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April 20, 1993


The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 The Office of court Administration of the State of New York ("OCA") has moved for summary judgment against the complaint of pro se plaintiff Nicholas J. Marlow ("Marlow") who has alleged that OCA refused to hire him because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623 et seq. ("ADEA"). For the following reasons, the motion is granted.

 Prior Proceedings

 Marlow filed an administrative discrimination complaint with the U.S. Equal Employment Opportunity Commissioner ("EEOC"), dated March 4, 1991, alleging that he was being discriminated against on the basis of his age; he gave his age in the administrative complaint as fifty-six. On August 9, 1991, the EEOC determined that he was not selected for reasons other than his age, and dismissed the complaint. Marlow subsequently filed this lawsuit in September, 1991, and OCA moved to dismiss on September 3, 1992. The motion was heard on November 4, 1992, and considered fully submitted as of that time.

 The Facts

 OCA is an agency created under the New York Judiciary Law to administer New York Courts, including the classifying and hiring of clerks and other administrative jobs. Its hiring practices are governed by the New York Judiciary Law and rules of the courts and agencies of New York's Unified Court System, which are published in the State Register and made available in New York State's Official Compilation of Codes, Rules and Regulations (NYCRR). Title 22 of the NYCRR contains the rules and regulations pertaining to the administration of the Unified Court System.

 Marlow applied for the position of Court Assistant, a position in which its occupant performs clerical tasks related to court proceedings of the Supreme Court, all County and District level courts, certain City Courts, and the Civil Court of the City of New York, and other duties. The position has been classified as "competitive" by the Chief Administrator; it was graded at Judicial Grade 16 and paid an annual salary of approximately $ 27,000 at the times when Marlow was interviewed. Qualifications for it include a certain degree of education or a certain number of years of clerical experience and a passing score on the examination given for the position. Marlow, who received a bachelor's degree in economics from the City College of New York in 1952 and a Master's degree in English from Brooklyn College in 1955, more than adequately meets the educational qualifications.

 Marlow took the written examination for the position of Court Assistant on September 6, 1986, at which time his age was fifty-one, and was tested for his reading comprehension and his ability to check if a form has been correctly filled in, to classify items, and to file alphabetically. Marlow received a score of 87 (which included 5.0 veterans' credit) on the multiple-choice examination and was ranked at 741 out of 9,065 listed as eligible in the state (the "eligible list"). On October 19, 1987, he was put on the statewide list of successful candidates sent to the appropriate officials of the New York County Supreme Court, the Civil Court of the City of New York, the New York Criminal Court, and the New York Family Court to canvass the list to interview for vacant Court Assistant positions.

 Marlow was interviewed at least 15 times between May of 1989 and February of 1991, including six interviews at the Family Court and six interviews at the Civil Court. He was consistently rejected after being interviewed on the grounds of his hostile and belligerent demeanor during the interviews, his inappropriate dress of dirty, casual clothes, and comments which his interviewers interpreted as racist. Marlow's only employment during the last 20 years ended when he was terminated from it within a year, and during the interviews with the court agencies he refused to respond to questions concerning gaps in his employment history. It was concluded that he was not qualified to deal with the public or with his coworkers in the culturally diverse court system in New York City.

 Believing that candidates with written scores that ranked them below him on the eligible list were being chosen for these jobs, he first wrote to the OCA Personnel Department to complain on October 2, 1989, and finally to Governor Mario Cuomo by letter dated September 18, 1990. As result of these inquiries he confirmed his belief. However, nine candidates over the age of forty were hired by OCA from the eligible list.


 The standards for summary judgment under Rule 56, F.R.Civ.P., are well-known. The court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id. at 248. However, the mere existence of factual issues, if those issues are not material to the claims before the court, cannot suffice to defeat a motion for summary judgment. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The party opposing summary judgment "must do more than simply ...

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