Equal Employment Opportunity Comm'n v. City Of Greensboro

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.CITY OF GREENSBORO, Defendant.

1:09CV576

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Date: December 14, 2010.

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States Magistrate Judge for a recommended ruling on the parties' respective Motions for Partial Summary Judgment (Docket Entries 9, 15). (See Docket Entry dated July 28, 2010; Fed. R. Civ. P. 72(b)(1).) The Equal Employment Opportunity Commission ("EEOC") brought this action to assert claims that Defendant violated: 1) the Age Discrimination in Employment Act ("ADEA"), by failing to hire Terry Pearson; and 2) a regulation implementing the ADEA, by failing to preserve documents regarding that decision. (See Docket Entry 1.) Defendant seeks summary judgment on the age discrimination claim (Docket Entry 9) and the EEOC seeks summary judgment on the record-preservation claim (Docket Entry 15).

The EEOC has identified sufficient direct evidence to permit a reasonable fact-finder to conclude that Defendant failed to hire Pearson "because of" his age and, alternatively, has presented sufficient evidence of a prima facie case of age discrimination and of pretext to proceed to a jury via the McDonnell Douglas indirect proof scheme; accordingly, the Court should deny Defendant's Motionfor Partial Summary Judgment. The EEOC, however, has failed to show that the record evidence, taken in the light most favorable to Defendant, warrants judgment as a matter of law for the EEOC on its record-preservation claim; the Court therefore should deny the EEOC's Motion for Partial Summary Judgment.

FACTUAL BACKGROUND¹

Failure to Hire Pearson

In the summer of 2007, Defendant hired Lewis Cheatham, Erich Todd Craddock, and Stacey Wilson as Electronic Processes Specialists in its Technical Systems Division (the "Division") (primarily to work on a 911 communications system). (Docket Entry 16-3 at 1, 17, 18, 22; Docket Entry 16-4 at 1, 6-8.) Defendant, through Division Manager Bechinger Martin, selected Cheatham, Craddock, and Wilson (whose ages all fell below 40) over Pearson (who was 58). (Docket Entry 16-3 at 3, 13; Docket Entry 17-4 at 19, 24; Docket Entry 17-5 at 5, 13, 23, 33.) According to Defendant's vacancy notice, the position(s) in question entailed "responsibility] for the service and maintenance of all equipment associated with the operation of an 800MHz radio system...." (Docket Entry 16-3 at 1.)

Under the heading "Minimum Qualifications" (id.), that notice listed in relevant part:

1) "Experience in 800MHz Smartzone Simulcast Trunked Radio system maintenance as it relates to diagnostics, preventive maintenance, repairs, [and] troubleshooting" (id.);

2) "Thorough knowledge of electronic theory and practice involved in installation, testing, diagnosis, and repair of complex electronic circuitry" (id.);

3) "Ability to read and comprehend wiring diagrams and schematic drawings related to electronic equipment, maintenance contracts" (id.); and

4) "Must hold a FCC license or the ability to obtain within 6 months of employment" (id.).²

Cheatham and Wilson "did not have experience in repair and maintenance of 800 MHz Smartzone Simulcast Trunked Radio systems." (Docket Entry 16-3 at 18, 23.)³ Neither did Pearson. (Docket Entry 16-5 at 9.) Pearson did have an FCC license (id.), whereas Cheatham, Craddock, and Wilson did not (Docket Entry 16-3 at 18, 23).⁴ Pearson also had over 30 years of experience doing electronics repair work (primarily on televisions and other consumer appliances and devices). (Docket Entry 17-4 at 2-8.) In addition, during his employment with General Electric from 1980-83, Pearson read schematic and wiring diagrams in connection with the testing of large-scale electronic equipment, including oil well drilling machinery and transformers. (Docket Entry 17-4 at 4.)⁵

Prior to Bechinger Martin's hiring decision, she and three employees of Defendant, James Ewing, Larry Frye, and Wendy Gregory, interviewed Cheatham, Craddock, Wilson, and Pearson. (Docket Entry 17-4 at 17-18.) Each interviewer scored each candidate. (Id. at 18.) Upon compilation of the scores, Cheatham "had 395 totalpoints, " Craddock had "385, " Pearson "had 341, " and Wilson "had 270." (Id. at 24; see also Docket Entry 16-3 at 26.)

