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A 57-year-old lawyer who said he was never even interviewed for three jobs as a claims attorney at ECS Claims Administrators Inc. in Exton, Penn., has lost his age discrimination suit now that a federal judge has ruled that he failed to cast any doubt on the nondiscriminatory reasons the company gave for choosing younger candidates. Attorney Elek Fenyes, who represented himself in the suit, argued that although two of the three lawyers who got the jobs were well-qualified, that fact did not rule out the possibility that age played a role in the company’s decision not to hire him. But U.S. District Judge William H. Yohn Jr. said plaintiffs in discrimination cases must do more to keep their cases alive. “Once a defendant articulates legitimate reasons for the employment action, a plaintiff must point to evidence that those reasons are pretextual,” Yohn wrote. “To do so, the plaintiff must produce some direct or circumstantial evidence from which a factfinder could either reasonably: (1) disbelieve the employer’s articulated legitimate reason, or (2), believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer’s action.” The employer is entitled to summary judgment, Yohn said, unless the plaintiff can “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ and hence infer ‘that the employer did not act for the asserted nondiscriminatory reasons.’” Fenyes retired in 1998 after 25 years as a government employee. He began applying for jobs with ECS in April 1999. After the first job was given to a younger man, Fenyes filed an age discrimination complaint with the Pennsylvania Human Relations Commission. When ECS ran more ads for claims attorney posts, Fenyes again applied, in December 1999 and June 2000. Both times, he said, the jobs went to younger lawyers, and Fenyes wasn’t even interviewed. In his suit, Fenyes claimed that all three rejections were the result of illegal discrimination. The first decision was pure age discrimination, he said, and the two other rejections were a combination of age discrimination and retaliation against him for complaining to the commission. But ECS lawyers Jacqueline T. Shulman and Daniel F. Schranghamer of Obermayer Rebmann Maxwell & Hippel in Philadelphia, argued that in each instance, the company interviewed only the best candidates and chose the most qualified. In response to the April 1999 ad, they said, ECS received 156 resumes and interviewed nine candidates, ultimately offering the post to Jeffrey Baldyga, a 37-year-old graduate of the Widener University School of Law who also had a bachelor’s degree in oceanography from the U.S. Naval Academy and a master’s degree in environmental engineering from the New Jersey Institute of Technology. The second ad brought in 130 resumes, they said, and ECS interviewed seven external and one internal candidate, ultimately giving the job to Kerry Ann Ebersole, who was already employed by ECS in its adjusting division. The final ad brought in 53 resumes, and ECS offered the job to Kathleen Daly because she had experience in the insurance industry and in handling insurance coverage claims. She also has a bachelor’s degree in environmental science and a master’s degree in marine affairs. ECS argued that Fenyes had not even made a prima facie case for discrimination because he wasn’t even qualified for the jobs since Fenyes acknowledged in his deposition that he does not have experience analyzing insurance coverage issues; and that his r�sum� does not reflect his alleged experience investigating insurance claims or managing litigation on a nationwide basis. But Fenyes argued that he was qualified for each of the positions because his r�sum� reflected that he possessed the requisite degrees, legal experience, computer literacy, and communication, analytical and negotiation skills — the only qualifications set forth in the ads. The other portions of the ads, he said, referred to job responsibilities and not job qualifications. Yohn sided with Fenyes, saying “a reasonable jury could find that the stated job responsibilities in the first sentence of the advertisements were not necessarily job qualifications.” Since Fenyes succeeded in stating a prima facie case, Yohn said, the burden shifted to ECS to show that its reasons for hiring the younger lawyers were valid, nondiscriminatory reasons. On that point, Yohn found that ECS met its burden by articulating why each of the three was hired. Fenyes argued that while two of the three were well-qualified, he should still be allowed to argue to a jury that ECS rejected him because of his age. But Yohn said Fenyes had a heavier burden and that he failed to meet it because he “simply has proffered no direct or indirect evidence of age discrimination or that defendants’ reasons were pretextual.” Fenyes also argued that one candidate — Ebersole — was less qualified than he was and that a jury could infer from that fact that ECS’ reasons for hiring her were not true. Yohn disagreed, saying Fenyes “failed to meet his burden of demonstrating that ECS’ stated reason that it preferred an internal candidate with insurance experience was merely pretextual.”

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