Sixth Circuit Rejects Discrimination Claim After Plaintiff Repeatedly Failed Testing Requirement Not Mentioned in Job Posting

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 (6^th 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.

Sixth Circuit Significantly Alters Burden of Proof for Hostile Work Environment Claims

Yesterday, the Sixth Circuit affirmed the summary judgment dismissal of an age discrimination claim, but reversed dismissal of the companion hostile work environment claim brought by a former police officer.    McNeal v. City of Blue Ash, No. 23-3180 (6^th Cir. 9/23/2024).  The Court agreed that the plaintiff officer could not show that his termination – or the underlying disciplinary actions – were discriminatory or pretextual.  However, he could possibly show a hostile work environment based on the cumulative effect of closer scrutiny and supervision than his younger co-workers received, a denigrating assignment that could be designed for him to fail and his supervisor’s “glee” in imposing disciplinary actions against him.   The Court’s opinion suggests that hostile work environments need not be severe or subjectively hostile when discriminatory employment actions need not be significant in order to be actionable: “Because hostile-work- environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show “significant” harm applies to both types of claims. . . Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.”

According to the Court’s opinion, the plaintiff worked for 33 years as a police officer and was the oldest officer in the department.  After his supervisor was promoted to his role, the plaintiff claimed that he was subjected to closer scrutiny.  For instance, after he challenged his 2015 performance evaluation, he was assigned to conduct a traffic study which had never been assigned to a patrol officer before and which he lacked qualifications to conduct.  He alleged that it was both retaliatory for his performance evaluation challenge and based on his age.   He then received progressive disciplinary actions over the next two years for infractions, such in April 2016 for failing to turn on his microphone during traffic stops (after he had first been informally counselled when he had been identified as a primary offender of that policy).   In June 2018, the plaintiff and another officer violated a number of policies when responding to a medical emergency, including failing to use lights and sires, failing to notify that they were not using lights and sirens, and speeding without lights and sires, etc.  

When the individual died from the medical emergency, an investigation was conducted into the police response.  The investigation revealed that the plaintiff had previously violated the same policies.  When the investigators checked his prior traffic stops, they discovered that he had not used his audio (which he had received formal disciplinary action for in 2016).  As they checked his prior traffic stops, they discovered that he only turned on his audio in 8 stops that year (out of 38) and that he had never checked his video equipment in his109 shifts so far that year as required by departmental policy.  When he claimed that he generally turned on his audio and checked his equipment, they concluded that he was being intentionally dishonest, which by itself, is a terminable offense.   He was given the option of retiring or submitting to a pre-disciplinary hearing.  He rejected both offers and was terminated.  His grievance was rejected in arbitration.    He then filed suit.    The trial court granted the City and individual defendants summary judgment on all claims. 

The Court agreed that the plaintiff could not show that he was terminated on account of age discrimination.   The ADEA requires that age be the determinative factor in his termination:  that he would not have been fired but for his age.  In this case, assuming that he could show a prima facie case of discrimination, he could not show that his employer lacked a legitimate basis for his termination based on his misconduct and prior disciplinary history.  The plaintiff conceded that he could not disprove the factual basis of any of his prior disciplinary actions or his termination.

The Court rejected his argument that his termination was pretextual because it did not actually motivate the decision to terminate his employment: 

Even if it is true that the Department generally scrutinized the performance of older officers to a greater degree than younger officers, [the plaintiff] has not presented sufficient evidence that the reasons given for his termination—an extensive list of disciplinary infractions that included untruthfulness—were not the true reasons. [He] does not contest, for example, that the Department would be required to disclose his untruthfulness to defendants at trial, rendering him unable to perform an essential job duty. Nor does [he] dispute that the Department was legitimately concerned that his pervasive failure to follow the recording policies jeopardized the Department’s ability to gather evidence and limit its exposure to liability. Because the ADEA requires plaintiffs to show that age is the “but-for” cause of the disciplinary action—not simply a motivating factor—[he] cannot proceed if his termination was at least partly caused by Defendants’ non-discriminatory reasons.  . . .  He does not meet this burden on the second prong.

The Court also rejected the argument that his conduct was insufficient to warrant his termination, mostly because the other responding officer was treated similarly to him and given the same option to voluntary retire or submit to a pre-disciplinary hearing.  For that matter, the plaintiff did not address the dishonesty issue at all in his briefs.