Frye recommended to Bechinger Martin that she hire Cheatham and Pearson because, "even though [Pearson] did not have trunking experience, he had general electronic knowledge... that [the Division] could build upon. And he had a business, so he knew what it was to deal with customers and to satisfy their needs, and [the Division] needed that." (Docket Entry 17-4 at 33.) Ewing told Bechinger Martin that, "if [the Division was] going to have two positions, [it] should hire [Cheatham] and [Pearson]." (Id. at 27.) Only Cheatham had experience Ewing "want[ed]" and, thus, he initially recommended that the Division "advertise again, but she said [the Division] w[as] going to hire two people. So based on that, [Ewing] recommended [Pearson] as second." (Id.) In his view, "Cheatham had the most qualifications [of the interviewees]... [and Pearson] had the second most." (Id. at 28.)⁶

During her deposition, Bechinger Martin responded as follows when asked why she chose Wilson over Pearson, notwithstanding the fact that Pearson received a substantially better composite score from the interviewers: "It was based upon [Pearson's] experience with television and VCR repair-electronic repair, and those repairs were dated. That technology's dated. And the two higher-score people had experience in the current technology platforms." (Docket Entry 11 at 148; see also id. at 138 ("Q [to Bechinger Martin]. Why did you decide not to hire [Pearson]? A. We scored. He was very high in electronics repair of the-of the televisions and VCRs. He just did not have radio repair or radio experience other than ham operation.").) Bechinger Martin denied "mak[ing] [her] hiring decision based on Terry Pearson's age." (Id. at 178.)

Jennifer Williams-Hickey, a Division employee, however, reported that Bechinger Martin told Williams-Hickey that:

[Bechinger Martin] thought maybe [Pearson] was friends with Richard [Martin] and that if [Bechinger Martin] hired somebody... [Pearson's] age, she would have to go through all this training only to have him retire in a few years. And she wanted to hire a group of people that were going to be there for the long haul and not somebody just coming in and then leave shortly and then she'd have to do the whole hiring process over again.

(Docket Entry 17-5 at 4.)⁷

Pearson filed an administrative charge with the EEOC alleging that Defendant engaged in age discrimination by failing to hire him. (Docket Entry 16-3 at 27.) In its response to the EEOC on April 7, 2008, Defendant (through its attorney) stated that "Pearson was not hired for the sole reason that he was not the most suitable candidate to fill the position." (Docket Entry 16-4 at 1.) The response described how Defendant had interviewed five candidates and then stated: The candidates' responses were evaluated on a point scale. The successful candidate garnered the most points. Regrettably, [Pearson]'s responses were ranked third out of five candidates. Moreover, [Pearson's] experiences centered on repairing televisions and video cassette recorders. The successful candidate had relevant experience with 800 MHz radios.... The successful candidate not only had more relevant technological experiences, but had experience dealing with public safety and law enforcement agencies. The successful candidate's interview performance and relevant professional experiences made him the most suitable person for the position.

(Id. at 2.)⁸

Failure to Preserve Records

According to the EEOC's Complaint, "[s]ince at least March 2007, Defendant has violated 29 C.F.R. 1627.3(b)(1)(i), enacted pursuant to Section 7(a) of the ADEA, 29 U.S.C. § 626(a), by failing to make or preserve records, for the requisite one-year period, pertaining to the failure or refusal to hire Mr. Pearson." (Docket Entry 1 at 3.) The Complaint identifies such records as "including but not limited to scoring sheets and interviews [sic] notes, related to Defendant's hiring of applicants for the Electronic Processes Specialist position." (Id.)⁹

On October 15, 2008, the EEOC asked Defendant to submit, in relevant part, "all questions, answers, and scores on each of the five candidates (including [Pearson]) from the... interviewsconducted by Bechinger Martin, James Ewing, Larry Frye, and Wendy Gregory." (Docket Entry 16-4 at 5.)¹⁰ On December 10, 2008, the EEOC sent another request to Defendant, seeking (in relevant part) "all interview questions that were asked to each candidate during the interview process...[,] all rating sheets on each candidate[,] and any other relevant documents." (Id. at 10.) Via a letter dated December 29, 2008, from its counsel, Defendant advised the EEOC that it "d[id] not have a copy of the interview questions that were asked to each candidate during the interview process... [or] a ranking by each panel member of each candidate's responses to the interview questions." (Id. at 11.) Defendant, however, provided the EEOC with "a copy of the composite scoring and ranking of the applicants." (Id.)

On January 29, 2009, the EEOC issued a subpoena to Defendant demanding "all interview questions and answers that were asked to each candidate during the interviews for the position of Electronic Process Specialist... [and] documentation on how each committee member ranked each candidate on each question." (Id. at 13.) In response, Defendant (via a letter from its attorney dated February 6, 2009) repeated its above-quoted statement from its letter of December 29, 2008. (See id. at 14.) "[O]n February 11, 2009[,] [d]uring [an] on-site investigation [by the EEOC], Defendant produced interview questions and scoring...