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Davis, California

Monday, October 18, 2021

Age discrimination case against UC goes forward

A case of age discrimination against the Regents of the University of California will appear in a trial by jury. There is currently no set date.

Arthur Silen, 68, filed a lawsuit against the regents, claiming that he did not receive a promotion due to age discrimination by his supervisors. Silen worked as a contract analyst for the Business Contract Department (BCD) at UC Davis starting in 2001. After five years, he applied for a promotion, which was given to a younger employee with less education and less experience. The case went to the Yolo County Superior Court in January 2008. The judge found that Silen did not have enough evidence to support the alleged discrimination. On Jan. 27, the ruling was overturned by the Third District Court of Appeals. The appeals court said that the Regents’ stated reasons for selecting the younger employee over Silen could qualify as discrimination.

“There is strong evidence in age discrimination in this case,” said Mary-Alice Coleman, principal of the law office representing Silen. “I believe that when the jury hears the facts and the witnesses, they will reach the same conclusion that we have.”

The regents, however, stand by the county court’s initial decision.

“[The appellate court] didn’t rule on the merits of the complaints,” said Claudia Morain, public affairs spokesperson at UC Davis. “It is the university’s opinion that there was no age discrimination, and that would be found at trial.”  

According to the appellate brief, Silen had interactions with his supervisor that warrants his case.

In January 2006, the supervisor allegedly came into Silen’s office without pretense and told him, “You really ought to retire.”

Later in the same month, Silen reported that the supervisor again came into the office and looked at Silen’s arbitrator certification plaque on the wall. The supervisor allegedly told Silen, “You ought to retire and go and become an arbitrator [and] make a lot of money.”

The court stated that the supervisor, who was also planning on retirement, could have considered retirement to be in Silen’s best interest.

The brief states that “one can reasonably debate whether a statement to an employee that he or she should retire, especially where the employee has reached what is commonly considered a retirement age, demonstrates age related bias or simply concern over what is best for the employee.”

However, the court noted that because these comments were unsolicited, a jury could infer age-related bias from the supervisor’s conduct.

The supervisor was also part of the panel that interviewed candidates for the promotion.

“During my meeting, [the supervisor] made a throat-slashing gesture to indicate to cut an answer short numerous times, ” Silen said in a statement to the court. “[The supervisor] also made faces, gesticulated and interrupted me repeatedly.”

According to the brief, other panelists thought that Silen had trouble keeping his answers short and concise, so a jury may reasonably infer that the supervisor was actually helping Silen do a better interview.

The position was eventually awarded to another contract analyst, who started working for the BCD in 2005.

This employee received a bachelor’s in political science at UC Davis in 2003 and worked as an analyst for the state for seven months before working at BCD.

In comparison, Silen has both a law degree and a master in law. He is a member of both the California and Massachusetts bar associations, has been published in legal journals and worked in legal capacities for nearly 40 years.

According to Silen, “the difference in experience and knowledge related to the job is so vast that any attempt by [the regents] to prove a legitimate reason for hiring [the employee] is dubious at best, and more likely dishonest.”

However, the court said that Silen may be looking too narrowly at the interview process.

“[Silen’s] argument ignores other factors that [the regents] might have taken into consideration in deciding who to promote, such as basic intellectual ability, effort, ability to work well with others and the like,” the brief states.

According to the regents’ defense, the job did not require a law degree. BCD only preferred applicants to have bachelor’s degrees.

Additionally, the other employee had a history of solid job performance. Silen’s performance evaluations reported that he did not listen well and was, on occasion, argumentative and disagreeable.

“The Court of Appeal ruled that Mr. Silen should be entitled to a trial,” Morain said in a statement. “The court didn’t make any finding as to whether he will ultimately prevail. The university is confident that he will not.”

The regents’ defense attorneys could not be reached after repeated attempts. Silen’s representatives, however, say that the university should be held liable for its actions.

“If a person is discriminated on the basis of their being older, the university is going to be accountable for that,” Coleman said. “The university has to follow discrimination laws just as any employer does.”

SARAHNI PECSON can be reached at city@theaggie.org.

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