That being said, the standard for proving a hostile work environment is much less than proving discrimination.  However, “allegations of discrete discriminatory acts otherwise actionable as independent disparate-treatment claims do not by themselves constitute harassment supporting a hostile-work-environment claim.” (italics added for emphasis).  Thus, it was conceded that his suspensions and termination could not be considered as evidence of a hostile work environment.   Rather, a hostile-work-environment claim is “based on the cumulative effect of individual acts,” many of which are not actionable on their own.”

an adverse employment action can affect employment terms or conditions on two registers. By definition, an adverse action can cause a change in the terms or conditions of employment. But an adverse action deployed strategically as harassment can also add to a climate of hostility that represents a different change in the terms or conditions of the job. To use the Supreme Court’s words, a discrete discriminatory act may have “occurred” on one day and thus be actionable, but it also may be part of a separate harm that “occurs over a series of days or perhaps years.”  . . . . In the hostile-work-environment context, we exclude adverse actions that operate only on the first register, but consider the ones that operate on the second. (emphasis added). 

In this case, the plaintiff “cited testimony that older officers were regularly subjected to greater scrutiny, and highlighted examples showing that younger officers did not face discipline for their policy violations.”    He also alleged that he was the only officer whose performance was investigated over an entire year (when the investigators reviewed each of his traffic stops).   “We focus on the harassing effect of these incidents to assess whether the ongoing monitoring created a climate of hostility in the aggregate (and combined with other actions), not whether each incident alone changed [his] employment status. Therefore, [his] evidence of higher and disproportionate scrutiny may be used to support his hostile-work-environment claim.”  In addition, a number of officers provided evidence that he was disciplined for infractions that other officers violated with impunity. 

He also cited the traffic study that he had been assigned:

Thus, the evidence supporting a hostile-work-environment claim is not the unfavorable assignment itself but the fact that the Department allegedly engaged in conduct designed to (1) frustrate, demean, and embarrass him in front of his coworkers; (2) justify more disciplinary action against him when he inevitably fell short of the unreasonable expectations; and (3) force him further under the microscope by requiring him to report to two supervisors on his progress weekly. The significance of the traffic study for hostile-work-environment purposes is that the Department allegedly used the assignment strategically in a broader effort to discredit [the plaintiff].

                   . . .

                  The [Supreme] Court has held that a hostile-work-environment claim is “based on the cumulative effect of individual acts” occurring over the span of weeks, months, or years.  . . .  An individual act within a hostile-work-environment claim “may not be actionable on its own,”  . . . —but there is no requirement that the act not be independently actionable. As the Court recently explained, a hostile-work-environment claim “includes every act composing that claim, whether those acts are independently actionable or not.”  . . .  Thus, “even if a claim of discrimination based on a single discriminatory act is time barred, that same act could still be used as part of the basis for a hostile-work-environment claim.”  . . . That conclusion makes good sense. Whether a given act contributes to a hostile work environment does not turn on whether that act might support a separate claim.

To reconcile Ogbonna-McGruder with Morgan and Green, we read Ogbonna-McGruder to bar a plaintiff from including in a hostile-work-environment claim only those discrete acts that result in a separate discriminatory harm to the terms and conditions of employment that does not “contribut[e]” to the alleged environment of harassment. (emphasis added).

The plaintiff also claimed that most of his prior disciplinary actions were part of this campaign of harassment against him:

even if some of these disciplinary incidents were separately actionable, we would still consider whether the incidents were also weaponized as tools of harassment in the “same actionable hostile work environment practice.”  . . .  Here, there is evidence indicating that the Department imposed discipline as a vehicle to target and belittle [the plaintiff]. Notably, [he] points to testimony that [the Chief] was “grinning from ear to ear,” “smiling,” and “giggling” when discipline was meted out to [him]. . . . .  [The Chief] reportedly asked about [his] reaction to some discipline with excitement and enthusiasm, as though “he [was] getting off, he [was] enjoying the fact that an employee of his [was] being messed with.”

At any rate, these disciplinary incidents would not be independently actionable. Only discipline causing “some harm respecting an identifiable term or condition of employment” is actionable on its own.  . . .  For example, this court previously held that “[a] written reprimand, without evidence that it led to a materially adverse consequence such as lowered pay, demotion, suspension, or the like, is not a materially adverse employment action.”  . . .  Here, [the plaintiff] was disciplined in several ways that likely do not meet the definition of an “adverse employment action,”  . . . , including “documented counseling,” an “oral reprimand,” and a “written reprimand.”  . . .  When considering the facts in the light most favorable to [him], none of these incidents is actionable on its own in a disparate-treatment claim.

