walked into plaintiff’s office and, without as much as a salutation, told plaintiff he should retire, and then walked back out again. This happened on two separate occasions.”

Thus they write, “In our view, a reasonable jury could infer an age-related bias from this unusual conduct.”

They further surmise, “In this instance, the stray remarks of [the supervisor] are made more significant by evidence of [the supervisor’s] participation in the employment decision. And while this evidence alone might not be enough to withstand a summary judgment motion, here we also have evidence that, at least on paper, plaintiff appeared to be much more qualified than [the other applicant] to do contract work for the department. Although defendant presented evidence that a law degree was not a prerequisite to the position, it is nevertheless undisputed that all of the contract analysts in the department except [the other applicant] were attorneys.”

They conclude then, that Mr. Silen presents “sufficient evidence to establish an issue of fact on whether defendant’s stated justification for promoting [the other applicant] instead of him was a pretext for age discrimination.”

As we mentioned, UC Davis believes it will ultimately prevail.  However, from our standpoint, if it indeed is true that the supervisor made these derogatory remarks and acted inappropriately during the interview process, there is plenty of cause for concern.

However, as these are matters of fact rather than law, the issue indeed should go forward for a jury to decide.

—David M. Greenwald

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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2 thoughts on “Court of Appeals Allows Age Discrimination Suit to Go Forward Against UC Davis”

  1. Fight Against Injustice

    I went to the third appellate court website to see how many Yolo cases they have ruled on in the last few months.

    I went as far back as October (that is as far as they list). I only found the three cases David has reported. All three cases have been reversed.

    Does anyone know how often reversals happen? It seemed most of the opinions I looked at from other counties were confirmed and not reversed.

  2. David M. Greenwald

    Reversals are fairly rare. It takes a lot for an appellant court to overrule a trial court and the standard is different – there has to be a legal reason, like in this case, the appellate court differed on the issue of whether it was a dispute over facts or if the facts when shown in best possible light showed potentially a pattern of discrimination.

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