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Golfers know that they can’t get the ball in the hole if they don’t first take a swing. Now one former Connecticut golf course pro has lost an age discrimination case because he neglected to take the first swing — applying for his job. Norwalk lawyer Neal P. Rogan represented Walter A. Bogues, a PGA-certified golf pro who served at Trumbull’s Tashua Knolls Golf Course from 1976 to 2003, when he claimed, unsuccessfully, that he was illegally fired due to his age. In his deposition, Bogues said he believed his contract was not renewed in 2002 because his age at that time, 55, is “a magic number.” He testified that three of his fellow pro golfers in Connecticut were also terminated at that age. “In the age of Tiger Woods, it’s clear the trend is to have golf pros who are younger, tougher and faster, and the town of Trumbull was clearly going that way,” said Rogan, of Depanfilis & Vallerie, in an interview. For the first time in Bogues’s career, Trumbull’s golf commission put the golf pro job out to bid in 2002. The commissioners encouraged Bogues to submit his resume and proposal. Instead, Bogues believed he saw the handwriting on the wall. He sold his house, moved to Arizona and took a golf pro job there. That proved to be a serious misstep when Bogues later decided to sue. Although he managed to overcome numerous objections to his suit, he couldn’t overcome the basic argument that he couldn’t have been discriminated against for a job he didn’t apply for. Fairfield lawyer Arthur C. Laske III represented Trumbull. It contended the commission was dissatisfied with Bogues’s unwillingness to offer golf clinics for women and children, complained of poor customer service by Bogues’ staff and the incidence of “slow play” by some golfers. It also wanted him to improve the quality and quantity of merchandise in the pro shop, which he also ran. Bogues countered that none of those complaints had ever been raised in a performance review or any written complaint. He also said that some complaints, such as slow play, are perennial problems that all golf courses face. In 2003, the town hired a 39-year-old pro, Christopher Samson, for $60,000 and a performance bonus of up to $10,000. That was more than twice Bogues’ salary, noted U.S. District Judge Janet Bond Arterton in her August 18 decision. Trumbull argued in its motion for summary judgment that Bogues was not an employee but an independent contractor, who therefore could not sue under the federal Age Discrimination in Employment Act. It also contended he failed to meet three of the four elements of a threshold case. Everyone agreed he was over 40, so he met the first element. But the town disputed he was “qualified” for the job, in light of its complaints. Third, Trumbull disagreed that Bogues was fired or suffered an “adverse employment action” under the ADEA. And fourth, the town said Bogues failed to establish a causal connection between age discrimination and his termination. Arterton ruled that Bogues made out a legal case. He need only be minimally qualified, not exceptional, and as an experienced PGA-certified pro, he clearly met that test, she concluded. When Trumbull suddenly put his job out to bid after 26 years, it was an “adverse employment action.” And the fact that Samson was 16 years Bogues’ junior was enough to establish an inference of age discrimination, the judge concluded. SHIFTING BURDENS Once Bogues made his initial case, the burden of proof shifted to Trumbull to show it had a nondiscriminatory reason for firing him. Arterton said it satisfied that burden with its complaints of poor job performance. The burden then shifted back to Bogues. He had to prove those reasons were just a pretext for illegal age discrimination. That’s where his case stumbled, the judge concluded. “In the end, Bogues cannot establish that his termination was a pretext for age discrimination because the record does not show that any member of the Golf Commission ever alluded to, commented on, or was motivated to act on the basis of age,” Arterton wrote. It was irrelevant, she added, that other Connecticut golf courses terminated their pros at 55, because no Trumbull official ever told Bogues “that 55 was the age at which golf professionals should leave or be terminated.” The worst part of Bogues’ case, Arterton wrote, was that he’d never actually applied: “Finally,” she concluded at the end of the decison, “Bogues cannot make out a prima facie case for discrimination in hiring based on the 2002 bidding process because he never submitted an application.” Today Bogues has a new job as an assistant golf pro job in Arizona. “He’ll be fine,” Rogan said.

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