The Court also lowered the evidentiary bar on proving “severe” harassment:

Because hostile-work-environment claims arise out of the same statutory language as disparate-treatment claims, Muldrow’s holding that Title VII does not require plaintiffs to show “significant” harm applies to both types of claims.  . . .  Instead, the employer’s discriminatory action—or, as is the case here, the work environment—needs to produce “some harm respecting an identifiable term or condition of employment.”  . . . .  Thus, when we consider whether a hostile-work environment was severe or pervasive enough to violate Title VII, we effectively ask whether it left an employee “worse off respecting employment terms or conditions.” . . .

                   . . . [The plaintiff] is not required to show that the harassment “seriously affect[ed] [his] psychological well being” or caused him to “suffe[r] injury”—only that the environment “would reasonably be perceived . . . as hostile or abusive.”  . . .  Importantly, [he] does not need to show that “each incident of harassment standing alone is sufficient to sustain the cause of action,” but that the incidents, taken together, make out such a case.  . . . . Because the facts here present a close call regarding severity, we decline to do the jury’s job for it: [he] cites enough evidence for a reasonable juror to conclude he was subjected to a hostile work environment.

                   . . . .

Here, a jury could reasonably conclude that McNeal’s conditions of employment were altered. For example, if a jury agrees that McNeal was uniquely targeted for minor policy violations and subject to significant surveillance, he would have had a different level of discretion than other officers.

(emphasis added)

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.

Ohio Court Rejects Age Discrimination When Plaintiff Was Not Replaced, Could Not Identify Similarly-Situated Comparator and Employer Had Honest Belief.

Last month, the Lucas County Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim because the plaintiff employee could not show that he had been replaced, was treated less favorably or that his termination was pretextual when the employer had an honest belief supporting the reason for his termination.  Hardy v. The Anderson's, Inc., 2022-Ohio-3357.   The Court agreed that the plaintiff could show that he was minimally qualified for his position based on his prior experience and promotion even though he had a recent negative evaluation.  However, the plaintiff could not show that he had been replaced when existing employees assumed his prior job duties in addition to their existing responsibilities.  He also could not show that he was treated less favorably than a substantially younger employee when that employee was not similarly situated because he only lived a few hours/miles outside his sale district and had fully informed the manager of his living arrangements and had not tried to hide them, unlike the plaintiff who moved thousands of miles from Michigan to the Caribbean to be with his second wife.   Finally, there was no dispute that the plaintiff had not been candid about his living arrangements with his manager and that the manager blamed his relocation for his poor job performance.  Whether he lied or was merely evasive, whether or not it was necessary to spend a certain amount of time in the sales district meeting with customers, and whether or not he was required to have reported this time as vacation instead of collecting his regular salary, the Court had no trouble finding that no one else had engaged in similar behavior and it justified his termination.  The  Court also rejected the argument that the manager’s prior comment referring to him as a dinosaur could constitute direct evidence of or pretext for discrimination.

According to the Court’s opinion, to save his second marriage, the plaintiff had relocated to his wife’s home country in the Caribbean for extended periods of time without telling his new manager. While the plaintiff’s initial performance evaluation in his new management position had been favorable (while he had been living full-time in his sales district), his second evaluation had been negative even before his new manager found out that he had been spending most weeks in the Caribbean.   The plaintiff admitted that he had not submitted certain weekly report or learned a new computer system.  The plaintiff alleged that his new manager once referred to him as a dinosaur.  When his job performance suffered, the manager found out about his relocation, confronted him and immediately terminated him.    Following the termination, the manager assumed his duties for a few months before restructuring the position and hiring a new employee to perform parts of the duties in one region.    

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.

Although Plaintiff Was Not Plainly Superior Candidate, He Could Still Prove Pretext With Disputed Comments

On Monday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment in an age discrimination failure-to-hire case, but affirmed dismissal of the plaintiff’s retaliation claim.   Aday v. Westfield Ins. Co., No. 21-3115 (6^th Cir. 1/24/22).   The Court discussed alternative ways for a plaintiff to prove that an employer’s explanation is pretextual in a failure to hire case and permitted the case the be resolved by a jury based on only two ageist comments from debatable decisionmakers.  The Court agreed that the plaintiff had not proven that he was the plainly superior candidate, in part because of the comparative leadership experience and because that he wanted to remotely manage his team from Seattle, far away from any company office.  However, when considering what would typically be “stray remarks” from arguably non-decisionmakers that may have indicated an age bias and a discriminatory atmosphere together with evidence that he had comparable qualifications to the successful candidates, the Court found sufficient evidence of pretext to let a jury decide the outcome.  The Court also rejected the argument that the employer's counterclaim was objectively baseless. 

