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Equal Employment Opportunity Commission v. Unitek

September 15, 2010

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
v.
UNITEK, USA, LLC.



The opinion of the court was delivered by: L. Felipe Restrepo United States Magistrate Judge

MEMORANDUM

Plaintiff, Equal Employment Opportunity Commonssion ("EEOC"), initiated this employment discrimination action against defendant, Unitek, USA, LLC ("Unitek"), alleging age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. Specifically, Plaintiff alleges that defendant failed to hire Frank J. Bruno ("Bruno"), then age 54, on the basis of his age.

Testimony was heard at a bench trial before this Court from April 19, 2010 through April 21, 2010. Counsel for each party subsequently filed their respective Proposed Findings of Fact and Conclusions of Law (herein referred to as the parties' briefs), and a joint statement of undisputed facts. For the reasons set forth below, judgment is awarded in favor of defendant and against plaintiff.

1. Findings of Fact

Defendant Unitek was founded in June 2004. See Joint Statement of Undisputed Facts (hereinafter "Jt. St."), ¶ 2. The company provides engineering and construction of fiber optic cable for telecommunications companies, and installs set-up converters and residential equipment for cable and satellite companies. See Parties' Joint Stipulation (hereinafter "Stip."), ¶ 4. Scott Hisey ("Hisey") served as president and Chief Executive Officer ("CEO") of the company from inception through July 2008, at which time he ceded the position of president to Peter Giacalone. Stip. ¶ 5; Jt. St. ¶ 15. Mike Hisey ("M. Hisey"), Scott Hisey's brother, served as interim Human Resource ("HR") Director and Operations Manager during the time period at issue. Jt. St. ¶ 10. Greg Sudell ("Sudel") was Unitek's Chief Financial Officer at the time. Trial Tr., 80:2-12, Apr. 20, 2010. Joseph Kestenbaum ("Kestenbaum") was one of two initial investors in Unitek and became the majority shareholder of Unitek at some time in 2006. See Kestenbaum Dep. 9:6-11:7, May 19, 2009;*fn1 Trial Tr., 38:14-17, Apr. 21, 2010 (Hisey identifying Kestenbaum as a private equity sponsor of Unitek). Dr. Victoria Green ("Green") was retained by Unitek to perform management consulting, including executive coaching and executive hire interviewing. Jt. St. ¶ 16; see also Trial Tr., 13:8-16, Apr. 21, 2010 (Green testified that she was asked to interview candidates for the HR Manager position and to provide feedback to Scott Hisey.).

In 2006, Unitek followed a standard protocol when interviewing for positions that would pay $75,000 or more. First, candidates would meet with Sudell and Hisey. Trial Tr., 130:2-14, Apr. 20, 2010 (Elizabeth Downey ("Downey") experience); Trial Tr., 238:10-14, Apr. 19, 2010 (Douglas Forde experience). Further interviews would occur with other members of senior management, including M. Hisey. Trial Tr., 41:1-7, Apr. 21, 2010.If an individual had been deemed a likely candidate for the position, that individual would then meet with Green and Kestenbaum. Jt. St. ¶ 17; see also Trial Tr., 81:15-82:8 (Sudell), 131:17-132:2 (Downey), Apr. 20, 2010. Hisey ultimately made the decision whether to hire an individual for the posted position. Trial Tr., 42:5-13, Apr. 21, 2010;Trial Tr., 195:16-18, 205:2-4, 205:21-25, Apr. 19, 2010. In making his decisions, Hisey relied upon the input from all the people who conducted interviews. Trial Tr., 42:5-13, Apr. 21, 2010; see also List of Decision Makers, attached as Ex. 5 to Unitek Position Statement, Ex. P-4. As a general matter, Kestenbaum deferred to Hisey on all business decisions dealing with personnel and contracts. Trial Tr., 63:6-11, Apr. 21, 2010; see Kestenbaum Dep., 12:10-14, May 19, 2009 (asserting he always told management to hire or not hire individuals he met with as they saw fit).

