Equal Employment Opportunity Commission v. Maricopa County

MEMORANDUM *

The EEOC appeals the district court’s grant of summary judgment in its action under the Age Discrimination in Employment Act, 29 U.S.C. § 623 (a). We undertake a de novo review of that decision, and affirm.

To survive a motion for summary judgment, the EEOC must present direct evidence of discriminatory intent, see Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994), or use the burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), to raise an inference of discrimination.

I. Direct Evidence of Discriminatory Intent

The EEOC rests its ease entirely on the depositions of Conchos and Anderson. Yet, Conchos and Anderson never testified that Mabery had in fact made the disputed comment — that Toth was an “old” employee. Rather, they said they could not remember Mabery’s exact words and agreed that Mabery might have used the word “old.” These depositions do not establish that Mabery in fact uttered the word “old.” And even if the word had been uttered, the context makes clear that the word was not used to refer to chronological age, but to Toth’s status as a former employee. Burn-out, not age, was the…

dissenting.

I disagree that Toth failed to raise a genuine issue of material fact regarding whether the County’s proffered reasons for deciding not to hire her were pretextual. Before the EEOC, the County gave two reasons for not rehiring Toth: her poor interview performance and the negative attitude she allegedly exhibited during her prior employment as a VWA. Toth offered evidence that, unlike Mabery, all three Bureau heads who attended her interview perceived the interview positively. 2 Although Mabery is entitled to her subjective perception of the interview, the evidence Toth produced raises an issue as to the sincerity and credibility of Mabery’s assertion that she believed Toth’s interview performance to be “real poor” and “unprofessional.”

Toth also offered evidence of the consistently high performance reviews she received during her tenure as a VWA, which complimented her, among other things, on her “professional image.” Even if Mabery did not review Toth’s performance evaluations, the evaluations raise a genuine issue of fact as to the credibility of the assertions, none of which was contemporaneously documented, that Toth had previously exhibited a negative…