Background

According to the Court’s decision, the 63-year old plaintiff has worked successfully for 40 years and received both promotions and transfers into leadership and other significant positions.  When his domestic partner accepted a job in Seattle, he sought authorization to work remotely from there or, in the alternative, to be transferred into a different management position for the Central U.S. which he would manage remotely from Seattle.  His own manager supported his efforts.  While he was denied authorization to work remotely, he was permitted to work from Ohio as long as he wished.   Although he interviewed well for the new management position, a 50-year old employee from Toledo with 22 years of comparable experience who had been a direct report of the hiring manager was chosen.   The employer later explained that there were questions about his passion for the position and his intent to manage his team from Seattle.

The plaintiff claimed that the hiring manager’s superior once joked to him over a lunch that he would be the next person to retire.  He also alleged that a co-worker claimed to have spoken with the interviewing/draft management team about the hiring decision and reported that they felt that it was time for the plaintiff to retire. He eventually retired, moved to Seattle and brought suit for age discrimination.  The employer filed a counterclaim for misappropriation of trade secrets and the plaintiff responded by amending his complaint to add a retaliation claim.  The trial court granted summary judgment dismissing the claims and the plaintiff appealed.

There was no dispute about whether the plaintiff had alleged a prima facie case of age discrimination and the focus of the Court’s opinion was on whether or not he had created a factual dispute (for a jury to resolve) about whether the employer’s explanation was pretextual.  The standard way to show pretext is “that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.”  However, in a failure-to-hire context, a plaintiff

may prove pretext through the relative-qualifications test. . . . that either (1) he was the “plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former,” or (2) he “was as qualified as if not better qualified” than Somogyi and Zito and the record contains “other probative evidence of discrimination.”

Not a Plainly Superior Candidate

The Court found that the plaintiff failed to produce objective evidence that he was plainly superior candidate. Courts will not act as a super-personnel department to second guess business decisions.   “If two reasonable decisionmakers could consider the candidates’ qualifications and arrive at opposite conclusions as to who is more qualified, then clearly one candidate’s qualifications are not significantly better than the others.” In other words, “[s]imply being “more qualified” is not sufficient to prove Plaintiff is the plainly superior candidate.”  Similarly, giving a good job interview does not make one plainly superior.

While the plaintiff had more industry and technical expertise than the other candidates, simply being more qualified than them on one aspect of the job was insufficient by itself to satisfy his burden of proof.  “[E]ven if Plaintiff were considered the candidate with marginally better technical experience, no reasonable juror could conclude he was the plainly superior candidate under the Sixth Circuit’s exacting standard, especially considering technical experience is only one facet of the job.”

The Court was less impressed with his prior “leadership experience.”  The hiring manager recalled his six years leading a team and he had seemed stressed and overworked.  Indeed, he had left that position to become an individual contributor as an claims specialist and this contributed to the decision that he lacked sufficient desire for a leadership role.  One of the other candidates had 11 years of “incredible” leadership experience and the other had comparable leadership experience.  “In terms of leadership experience, no reasonable jury could find that Plaintiff was the plainly superior candidate.”

The Court also disagreed that plaintiff’s desired work location in Seatle made him more qualified to supervise a team in Arizona, Colorado, Minnesota and Illinois.  However, “anything requiring in-person attendance would incur a greater expense” because the other candidates were working more closely to the rest of the company.  This concern with his remote work location had been expressed to the plaintiff repeatedly throughout the process.

In his best-case scenario, a reasonable juror could conclude that Plaintiff had marginally better technical training, had better leadership experience than Zito , and was in a marginally better geographic location. This is not enough.

Plaintiff has not produced enough evidence from which any reasonable juror could conclude that he had better leadership experience than Somogyi.

Comparative Qualifications with Some Other Evidence

Plaintiff could not show that he was plainly superior because of his comparable leadership experience and questions about his ability to effectively manage remotely from Seattle.  To prevail on the alternative argument, the plaintiff need not show that he was the indisputably best candidate; he need only show that his qualifications made him arguably “as qualified.”  He satisfied this burden with the employer’s admission that he had been ranked as one of the top four candidates.  

The second prong requires other probative evidence of discrimination.  For this, the plaintiff proffered two statements made to him: a joke about him being the next to retire and a disputed allegation by a co-worker that the hiring managers had expressed their belief that he should retire.  The Court held this was sufficient evidence:

By themselves, neither  . . . .  comment would likely be sufficient to create a genuine dispute. However, considering the comments together, we believe Plaintiff has produced probative evidence of discrimination.

