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Dunadee v. County of Monroe

Other Lower Courts

July 23, 2001

Andrew W. Dunadee, Plaintiff,
County of Monroe, Defendant.


Charles S. Turner, County Attorney of Monroe County, Rochester (Michael E. Davis of counsel), for defendant.

Samuel F. Prato, Rochester, for plaintiff.


Andrew V. Siracuse, J.

This is a summary judgment motion by the defendant. The plaintiff in this case, Andrew Dunadee, is 75. He applied to the defendant County for three separate clerk/typist jobs, and although his civil service examination scores placed him among the three highest-scoring examinees, he was not hired for any of the three positions. He brought this lawsuit alleging age discrimination.

Page 606

The threefold pattern of application, interview and rejection is at the heart of the case; no interviewer at any time suggested a discriminatory intent, but plaintiff finds the fact that he was rejected three times as itself creating a suggestion of discrimination. Beyond this pattern, however, he has presented no evidence to call the County's explanations into question, only argument and supposition. Because no question of fact exists as to the bona fides of these explanations, the County's summary judgment motion must be granted.

In moving for summary judgment, the County submitted affidavits from the interviewers in all three jobs, and their depositions (along with the plaintiff's) are in the plaintiff's answering papers. These statements present facially valid and convincing nondiscriminatory reasons for hiring other candidates for the positions at issue.

Plaintiff first applied to the County Law Department. The open position required an employee who could run papers to the courthouse and who would be able to do extensive periods of copying while standing at a copier. Mr. Dunadee stated at the interview that he had a bad knee and could neither stand for any length of time nor bring papers to the courthouse. He did not ask if accommodation could be made for this disability. He also sang at the interview, something that " was considered inappropriate." Another eligible candidate was eventually offered the job. Although not one of the three highest-scoring examinees, the successful applicant was a current employee hired through the internal transfer process. In his deposition, plaintiff first denied any recollection of the interviewer's questioning him about the copying and messengering duties, then qualified his denial by adding that the subject probably came up, but that he did not recall it.

Plaintiff was next interviewed for a clerk/typist position at the County's HIV clinic, and the supervisor decided to hire another candidate who had extensive customer service experience. Because much of the work of this position involved interacting with clients, many of them distressed and critical of their care, the supervisor preferred a person who had a history of handling complaints from dissatisfied customers. Although the person hired had experience only in retail, the retail experience and the candidate's interpersonal skills were felt to fit better with the needs of the clinic. This person's examination score was comparable to Mr. Dunadee's.

The final position for which Mr. Dunadee was interviewed was as a clerk/typist within the Civil Service Unit itself, and

Page 607

early in the interview Mr. Dunadee told the interviewer " emphatically" that he did not like the civil service system.H e also preferred to deal with people face-to-face rather than by telephone. The interviewer was concerned about both assertions, since the position was often the first contact people had with the civil service system and its occupant was frequently called upon to guide people through the application process. Mr. Dunadee's dislike of the system would make it difficult for him to carry out these duties properly. Furthermore, most contact with the public was by phone.

As the Court of Appeals has recently stated, " [t]o defeat a properly supported motion for summary judgment in an age discrimination case, plaintiffs must 'show that there is a material issue of fact as to whether (1) the employer's asserted reason for [the challenged action] is false or unworthy of belief and (2) more likely than not the employee's age was the real reason' " (Ferrante v American Lung Assn., 90 N.Y.2d 623, 630 [citations omitted]). The County concedes that the plaintiff has established a prima facie case sufficiently to cast upon the defendant the burden of showing nondiscriminatory reasons for its actions. After having done so, however, the defendant essentially nullified ...

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