In February 2006, Unitek posted a job opening for the position of HR Manager on the website www.monster.com. See Job Posting, Ex. J-1; Stip ¶ 9. Pursuant to the job description, Unitek sought an individual who had seven to ten years of experience in the Human Resources field, who would document policies and procedures and assure adherence to them, who would be expected to track and ensure development plans for employees were being met, who could help in developing strategic business initiatives, and who could demonstrate strong sourcing, interviewing, and people planning skills. Id. Unitek was seeking an individual who exhibited a combination of skill, experience, cultural fit with the company, and the ability to scale and grow with the business. Stip ¶ 6. Further, the company was looking for an individual who could implement a systematic performance tracking model to measure performance. See Trial Tr., 133:11-25, Apr. 20, 2010 (Downey testifying about what Sudell described job requirements); Trial Tr., 83:5-14, Apr. 19, 2010 (Bruno testifying about what he noted Hisey stated the company was looking for).

On April 5, 2006, Bruno submitted his resume for the position of "Manager of Human Resources" at Unitek. See Cover Letter, Ex. J-2. Though Bruno submitted his resume and cover letter via monster.com, see Trial Tr., 56:24-57:6, Apr. 19, 2010, he also knew people connected socially with Scott Hisey, notably Bill Lucchesi, who recommended that Hisey meet with Bruno about the open HR position. See id. 65:7-18 (Bruno); see also Trial Tr., 42:14-5, Apr. 21, 2010. At the time he submitted his resume for this position, Bruno was fifty-four (54) years old. Trial Tr., 37:24, Apr. 19, 2010. Bruno had a Bachelor's Degree in Psychology from Trenton State College, and had his MBA from Temple University. Trial Tr., 39:9-12, Apr. 19, 2010. Bruno's resume indicated that he had approximately twenty-five (25) years of experience in the human resources field, Jt. St. ¶ 18, having held positions at Sermatech International (twelve years), Technitrol, Inc. (two years), Covance, Inc. (two years), Garden State Tanning, Inc. (eight years), and Henkels & McCoy (approximately a year). See Bruno Resume, Ex. J-2. Bruno testified that while at Sermatech, he drafted the company's internal HR policies, negotiated labor contracts, and gathered information for senior management about potential HR costs associated with proposed mergers. See Trial Tr., 42:13-44:22, Apr. 19, 2010.*fn2 At Technitrol, Inc., he served as the Director of Human Resources, and in that capacity he consolidated the benefit plans across multiple production facilities, initiated a succession plan for manager development, and participated in team training exercises. See Trial Tr., 44:23-47:23, Apr. 19, 2010. He then did outplacement and recruiting work, in addition to policy drafting and establishment, at Covance, Inc. See Trial Tr., 47:24-51:4, Apr. 19, 2010. At his next employer, Garden State Tanning, Bruno managed union negotiations, was responsible for labor contracts, and participated in the due diligence efforts that occurred prior to the business being sold to a venture capital firm. See Trial Tr., 51:4-54:5, Apr. 19, 2010. Bruno then worked at Henkels & McCoy, a telecommunications company, at which he managed labor relations and reduced the cost of healthcare.*fn3 See Trial Tr., 54:7-56:12, Apr. 19, 2010.

Ms. Elizabeth Downey ("Downey") also submitted her resume for this position in early April 2006. Apr. 20, 2010 Tr. at 127:2-9. At the time she applied for the job, Ms. Downey was thirty-six (36) years old. Stip. ¶ 20. Ms. Downey has a Bachelor's Degree in Communications from Pennsylvania State University and an MBA from the University of Phoenix. See Downey Resume, Ex. J-6. She also holds the designation of Senior Professional of Human Resources from the Society of Human Resource Management. Trial Tr., 123:17-124:1, Apr. 20, 2010. Ms. Downey's resume indicated that she had between eleven and fourteen years of relevant experience, including human resource positions at Lightship Telecom (four and half years), Capsule Communications (one year), Current Medicine (four years), and The Richardson Group (two years). Id.; see also Jt. St. ¶ 8. While Ms. Downey was at Lightship Telecom, a company similar to Unitek, the company was in an "entrepreneurial mode" and going through "a growth phase," at which point she worked on implementing reporting metrics for the company. Trial Tr., 135:7-19, Apr. 20, 2010.