The parties disputed whether the joke was made by anyone involved in the decision to hire the plaintiff.  However, the jokester was the hiring manager’s manager and had the authority to override her decision (although he had rarely done so). “Nevertheless, we need not determine whether Bowers was a decisionmaker because this Court has ‘held that discriminatory remarks, even by a nondecisionmaker, can serve as probative evidence of pretext.’” Further, it was irrelevant at this stage that everyone admitted the comment was a joke. “This Court has held, however, that statements may be probative evidence of discrimination even if they are made as a joke.”  This joke could contribute to a discriminatory atmosphere where discriminatory decisions are made.

We noted that evidence of a discriminatory atmosphere “may serve as circumstantial evidence of individualized discrimination directed at the plaintiff.” . . . And while a workplace atmosphere replete with discrimination is not conclusive proof that an individual plaintiff is the victim of age discrimination, a discriminatory atmosphere “‘tend[s] to add “color” to the employer’s decisionmaking processes and to the influences behind the actions taken with respect to the individual plaintiff.’” . . .  Here, Bowers was a very senior leader at Westfield and his willingness to comment on and “joke” about a junior employee’s retirement status in the midst of that employee’s search for a new position could reasonably be interpreted as contributing to a discriminatory atmosphere at Westfiel

While the co-worker admitted telling the plaintiff that he should retire, he denied ever speaking with any of the hiring managers about the decision.   Nonetheless, the Court found that a jury could decide to credit the plaintiff’s memory – that his co-worker had in fact claimed to have spoken with the hiring managers – over the co-worker’s denial that he had ever done so. 

General Pretext

The Court rejected the plaintiff’s other evidence of pretext.  Although he was able to cast sufficient doubt on one of the employer’s explanations, he did not have evidence showing that the other explanations lacked a basis in fact, etc.

With respect to plaintiff’s perceived lack of passion for the position, he pointed out that one of the successful candidates had applied for any and every position after her current position had been eliminated.    The other candidate had previously left the industry altogether at one point to pursue a different field.   The plaintiff had also scored highly on an assessment.  “Considering all this, a reasonable juror could conclude that Lilly’s explanation that Plaintiff lacked passion for the Unit Leader position had no basis in fact and was pretextual.”

Plaintiff has cast doubt on some—but not all—of the reasons Defendants articulated for not hiring him. While [the hiring manager’s] explanation that he lacked passion for the Unit Leader position arguably has no basis in fact, Plaintiff has failed to cast doubt on [her] subjective beliefs that one candidate had more relevant experience and the other candidate presented a more creative plan. Since these are both nondiscriminatory bases for choosing to hire [them] over Plaintiff, Plaintiff has not created a genuine dispute under the general pretext test.

No Retaliation for Counterclaim

The plaintiff’s retaliation claim was based on the employer’s filing of a counterclaim for misappropriation of trade secrets.  The Court rejected this argument as well. 

While ‘”an employer is not barred from filing a well-grounded, objectively based action against an employee who has engaged in a protected activity,”. in some situations, the filing of counterclaims may constitute adverse employment action.  . . . The central question is whether the counterclaims are filed “not in good faith and instead motivated by retaliation.” . . . Stated differently, the Court must find (1) “the employer acted with retaliatory motive” and (2) that the employer’s counterclaims “lack a reasonable basis in fact or law.”

The employer’s claim was based on the plaintiff emailing trade secrets to the personal email accounts of himself and his domestic partner.   The trial court concluded that the plaintiff had not used improper means to access the information in violation of any policy and there was no evidence that anyone other than the plaintiff had accessed any trade secrets.   The plaintiff argued that the claims were “objectively baseless” because of the lack of precedent condemning emailing confidential information to an employee’s personal email account. “A claim is not objectively baseless simply because it fails.”

Defendants’ argument is not nearly as outlandish as Plaintiff tries to make it seem. Courts around the country have considered whether emails sent to oneself can constitute misappropriation. For example, in Aon PLC v. Infinite Equity, Inc., No. 19 C 7504, 2021 WL 4192072, at *14 (N.D. Ill. Sept. 15, 2021), the court found there was a reasonable likelihood of success on a misappropriation claim when an employee “forwarded emails from his Aon email address to his personal email address.” See generally
Mintz v. Mark Bartelstein & Assocs. Inc., No. 2:12-CV-02554-SVW-SS, 2013 WL 12182602, at *4 (C.D. Cal. June 14, 2013); CPI Card Grp., Inc. v. Dwyer, 294 F. Supp. 3d 791, 809 (D. Minn. 2018). Having failed to prove Defendants’ counterclaims lack a reasonable basis in fact or law, for this reason alone, Plaintiff’s claim of retaliation must fail.

The Court also rejected the argument that the employer’s counterclaim was retaliatory because it knew that other employees emailed information to themselves but only sued him for it after he brought an age discrimination claim.

