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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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Dear Just Answer, I found out this morning that someone

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Dear Just Answer,

I found out this morning that someone that I trained from 1996 to 2001 was hired for a position that I had applied for. Chronology is as follows:

I contacted a venture capital guy that I knew who was on the Board of Directors at this company, as they did not have a CFO. He was going to present my resume to the CEO, but said there were a few "wrinkles" with that company - nothing specific.

Oddly enough, I was contacted by a recruiter 8/4/11 to see if I was interested in this position.

I sent my resume 8/4/11.

Recruiter responded 8/9/11 with job description.

From 8/9/11 to 8/15/11 or thereabouts, the recruiter and I spoke on the phone. She thought I had the "perfect" background for the position and wanted to meet me personally.

Before that could happen, on 8/23/11 she notified me that they were "moving forward with other candidates" and that I was not being considered. I was not even called in to interview for the position.

When I asked the VC on the Board via email on 8/23/11 why wasn't I even considered, he emailed me back with the following, "Ron, I will tell you what I know. The other candidates had much fresher, more relevant and more successful outcomes. I would say that these three reasons are the primary differentiator between you and other candidates. Have you looked at some non-VC back companies? The compensation may be less, but the opportunity to grow them may be the best shot."

Look I am 61, and have spent the last 18 years in start-up companies. No big company is going to hire me and that was a BS answer, just as the "fresher, more relevant..." BS answer. (He used to be a securities lawyer and was part of the Cardima IPO).

On 8/30/11, I emailed my resume and further documentation on my career to the CEO of the company. He had a meeting with the recruiter that day and told her that I had "called" and emailed him, to which she emailed me back and told me that matter how qualified I think I am, they are going with the four or five potential candidates for the hiring process...They both seemed a little "miffed" at me for being so persistent.

Comparing this person to me:

She is ~ 46 y. o.
I am 61 y.o.

She has a BA in Managerial Economics - 22 or so years experience.

I have a BA in Accounting; an MBA in Finance; and I am a Certified Management Accountant (CMA like a CPA, but for private accounting). I also have a graduate certificate in financial planning; the equivalent of another MBA - I have 35 years experience.

I am a Vietnam-era veteran from 1968 to 1972.

Her last four jobs were in succession: Cardima 1994 to 2001 - Director of Finance and HR (I did the IPO there as the VP/CFO); Lipid Sciences 2001 to ~ 2009 - CFO (already public when she joined) company went bankrupt; Bend Research 2009 to 2010 - private closely held - CFO; Vermillion 2010 to 2011 - public company- de-listed to pink sheets prior to her arrival; re-listed withing three months of her hire date (company had to catch up on financial statement filings) - VP and CFO; Ventus Medical just hired as VP - CFO.

My last jobs: EP Technologies 1993 to 1996 - merged with Boston Scientific and stayed for six months as requested by Boston; Cardima 1996 to 2003 IPO 1997 - Sr. VP/CFO/Corp. Sec'y; BARRX Medical 2004 to 2006 - VP CFO; The Brenner Group 2007 to 2008 - Consulting CFO for start-up clients of The Brenner Group; 2008 to current - consulting for a multitude of companies at CFO level.

As a matter of explanation, I took on consulting positions because I have been caring for my dad, who has had back surgery, a pulmonary embolism, a stent placement, a MRSA staph infection, an allergic reaction to a prescribed sulfa drug and several incidents of significant blood loss due to scratches or cutting himself accidentally while using coumadin. I have been his primary care taker with back-up from a sibling because he is living at home as per his choice. He turned 91 in September.

So, this company, Ventus, has a simple sleep apnea device and plans for sales to take off. The other successful candidate's last four companies virtually had no revenues or revenue growth.

I have been with EP Technologies/Boston Scientific: From $5M to $33M run-rate in three years - 1993 - 1996; a while back, Stryker 1991-1993 from $33M to $100M in one year; Coherent from $48M to $100M in six years; and BARRX from $0 to ~ $10M within two years. My sales growth experience was overlooked as well as additional experience and education. And what about hiring a veteran???

I have been look for a job for three years, with no limitations on full-time work if the right position came along. I would just hire a helper for my dad and go to work. This very similar set of circumstances has happened to me more than 25 times.

What can I do, if anything?
Hello and thank you for entrusting me to answer your question.

I'm sorry to hear that you feel you've been unfairly treated on the basis of your age. Unfortunately, proving age discrimination, like any other kind of employment discrimination, is very difficult to do. This, however, does not mean that it is impossible and the facts that you have described may very well form the basis for a valid claim.

While a company giving a job to a younger candidate is itself one factor that may point at age discrimination, if this were all that need to prove the age case, every person over 40 who was terminated or passed over for a new position would have a discrimination claim. This, of course, would of course be an absurd.

To establish a claim for age discrimination, the employee typically has the burden of proving that he was within a protected a class (over 40), and that he was passed over under circumstances which give rise to an inference of unlawful discrimination. The law requires you to prove that your age was the motivating factor for your unfair treatment, not simply that you are older and believe yourself to be more qualified.

The statements that the company has made to you regarding its hiring process may very well satisfy the above standard. Specifically, referring to substantially younger candidates as "fresher," and with more "relevant" experience may very well give rise to an inference that you were discriminated against on the basis of your age. Casual remarks such as these can be used in court to draw an inference of discriminatory treatment. In fact, a recent California Supreme Court case (Reid v. Google, Inc., 156 Cal.App.4th 424 (2007)) decided exactly that. In that case, a 52 year old plaintiff alleged that Google fired him because "he was not a cultural fit" and that he was referred to as "old man" and "fuddy duddy" and told that his ideas were "obsolete" and "too old to matter."

Given the differences between your credentials and those of the competing applicants, and given the statements made to you by representatives of the company, I would highly advise consulting with a local attorney to determine whether you should bring a claim. For some basic information on how to file a discrimination complaint with the DLSE, check out this link:

I hope that the information I have provided you helps. Bear in mind that none of what I've told you constitutes legal advice or should serve as the substitute for retaining an attorney. I wish you the very best of luck, and please remember to click "ACCEPT" so that I get paid for my time. Thanks so much.


If my answer has been helpful to you, please click on the GREEN ACCEPT button directly above. I will not get credit for assisting you or receive payment for my work unless you do this. Your question will not close after you click "accept," and you will still be able to ask follow-up questions if necessary.
The only facts I know about your situation are the ones that you tell me, so please try to be specific and bear in mind that, occasionally, miscommunications will occur. I will do everything I can to clarify my answer if I have misunderstood your question. Also bear in mind that the law does not always read how we think it should. I ask that you be understanding if an opinion I have provided is not consistent with what you wanted to hear.
Finally, the information that I have provided is not legal advice. I am not acting as your attorney and my answer does not establish an attorney-client relationship between us. I encourage you to consult with a local attorney in regard to legal matters.

I would highly advise consulting with a local attorney to determine

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