Moss v. Bmc Software Inc

Decision Date02 July 2010
Docket NumberNo. 09-20488.,09-20488.
Citation610 F.3d 917
PartiesMichael MOSS, Plaintiff-Appellant,v.BMC SOFTWARE, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit


Safi Nasim Ahmad (argued), Shellist Lazarz, L.L.P., Houston, TX, for Moss.

Mark Douglas Temple (argued), Jones Day, Peter Justin Stuhldreher, Meyer White, L.L.P., Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES, STEWART and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Michael Moss, a commercial transactions and information technology lawyer, brought this case alleging that software company BMC Software, Inc. (BMC) violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), by declining to hire him when he applied for a Staff Legal Counsel position. At that time, Moss was 68 years old. BMC instead hired a younger lawyer. In response to Moss's claims, BMC asserted that the younger lawyer was the better qualified candidate. The district court granted summary judgment in favor of BMC, concluding that Moss failed as a matter of law to show that he was clearly more qualified than the candidate hired in order to establish pretext and had not proffered any direct evidence of discrimination. We AFFIRM.

A. Moss Applies for a Position at BMC

In September 2006, at the age of 68, Moss submitted his application for an in-house Staff Legal Counsel position with BMC, a company that develops, licenses, and markets software. BMC's job announcement included the following description of the Staff Legal Counsel position:

Job Functions & Responsibilities:
· Manage the legal aspects of all transactions involving the creation or acquisition of technology for resell [sic] to customers either on a stand-alone basis or as part of a BMC product and subject to either BMC's or another party's end user license, including OEM, Alliance, Development Outsourcing, Resell and other agreements.
· Manage the legal aspects of all transactions involving the creation of migration routes for customers of withdrawn BMC products and methods for extracting additional value from those products
· Create, implement, and maintain policies, processes and programs around the use of third party code
· Provide general legal support for R&D, Alliances, and other business groups
Skills Required:
· Advanced legal drafting and negotiating skills, especially in an IP licensing practice
· Advanced legal and non-legal communication skills
· Advanced team leadership and project management skills
Education/Training Required:
· J.D. from an accredited U.S. law school with top academic credentials
· Five or more years experience in a transactional IP practice

The Staff Legal Counsel position would report to BMC's Associate General Counsel, Catherine Stallworth. Prior to a restructuring of BMC's legal department, Stallworth had been responsible for the matters that would be assumed by the Staff Legal Counsel and therefore she had the most familiarity with the type of work that would be performed by the successful candidate. Stallworth was responsible for making the final hiring decision.

After Moss applied for the position, he received no response from BMC. Stallworth stated that she rejected Moss's application because he did not have relevant experience and was therefore not qualified for the position. BMC continued to seek applications, and received an application from Monika Lim.

When Moss received no response to his application, he sent a letter directly to BMC's General Counsel, Denise Clolery. In the letter, Moss outlined in greater detail that he believed he possessed the necessary experience and skills for the open position. After receiving Moss's letter, Clolery forwarded his resume to Stallworth. According to Stallworth, she thought “it wouldn't hurt to call” and ask Moss about some of the experience that he described in his letter. Stallworth conducted a telephone interview with Moss. During the conversation, Moss stated that he had experience with what BMC referred to as OEM transactions, but that he used different terminology to describe that type of work. Based on the telephone interview, Stallworth scheduled Moss for an in-person interview.

Moss and Lim interviewed at BMC on the same day. Both candidates interviewed with Stallworth, Clolery, and two other members of the legal department. At the conclusion of the interviews, the interviewers met to discuss the candidates and unanimously agreed that Moss lacked the hands-on experience with the specific transactions necessary for the Staff Legal Counsel position, and would likely be unable to successfully and quickly assume the responsibilities of the position. Moss was not offered the job. BMC hired Lim, who was substantially younger than Moss.

B. Moss's Qualifications

Moss obtained his law degree from Berkeley in 1964 and then worked for two years at a litigation firm in California. He then joined a Chicago law firm, and made partner after three years. Moss remained at that firm as a partner for the next five years, until the firm dissolved. At that time, Moss formed another firm with some of his former partners, Katten Muchin. There, Moss handled complex corporate transactions, became the firm's draftsman, and had a role in overseeing all of the transactions that the firm handled. After eleven years with Katten Muchin, Moss moved to another firm, Neiman & Grais, as a partner.

Five years later, Moss joined Gordon & Glickson as a partner. Gordon & Glickson was a specialized information technology (IT) law firm. For the next 14 years, Moss did nothing but IT transactions, which primarily involved software licensing. During that time, Moss was intimately involved in reviewing software license agreements and modifying the agreements as necessary to protect his clients. Moss was responsible for translating all of the technical concepts of a deal into contract-grade wording. Moss also did a substantial amount of systems integration work, which involved the installation of hardware and software applications to fit a customer's needs. In 2004, Moss retired from the firm.

C. Lim's Qualifications

Lim received her law degree in 1997 from Regent University School of Law in Virginia and then worked for three years at a litigation firm in Irving, Texas. She subsequently spent one year working in Hong Kong as in-house counsel to a company offering satellite and multimedia broadcast services in Asia and the Middle East. There she structured, negotiated, and drafted contracts with the company's technology partners.

Lim next moved to a position as in-house counsel for Landmark Graphics Corporation, a subsidiary of Halliburton Energy Services, where she had been working for four years at the time she applied for the position at BMC. At Landmark, Lim handled software licensing and open source code legal issues, and her resume reflects responsibilities including: negotiating software licensing, managing open source legal issues, managing alliance partner matters, and assisting with outsourcing. Lim handled several software OEM agreements and was extensively involved in software licensing. Lim interacted with numerous internal client groups, balancing the various interests of those groups to manage transactions and projects related to software issues.

D. ADEA Lawsuit

In March 2007, Moss filed a charge of age discrimination against BMC with the Equal Employment Opportunity Commission (EEOC) and in October 2007 the EEOC issued a Notice of Right to Sue letter. In January 2008, Moss filed the present action in district court. The district court granted summary judgment in favor of BMC, concluding that although Moss established a prima facie case of discrimination, BMC had advanced a legitimate, non-discriminatory reason for not hiring Moss. The district court held that, as a matter of law, Moss had failed to show that he was clearly more qualified than Lim in order to establish pretext, nor had he proffered any direct evidence of discrimination.


We review the grant of a motion for summary judgment de novo, applying the same standard as the district court. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir.1998). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). When considering a motion for summary judgment, the court views all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285 (5th Cir.2006). Mere conclusory allegations are insufficient to defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996).

Moss asserts that the district court erred in granting summary judgment because it improperly discounted his evidence that BMC's articulated reasons for not hiring him were pretext and because it improperly disregarded evidence of a discriminatory intent.

A. Pretext Analysis

Under the ADEA, [i]t shall be unlawful for an employer to fail or refuse to hire ... any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). To establish an ADEA claim, [a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., --- U.S. ----, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009).

Applying the framework from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), [a] plaintiff relying on circumstantial evidence must put forth a prima facie case, at which point...

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