There are many reasons an employer would not litigate every infraction employees commit. However, after an employee has hauled an employer into court, it is entirely reasonable for the employer to file its claims for minor infractions. Additionally, Defendants only filed the counterclaims after Plaintiff brought the conduct to their attention. During the parties’ initial disclosures, Plaintiff mentioned he had emailed documents to his personal email account. Defendants sought leave to file the counterclaims after taking the time to audit Plaintiff’s email account. Finally, these were compulsory counterclaims that, if not filed in the present action, would be barred in future litigation.

 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.

Belmont County Appellate Court Affirms Employer’s Summary Judgment on Age Discrimination Claim

Last month, the Belmont County Court of Appeals affirmed an employer’s summary judgment when a former employee challenged the elimination of her Marketing Director position on the basis of age discrimination.  Cunningham v. Perry & Assocs., 2021-Ohio-4295.  The trial court determined that the plaintiff had not been replaced as required to carry her burden of proof because her duties were divided, some were outsourced and the rest spread among the remaining employees.  That the employer considered assigning some of her job duties to a younger male if he were ever rehired does not constitute replacement.  “An intent by an employer for another employee to assume only some duties does not constitute replacement.” Further, the plaintiff failed to produce evidence that the employer’s explanation was pretext for age discrimination.  It was undisputed that the employer had explained that the cost of the Marketing Director position outweighed the benefits, particularly when the Cambridge office was losing money.

According to the Court’s opinion, the plaintiff had initially been hired on a contract basis and then was hired as the company’s Marketing Director when she was 60 years old.   After challenging her initial 90-day performance evaluation, she alleged that she was given a $5k raise in lieu of a $5k bonus.  However, a few months after she brought up that the “raise” was not reflected on the following year’s pay stub, the employer decided to eliminate her “position because it determined that the cost of the Marketing Director’s salary and benefits outweighed the marketing results [it] realized during [her] employment. During this time-frame, [its] Cambridge, Ohio office was losing money. [It] ended up outsourcing its digital and social media marketing and redistributing the remainder of [her] job functions among its existing employees.”  Admittedly, no younger employees were hired to assume any of her duties, although she alleged that the employer considered re-hiring a younger male employee to assume some of her duties.

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.

Sixth Circuit Reverses Employer’s Summary Judgment in Age Discrimination and Retaliation Case

 Earlier this month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment  on an age discrimination and retaliation case where the employee had been terminated in a reduction in force. Sloat v. Hewlett-Packard Enterprise Co., No. 20-6169 (6^th Cir. 2021).  After five years of excellent performance evaluations, the plaintiff’s new manager had asked him at least 10 times when he planned to retire and encouraged staff to refer to him as “Uncle.”  When confronted with whether he had a problem with the plaintiff’s age, he screamed, spoke to the plaintiff very little over the next four months, gave him the second worse possible mid-term evaluation and recommended him for termination.    In short, the court concluded that the plaintiff had produced enough evidence that the jury—and not the trial judge --  should be able to decide what the employer’s true motivation was in terminating his employment.

According to the Court, the plaintiff trainer had worked with stellar performance evaluations, incentive compensation and promotions until he was transferred in November 2016 after 6 years to a new division, which he had been told wanted him to roll out the training program that he developed.  However, it was apparent that this was not the true reason for his transfer because his new manager had no knowledge of or interest in his training program and found his position to be redundant and without any assigned responsibilities or recognition of achievements. The plaintiff was the manager’s oldest direct report.   The manager’s chief of staff called him by the wrong name and then referred to him as “Uncle” thereafter, with support from the manager.  The manager asked him at least ten times when he planned to retire and why he was still there and interacted him on an extremely limited basis.  After the plaintiff complained about age discrimination, the manager then began advocating for him to be terminated. In this mid-year performance evaluation, the manager gave him the second lowest score.  The manager also became very angry when the plaintiff raised his concerns with HR and with the manager directly.  HR refused to conduct any investigation of the plaintiff’s concerns.  The plaintiff was informed of his termination by a different executive, who freely admitted that he was merely the messenger and not the decisionmaker.

While the Court agreed that a few inquiries about retirement plans could be necessary or prudent, badgering an employee – especially considering their limited interaction – was evidence of age discrimination.  That the employer attempted to explain the inquiries was merely an attempt to shift the summary judgment burden and did not give favorable inferences to the non-moving party:

That response is inexplicable: one or two inquiries along these lines from one’s boss might be dismissed as isolated; even more inquiries could form a pattern; but ten inquiries, a jury could easily find, is a campaign. [The employer] also responds that [the manager] asked about [the plaintiff’s] retirement plans “in the context of [the manager] telling [the plaintiff] that he did not appreciate his constant emails.” Br. at 33. But that point merely views the evidence in a light favorable to [the employer]; that [the manager] complained about [the plaintiff’s] emails in these conversations does nothing to preclude the straightforward inference that [the manager] thought [the plaintiff] should retire because [the manager] thought he was too old for the job. In sum, [the plaintiff] has sufficient evidence that [the manager] was biased against him because of his age.

