Scott Holland Dec. 1, 2015, 6:58pm

A 59-year-old executive will be allowed to proceed with his age discrimination lawsuit against a San Diego-based maker of medical devices after a federal judge declined to dismiss his allegations the company that wouldn't give him an interview worded its open job listings in a way intended to discretely “weed out” older, more experienced applicants.

Dale E. Kleber, an attorney, of Hinsdale, brought the complaint in March in Chicago federal court against CareFusion, after the company declined to grant him an interview for a senior counsel position. The company ultimately hired a 29-year-old, the complaint stated.

CareFusion moved to dismiss the two-count action, but in a ruling issued Nov. 23, U.S. District Judge Sharon Johnson Coleman sided with Kleber.

According to court documents, Kleber’s resume includes stints as “the CEO of a national dairy trade association, as the general counsel of a Fortune 500 company and as the chairman and interim CEO of a medical device manufacturer.”

He applied for the CareFusion job, which, according to the complaint, was listed as senior counsel for procedural solutions, on March 5, 2014. The online job description called for three to no more than seven years of relevant legal experience. CareFusion was simultaneously advertising a similar position, which his complaint said was listed as senior counsel for labor and employment, also calling for applicants with just three to five years of legal experience.

Kleber argued these actions produced a disparate impact of discrimination and disparate treatment against older workers, such as himself.

“Of the 108 applicants for the position” Kleber sought, “CareFusion interviewed 10 candidates, all of whom had seven years or less of legal experience,” Coleman noted in her ruling. This led Kleber to believe “CareFusion’s requirement that applicants have seven years or less of legal experience was based on the correlation between age and years of experience and was intended to weed out older applicants such as himself.”

CareFusion said Kleber’s disparate impact claim should be dismissed because the Age Discrimination in Employment Act does not allow such claims for job applicants. Citing a Seventh Circuit ruling, which “interpreted Congress’ exclusion of ‘job applicants’ from subsection 2 of the ADEA as demonstrating that the ADEA was not intended to allow disparate impact claims against by job applicants,” Coleman agreed with CareFusion and agreed to dismiss the claim.

However, Coleman did not dismiss Kleber’s disparate treatment claim. CareFusion argued that “failing to hire an overqualified applicant does not constitute age discrimination.” The ADEA, Coleman said, requires a plaintiff to show his “age played a role in the decision-making process.” And though it is clear Kleber was overqualified for the job, “an employer does not commit age discrimination when it declines to hire an overqualified applicant.”

But, she said she could “not reject the possibility that such conduct could constitute age discrimination,” after Kleber argued the stated cap on legal experience “was a way of intentionally weeding out older applicants … (because) CareFusion believed that these workers were not desirable, qualified candidates because of stereotypes and unfounded assumptions regarding older workers’ commitment and their willingness to be managed by younger, less-experienced supervisors.”

Coleman invoked the Supreme Court’s ruling on Hazen Paper Co. v. Biggins, in which the court advanced a hypothetical scenario that an employer could use a factor, such as pension status or, in CareFusion’s case, relevant experience, “as a proxy for age if it supposed a correlation between the two factors and accordingly made decisions based on experience but motivated by assumptions about the age of those who would be impacted.”

Coleman did not rule on the merits of Kleber’s claim. But to proceed with his lawsuit past this point, Kleber needed only to “adequately (plead) a claim for disparate treatment under the ADEA.” As such, Coleman rejected Carefusion’s attempt to dismiss that count.

During the case, Kleber has represented himself and been represented by attorney Paul Strauss of the Chicago Lawyers’ Committee for Civil Rights and by attorneys from the AARP Foundation.

Carefusion is represented by Ogletree, Deakins, Nash, Smoak & Stewart, of Chicago.

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Organizations in this Story

AARP Foundation Litigation
601 E Street Northwest
Washington, DC 20004

Ogletree, Deakins, Nash, Smoak and Stewart, P.C.
155 N Upper Wacker Dr
Chicago, IL 60606

Chicago Lawyers Committee for Civil Rights Under the Law
100 West LaSalle Drive
Chicago, IL 60614

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