The Sixth Circuit affirmed an employer’s summary judgment on an age discrimination claim brought by a disappointed employee who was denied a promotion after repeatedly failing the aptitude test passed by younger employees. Walden v. General Electric Int’l, Inc. No. 24-5141 (6th Cir. 10/24/24). The plaintiff could not show that he was qualified for the promotion when he continued to fail the test. The Court rejected his arguments that he was qualified because he satisfied the requirements of the job posting, which did not mention the established testing requirement. The Court also found that the younger, successful employees were not similarly-situated because they passed the test and he did not. The Court also rejected his speculative arguments that the younger employees did not complete the test by themselves.
According to the Court’s opinion, the plaintiff had worked
tool and die maker for decades, then accepted a job as machine operator with
the defendant employer. He later applied
for a tool maker position which required at least five years of experience and
promised the job to the qualified applicant with the most seniority. However, the employer had agreed with the
union several years earlier to require a passing 85% score on a written test
which was jointly developed. The
plaintiff failed the test with only an 80% score (which had been rounded up),
while two younger applicants passed with 100% and 92%. The next month, the union and employer agreed
to have a local community college develop and administer the test, which now
had written and hands-on components.
They also lowered the passing score to 70%. However, the plaintiff only received a score
of 51%, which the other, younger applicant received a score of 69.6%, which was
rounded up to 70%. The plaintiff filed an
EEOC charge, Unfair Labor Practice charge and sued bother the employer and the
union.
The Court also rejected each of his arguments attacking the
job posting and testing requirement.
First, he asserts that taking the
test was not actually a requirement because GE’s job posting did not mention
it. But the posting says that it’s not exhaustive. After the posting lists
certain minimum qualifications and a job description, a disclaimer states that
any “classifications and definitions are merely for purposes of identification
and general description and do not purport to be all inclusive or exhaustive of
the actual requirements of any job so classified or defined.” . . . . [He] parses these terms finely,
arguing that the non exhaustive “classifications,” “definitions,” and
“requirements” differ from “qualifications,” and so we should not read the
disclaimer to apply to the posting’s “qualifications.” This argument fails
because the posting on its face does not use these divisions strictly. For
example, it states outside the paragraph labeled “Qualifications” that
candidates must also have “satisfactory performance on their present job.” Id.
That’s clearly a minimum qualification. And in any event, we have noted that
“employers are not rigidly bound by the language in a job description.”
Browning v. Dep’t of Army, 436 F.3d 692, 696 (6th Cir. 2006). GE was free to
implement a testing requirement, multiple witnesses described how it did so,
and the company made [him] aware of that when he applied.
The Court also refused to treat the job posting as a
contract, which must be construed within its four corners under the parol
evidence rule:
But though the CBA was a contract,
the job posting was not. The CBA required GE to hire qualified candidates based
on seniority, but it did not dictate which qualifications GE could set in the
first place. Contract rules do not apply to discerning GE’s intentions with the
job posting.
[He] probably means to say that the
posting was an offer, one that he “accepted” by applying with the most
seniority. But the posting wasn’t even that. At best, it was an invitation to
be considered, or in contract-law terms, an invitation to offer, since nothing
would have obliged GE to take any candidates.
The Court also rejected his argument that 80% should have
been a passing score because the employer is entitled to set its own standards
and he could not show that the employer had ever used a lower standard. It also rejected his argument about
subjective grading since not all answers perfectly matched the grading key
verbatim and it also benefitted him at times since not all of his answers
perfectly matched the answer key.
Yet he fails to acknowledge that GE
graded the tests for substantive accuracy, not a verbatim match. [The
supervisor] stated that he used his “professional judgment based on decades of
relevant employment at GE Aviation, to determine when answers were
substantively correct, even if they did not exactly match the language set out
in the answer key.”
Finally, it rejected his argument questioning whether the
younger employees completed the first test by themselves because the photocopies
of the test had different levels of darkness in the written answers, some being
dark black and some being gray. This was particularly true when the other
employee authenticated his test sheet and the plaintiff did not have any expert
or other evidence to contradict that authentication.
It’s true that a few of [one
employee’s] letters appear more grey while the rest appear black, but the same
is true of the other tests in the record. When we look at those tests, the same
slight differences in color gradation show up. Keep in mind that we can see
only digital copies of the original documents on our electronic docket. To
support some alternative, nefarious explanation that would account for all the
tests, [the plaintiff] would have to claim (and provide evidence) that [the
supervisor] rigged each one, not just [his]. This [the plaintiff] has not done.
That a bit of color was lost in electronic translation does not support an
inference of discrimination.
The final five answers on [that
employee’s] test similarly provide no evidentiary basis for questioning the
test’s integrity. Though the writing appears in grey, that alone would not
permit a reasonable jury to infer that [he] did not complete the test. Perhaps
if GE claimed that [he] wrote only with a black pen, and a few answers appeared
in red ink, then a court could conclude from the document’s face that a jury
could reject GE’s version of events. Cf. Moyer v. Gov’t Emps. Ins., 114 F.4th
563, 569 (6th Cir. 2024) (finding it an open “factual question” whether a
document with multiple redlines and electronic comments could be
authenticated). Not so here. GE’s position is not that [he] couldn’t have used
different writing utensils, say, a pen on the first sitting and a pencil on the
second. It’s merely that [he] completed the test. So nothing [the plaintiff]
gives us contradicts GE’s position.
. . .
[The plaintiff’s] argument, at
bottom, is one of authentication under Federal Rule of Evidence 901. At trial, [he]
would have to prove that the document is what he claims it is—the work, in
relevant part, of someone other than [that employee]. And since GE has put
forth [that employee’s] testimony recognizing the handwriting, [the plaintiff]
has to convince us that he would have something in response. He doesn’t. He
gives us nothing concrete to work with, such as an expert analysis or another
handwriting sample for comparison, that could contradict the sworn testimony of
[the employee and the supervisor].
As for the second test, the Court rejected his argument that
the younger employee did not meet the minimum qualifications because he had
been a tool shop supervisor and not a regular employee.
The Court also rejected his claims against the union for
refusing to take his losing case to arbitration.
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.