[The manager’s] inquiries about retirement also support an inference that [he] engaged in a series of actions, driven by bias, whose intended effect was to drive [the plaintiff] out of the company. At first (one could reasonably infer) [the manager] pushed to have [the plaintiff] leave voluntarily; to retire from a position is to leave it. That [the manager] gave [the plaintiff] “the lowest bonus of all his direct reports”—and told [him] as much directly—supports this view. So does the fact that, in March 2017, [the manager] asked [the plaintiff], “Why are you still here?” ([The manager] did not dispute that point either in his deposition.) But [the plaintiff] did not leave voluntarily, so (one could reasonably infer) [the manager] sought to terminate him. [His] first attempt took the form of a proposed one-person workforce reduction. . . —in which [the plaintiff’s] position alone would be eliminated.  [The manager] abandoned that plan only after [HR] flagged it for “legal attention” and  . . .  advised him to wait for a company-wide workforce reduction that was then pending . ..

The Court also found sufficient evidence that the manager, and not the executive, had been the decisionmaker or the executive had relied on the manager’s recommendation and explanation for why the plaintiff should be fired.   The executive had limited and only favorable impressions of the plaintiff’s work and had been unaware of how he had been treated by the manager.   There was no independent investigation and no break in the chain of causation showing that the plaintiff had been terminated for reasons unrelated to his manager’s alleged discriminatory animus.   The Court concluded that a reasonable jury could find that the manager’s discriminatory animus based on the plaintiff’s age was the but-for causation, or had a determinative influence on the outcome of the decisionmaking process.

The Court similarly found that the plaintiff could satisfy his burden of proving that retaliation was a but-for cause for his termination:

As to that question, Sloat emphasizes that Hagler “scream[ed]” at him and was “furious” when (per Iyer’s advice) he told Hagler directly that he thought Hagler was discriminating against him because of his age. Sloat also has evidence that, after that conversation, Hagler avoided speaking with him (by Hagler’s count, they spoke seven times in the next four months), stripped him of all his remaining responsibilities as to Ropes, and gave him his worst performance review ever. Hagler also tried to get Sloat transferred off his team and—when that failed—sought to terminate him in a one-person “WFR.” Moreover, Iyer’s email flagging that “situation” for “legal attention” and an examination of “the rationale and any risks associated with it” supports an inference that even she thought the one-person “WFR” was potentially retaliatory. Thus, much of the same evidence that supports Sloat’s claim of age discrimination likewise provides sufficient support for his prima facie case for the retaliation claim.

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.

Sixth Circuit: Unfairness is No Substitute for Evidence of Discrimination

On Monday, the Sixth Circuit affirmed the dismissal of an age discrimination claim brought by a salesman who was terminated after he refused to resign following the hire of (younger and higher paid) salesmen as he had requested.  Treadway v. California Products Corp., No. 15-5718 (Aug. 1, 2016).   The Court rejected the plaintiff’s argument that he proved direct evidence of discrimination by repeated references to his retirement or semi-retirement because those comments were not connected to his age but were related to his request to “slow down” and reassign most of his territory.  “The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.“ Further, the Court rejected the plaintiff’s argument that the employer’s explanation for terminating his employment – to save money by allocating his minor remaining responsibilities – was pretextual.  While the employer’s decision might have been unfair and/or unwise, it was honestly held and not completely unworthy of belief.  Indeed, the Court concluded that the plaintiff himself was responsible for initiating the chain of events by asking to slow down, by seeking reassignment of most of his territory, and frequently inquiring when his replacement would be hired and that he only changed his mind when his new employer ultimately decided not to retain him as an independent contractor for his local and Bahamas territories.

According to the Court’s opinion, when the plaintiff was 66 years old, he requested to slow down and reduce his multi-state sales territory to eliminate most travel.  After discussions with his supervisor, it was decided to hire new salesmen to assume most of his duties and he would be limited to the area within 40 miles of his home and the Bahamas.   His supervisor assumed that he would retire by the end of 2009 based on their discussion, but the plaintiff denied ever expressing an interest in retirement.  While he was the oldest salesman in the company, all of the other salesmen were over 49 and most of them were over 60.  Initially, two other salesmen would lose their territories, which the plaintiff and another salesman would assume (as extra work), then new salesmen would be hired to take these territories and most of the plaintiff’s former territories.  At that point, the plaintiff would become an independent sales agent, lose his $48k/year salary and be paid strictly on commission, to be re-evaluated annually. 

