Jack Toundaian, Plaintiff-appellant, v. Eastern Michigan University, Defendant-appellee, 949 F.2d 397 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 949 F.2d 397 (6th Cir. 1991)

Dec. 4, 1991


Before NATHANIEL R. JONES and MILBURN, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

Jack Toundaian, proceeding by and through counsel, appeals from the judgment of the district court dismissing his complaint filed pursuant to the Age Discrimination in Employment Act (ADEA). 29 U.S.C. § 621, et seq. The parties have waived oral argument. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary damages, Toundaian alleged, inter alia, that Eastern Michigan University did not hire him as its Director of Purchasing because of his age. He also alleged that he had an employment contract as the bookstore manager for Eastern Michigan University and that the contract was breached when his employment was terminated mid-year. The remaining allegations contained in the complaint have been abandoned on appeal and will not be discussed herein.

The case was submitted to a magistrate judge who recommended that the defendant's motion for summary judgment be granted. The magistrate judge concluded that Toundaian could not show that he was the best qualified candidate for the position and that he could not show that he was not hired on the basis of his age. The magistrate judge also concluded that the claim for breach of contract was without merit. The district court adopted the magistrate judge's report and recommendation over Toundaian's objections.

Upon de novo review, see Hines v. Joy Mfg. Co., 850 F.2d 1146, 1149 (6th Cir. 1988), we find no error.

Toundaian was the 48 year old manager of Eastern Michigan University's bookstore when his position was terminated as the result of the University's decision to lease the bookstore operation to a private corporation. Toundaian applied for the vacant position of Director of Purchasing but was not selected for employment. Instead, the job went to a 34 year old man.

The issue on appeal is not whether Toundaian established a prima facie case for employment discrimination. Assuming arguendo that a prima facie case was established, the issue is whether Toundaian carried his burden of proof by rebutting defendant's legitimate, nondiscriminatory explanation for not hiring him. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). We hold that he did not carry his burden of proof. The record is devoid of any evidence indicating that the selection committee made its decision based on anything other than a good faith comparison of the merits of each applicant's credentials.

Similarly, Toundaian failed to establish the existence of an annually renewable employment contract for the term of one year and cannot therefore state a claim for breach of contract.

Accordingly, the judgment of the district court is hereby affirmed pursuant to Rule 9(b) (3), Rules of the Sixth Circuit.