positions under his control in the Unified Court System into four classes: competitive, noncompetitive, labor, and exempt. The competitive class includes "all positions for which the Chief Administrator find it is practicable to determine the merit and fitness of applicants by competitive examination." 22 NYCRR §§ 25.11. Applications and examinations for this class are governed by the rules and regulations set out in 22 NYCRR § 25.13 et. seq. After applicants qualify as candidates on the examination, they are selected for interviews by the staff of each court agency (the "court agencies") who make the actual decision to hire. An agency is allowed to choose among three available candidates who have the three highest scores on the exam pursuant to 22 NYCRR § 25.20(a)(1), the "One in Three Rule". The interview enables the agency to choose which of the three candidates it wishes to hire.
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 show that there is some metaphysical doubt as to the material facts," Matsushita Electric Industrial Co. Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Although discrimination cases typically involve a plaintiff's allegation of the defendants' discriminatory intent, that alone does not immunize the case from summary judgment if the allegations are conclusory and the defendants' motion is supported by an evidentiary record. "The salutary purposes of summary judgement . . . apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) cert. denied, 474 U.S. 829.
Marlow's Prima Facie Case Under the ADEA
To support his claim of discrimination, Marlow must establish factual issues sufficient to make out a prima facie case of a violation of the ADEA. The ADEA provides that "It shall be unlawful for an employer . . . to fail or refuse to hire . . . any individual . . . because of such individual's age." 29 U.S.C. § 623 (1988). The standards for the burden and order of proof in ADEA cases are the same as those in cases of discrimination arising under Title VII, see Bovers v. Flying Tiger Line, inc., 979 F.2d 291, 296 (2d Cir. 1992); Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991); Taggart v. Time, Inc., 924 F.2d 43, 45-46 (2d Cir. 1991). The standards are well known, and were set out by the Supreme Court in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination; if he succeeds, the burden of proof then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Should the defendant carry this burden, the plaintiff must then "be afforded a fair opportunity to show that the [defendant's] stated reason for [plaintiff's] rejection was in fact pretext." Id. at 804. The burden of persuasion at all times remains with the plaintiff. Burdine, 450 U.S. at 253; Zahorik v. Cornell Univ., 729 F.2d 85, 92 (2d Cir. 1984).
The plaintiff's initial burden requires him to offer evidence "adequate to create an inference that an employment decision was based on a discriminatory criterion illegal under the Act," Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919 (2d Cir. 1981), quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977). To make out his prima facie case, Marlow must show (1) that he was in the protected age group, (2) that he was qualified for it, (3) that he was not appointed to the position of Court Assistant, and (4) that someone outside the protected age group was appointed. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 253; Levin v. Analysis & Technology Inc., 960 F.2d 314, 316 (2d Cir. 1992). The burden then shifts to the employer to show some legitimate, nondiscriminatory reason for the employee's rejection, and that age was not the fact which resulted in the employer's decision not to hire. Burdine, 450 U.S. at 254; Taggart v. Time, 924 F.2d 43, 46 (2d Cir. 1991). If the defendant succeeds, the presumption raised by the prima facie case is rebutted and the factual inquiry proceeds to a new level of specificity. Burdine, 450 U.S. at 255.
Marlow has not managed to establish the second element listed here necessary to make his prima facie case: that he was qualified for the position. He maintains that he was determined to be completely qualified as a matter of law because he was never given a notice of disqualification pursuant to 22 NYCRR § 25.13(d). However, the disqualification provision in § 25.13(d) refers only to candidates who are taken off the eligible list and cannot be called in for interviews, which did not happen to Marlow.
He also maintains he was qualified as matter of law based on his level of education and his test score. That is not the case; if it were, there would be no need for OCA to compile an eligible list, or to schedule interviews from the list. Candidates are chosen as Court Assistants based on all three factors -- their scores, their educational background, and their interviews with the respected court agencies. The interview serves to test skills other those tested in the written exam, but which are nonetheless required for the job:
At the interview, the interviewers . . . make inquires of the candidate to assess the interpersonal and oral communication skills as related to his or her experience dealing with the public which is not covered by a written examination . . . .
Rivera Aff. at 4. The "Title Standard" description of the position lists as required the "ability to interview and orally exchange information with the public" and "ability to exercise tact and patience when speaking with or interviewing upset and angry individuals." Sanders Aff., Exh. M.
Marlow has made no showing that he was qualified apart from his test scores. Although McDonnell Douglas requires "only a minimal showing of qualification to establish a prima facie claim," and that the plaintiff "only needs to demonstrate that [he] possess the basic skills necessary for performance of [the] job," Owens v. New York City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) cert. denied, 116 L. Ed. 2d 451, 112 S. Ct. 431. quoting Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. cert. denied, 439 U.S. 984 (1978), Marlow has supplied no facts indicating that he has requisite qualifications for the job beyond his education and his score. He has put before this Court no evidence of having successfully dealt with the public in prior jobs. This alone distinguishes Marlow's case from the facts in Taggart, where the applicant was consistently rejected as being "overqualified." Taggart, 924 F.2d at 47. The essence of Marlow's argument is that candidates with lower written scores were hired as Court Assistants, but this does not explain how he qualifies for a job that involves dealing with the public.
Marlow has made a showing, although not a clear one, on the fourth consideration -- that applicants outside the protected group were hired in his stead. At least nine other Court Assistant appointees over the age of 40 were appointed off the same eligible list, and certain OCA employees who participated in the decision to appoint the plaintiff -- notably Carl Brown in the Criminal Court, and William Etheridge in the Civil Court -- were themselves over 40. See Toliver v. Community Action, 613 F. Supp. 1070, 1074 (S.D.N.Y. 1985), aff'd, 800 F.2d 1128 (2d Cir.), cert. denied, 479 U.S. 863 (1986) (if decisionmaker is in same protected class as plaintiff, claims of discrimination become less plausible).
OCA Has Articulated Legitimate, Nondiscriminatory Reasons for not hiring Marlow
Assuming that Marlow could establish a prima facie case, however, OCA has articulated legitimate nondiscriminatory reasons for not appointing him. His interviewers reported him "unresponsive to inquiries about and inability to explain his extended periods of unemployment (1969-79; 1980-date)" and described his "intolerant, sarcastic, condescending, argumentative, disrespectful, and verbally combative nature at the interviews." Bullock Aff. at 6. One African-American interviewer noted that:
at the September 6, 1989 interview, Mr. Marlow made a complaint about "you people" to myself and Ms. Joyce Grant, both Black females and co-interviewers,