Both Bruno and Downey were selected by Unitek to interview for the position of Human Resource Manager in April 2006.*fn4 Their respective interviews occurred throughout that month.

On April 12, 2006, Bruno had his first Unitek interview with Sudell. Trial Tr., 58:25-59:1, Apr. 19, 2010. Sudell testified that Bruno's resume indicated he was qualified for the HR manager position. Trial Tr., 95:3-6, Apr. 20, 2010. Bruno did not recall being asked any questions at the interview about his ability to perform matrices or spreadsheets, but instead recalled describing his past experiences, his ability to draft policies, his ability to make charts, and his general capacity to "roll up his sleeves" to get a job done. See Trial Tr., 59:4-62:13, Apr. 19, 2010. Bruno also brought up the names of three individuals to see if he and Sudell knew people in common. Id. at 135:14-140:4. Sudell never asked Mr. Bruno his age. Id. at 124:14-16, 125:5-7. Sudell testified that Mr. Bruno was not a good fit for the company, stating that it was his impression at the time that Bruno would delegate responsibilities instead of taking on tasks himself. See Trial Tr., 84:24-86:6, Apr. 20, 2010. However, he could not specifically identify what might have led him to that conclusion, only that he remembered having that impression at the time. Id. at 100:14-23.

On April 14, 2006, Bruno next interviewed with Hisey at a bagel shop early in the morning.*fn5 Hisey had heard about Bruno from a mutual acquaintance they shared, and at the bagel store they discussed people they knew in common. See Trial Tr., 65:7-18, Apr. 19, 2010 (Bruno); Trial Tr., 42:14-43:5, Apr. 21, 2010 (Hisey). Discussing his professional capacity at this interview, Bruno again emphasized his ability to draft policies and his experience in managing the HR function. Bruno and Hisey did not discuss Bruno's experience, if any, in mergers and acquisitions or "charts or graphs." See Trial Tr., 63:10-68:25, Apr. 19, 2010. During the interview, Hisey indicated that he was interviewing other candidates. Id. at 150:25-151:9. At no point did Hisey ask Bruno his age. Id. at 145:5-8. Bruno testified that, after this meeting, he understood that Hisey controlled the decision to hire for the HR Manager position. Id. at 162:2-7.

By April 17, 2006, Downey had completed at least her first interview. See Trial Tr., 129:5-19, Apr. 20, 2010; Ex. J-6. At her first interview, Downey met with Hisey and Sudell in a conference room at Unitek. Jt. St. ¶ 10; see Trial Tr., 130:2-14, Apr. 20, 2010. Sudell emphasized that the company was looking for an individual who could put a systematic performance tracking system in place, as the company at that time did not have metrics in place to measure performance. See Trial Tr., 133:11-25, Apr. 20, 2010. Hisey and Sudell also focused their questions on Ms. Downey's experiences during the sale of Lightship Telecom, focusing on the sale and merger process in which she participated. Id. at 136:12-18. Although Hisey felt that Downey interviewed very strongly when they first met, he adhered to the Unitek hiring process and determined that she had to go through the entire Unitek committee hiring process before any hiring decision could be made. Trial Tr., 56:20-58:6, Apr. 21, 2010.

Downey's second interview was with Mike Hisey. She could not recall when this interview occurred. Mike Hisey led a conversational interview, although he focused on her experience with mergers and ...


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