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Moss v. BMC Software, Inc.

Appellant brought this case alleging that a software company 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, appellant was 68 years old. The company instead hired a younger lawyer. The district court granted summary judgment in favor of the company, concluding that appellant 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. The 5th U.S. Circuit Court of Appeals affirmed. 5th U.S. Circuit Court of Appeals, 09-20488, 07-06-2010

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Published opinion

Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.

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.

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