In the decision, the Court relates that the plaintiff and her boyfriend both applied for jobs at the defendant employer. The plaintiff had relevant experience which she listed on her application, but her boyfriend did not. He indicated that he would take any job, but she listed two possible positions – as a tow motor operator and a grinder -- and a “?.” She also put “?” when asked about her desired salary. Her boyfriend was hired but she was not. Her many phone calls inquiring about the status of her application were never returned. When she questioned the HR Director, she was told that her application was still being considered and she would be called in a few days. She was not.
The plaintiff retained an attorney, who wrote the company and alleged sex discrimination. When the company failed to respond, she filed a Charge of Discrimination with the EEOC and then filed suit for sex discrimination.
The district court concluded that the plaintiff could not prove a prima facie case because she only applied for tow operator and grinder positions and there were no tow operators hired and she was physically precluded from grinding However, the Court of Appeals concluded that there was a factual dispute because her application indicated that she would take any job when she put “?” next to those to job titles. Such an application put the employer on reasonable notice that she would take something other than the two listed jobs, particularly when she put the same mark next to desired salary.
The Court also found she was qualified for the jobs because she had five years of relevant prior experience, unlike fourteen of the men hired since the time of her application. In any event, the HR Director conceded that the plaintiff appeared to be qualified from the face of her job application.
The Court also found possible pretext in the HR Director’s explanation for why the plaintiff was not hired. In the affidavit filed with the motion for summary judgment, the HR Director indicated that the job application was limited to the two listed positions. However, in her deposition she testified that the employer’s “facilities” for women needed improvement and she delayed plaintiff’s application while waiting for these improvements. (Surprisingly, the plaintiff did not argue that this was discriminatory under Title VII even though Title VII prohibits discriminatory facilities.) Still later, the HR Director testified that a current employee and former co-worker of the plaintiff had relayed that the plaintiff was an unreliable employee because of unreliable transportation and childcare. Finally, her application was set aside after receiving letter from the plaintiff’s attorney which was full of “insults and lies.” (Again, it was surprising that the plaintiff did not bring a retaliation claim for a refusal to hire her after the employer had been accused of sex discrimination.).
Employers may have more than one reason for passing on a job candidate. And considered individually, any of [the employer’s] reasons for not hiring [the plaintiff] could explain its hiring decision. The problem here, however, is that some of its reasons are inconsistent at best, if not outright contradictory, and are thus “so intertwined” that the credibility of any of them is in doubt. . . . Moreover, “an employer’s changing rationale for making an adverse employment decision can be evidence of pretext." Here, it would be a logical feat for a jury to believe both [the HR Director’s] testimony that she did not hire [the plaintiff] because she thought [the plaintiff] did not apply for more than two positions and that she did consider her more broadly, yet passed because she received damning input from a former coworker, and because the women’s bathrooms were not up to par. A contradiction by the same employee in the same deposition raises serious credibility concerns; either [the HR Director] considered [the plaintiff] for more than two positions or she did not.
The Court majority also found it problematic that the HR Director claimed to keep the plaintiff’s application open – despite receiving negative reports from a former co-worker – until the inflammatory letter received by the plaintiff’s attorney. During the time period between when plaintiff applied and her attorney wrote the company, the employer hired 22 men – many of whom had no relevant prior experience for their new job.
In contrast, the dissent argued that the HR Director’s testimony was not inconsistent. Although the HR Director “honestly believed” that the plaintiff only applied for two positions, she held her application open in case one of those positions ultimately became available. Nonetheless, the majority found this to be irrelevant because the plaintiff presented evidence that the employer sometimes hired men for positions different from the jobs listed on their applications. In other words, the employer was limiting the female applicant to the jobs listed on her application, but was not similarly limiting male applicants.
Our conclusion that these inconsistencies suggest pretext does not mean that a company is precluded from pursuing alternative lines of defense to convince a jury that its decision was not motivated by sex discrimination. But at the summary judgment stage, a plaintiff may meet her burden of demonstrating pretext by showing, in addition to proffered evidence, that an employer’s reasons are so incoherent, weak, inconsistent, or contradictory that a rational jury could conclude the reasons were not believable.
Finally, the Court found no evidence that any of the men hired instead of the plaintiff were more qualified than her or that her medical condition would have disqualified her from non-grinder positions.
Therefore, the case was remanded for the district court to hold a trial on the plaintiff’s sex discrimination claim. (The plaintiff’s request to amend her complaint to add a public policy claim based on the retaliation she suffered from her attorney writing a letter was denied on the grounds that Ohio only recognizes public policy torts in wrongful discharges, not in failure to hire disputes).
Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0634n-06.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