Some months later, the employer was acquired by the defendant company.  Plaintiff was told to be patient while the new company evaluated its needs and options, so no one was hired to assume his newly expanded territory as had been contemplated a few months earlier.  His supervisor requested that the new company make plans to replace the plaintiff based on his impending retirement.  The plaintiff saw and never objected to the plan which mentioned his impending retirement, but no replacements were hired for more than two years and his salary remained unchanged.  The plaintiff continued to call his supervisor inquiring about the hiring of a replacement because he was stretched thin over four states. 

Finally, near the end of 2011, the defendant hired a new salesman to assume most of his territory.  He was 57, had prior industry and marketing experience and was paid $70K/year ($22k/year more than the plaintiff).  The rest of the plaintiff’s duties were assigned to existing and younger salesmen.  (Another younger and better paid salesman was hired the following year and was given some of the plaintiff’s former accounts).  The defendant refused to retain the plaintiff as an independent sales agent paid only through commission because it did not want to pay his travel expenses to the Bahamas when it could have a full-time employee assigned to that territory.  His supervisor tried again to convince the defendant to retain the plaintiff in some capacity, but was unsuccessful.  When the plaintiff learned that his services were no longer desired in any capacity, he refused to resign or retire as they had originally discussed.  The defendant then sent him a notice notifying him of his retirement and, when he objected, eliminated his position.

The Court rejected the argument that the plaintiff had produced direct evidence of age discrimination by the frequent references to his impending and constantly delayed retirement because there was no connection between the discussion of his retirement and his age.  In fact, he admitted that no one ever referenced his age at any time.  Simply being the oldest salesman and his speculation could not constitute evidence of age discrimination.

Direct evidence requires no inference to prove the existence of a fact while circumstantial evidence “is proof that does not on its face establish discriminatory animus, but does allow a factfinder to draw a reasonable inference that discrimination occurred.”  . . .In the context of age discrimination, “‘[o]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age,’ satisfy this criter[ion].”

                . . .

The terms “retire” and “retirement” alone, without any evidence that they are being used as a proxy for age to express discriminatory bias, are not direct evidence of age discrimination.

The Court also rejected the plaintiff’s argument that the defendant’s explanation for terminating him and not retaining him as an independent sales agent was pretextual.  It was plausible for the defendant to believe that assigning the Bahamas territory to the employee already handling Bermuda made more financial sense. The plaintiff could not show that the defendant did not honestly believe its explanation:

We apply a modified version of the “honest belief” rule with regard to pretext.  . . . Under this rule, [the plaintiff] “must put forth evidence which demonstrates that the employer did not ‘honestly believe’ in the proffered nondiscriminatory reason for its adverse employment action.”  . . . To show that the proffered reason for its action is “honestly held,” [the defendant employer] “must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.”   . . .. [The plaintiff], in turn, “must be afforded the opportunity to produce evidence to the contrary, such as an error on the part of the employer that is ‘too obvious to be unintentional.’”   . . . Ultimately, however, pretext “is a commonsense inquiry: did the employer fire the employee for the stated reason or not?”

The plaintiff’s evidence, at best, consisted of references to his impending retirement “in internal e-mails and documents, [the defendant’s] replacement of [him] with younger salesmen at higher salaries, [its] lack of transparency and candor about its plan to retire [him], and the allegedly fraudulent alteration of the March 9, 2009 agreement (evidenced by the two existing versions).”  It was the plaintiff “who wanted to reduce his sales territory and eventually go from being a[n] employee to an independent sales agent responsible for a small number of accounts – [his supervisor] and others at [defendant] used the terms “retire,” “semi-retire,” and “retirement” to refer to this plan."

The Court refused to find pretext by comparing the plaintiff’s $48k annual salary to the $70K and $65K annual salaries of the new salesmen because neither of them assumed all of the plaintiff's prior duties.   Further, the plaintiff overlooked the new employees' prior experience, skill and comparative workloads.

CPC maintains that terminating [plaintiff] and allowing existing employees to absorb his few remaining accounts at no cost was much more cost-effective than paying Treadway $48,000 a year to continue servicing them. These hiring and salary decisions may or may not make good business sense, but [plaintiff] cannot establish pretext simply by questioning CPC’s business judgment. This court is not a “super personnel department” tasked with “second guessing employers’ business decisions.” . . . The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions but only from decisions that are unlawfully motivated.

While the evidence may indicate that the plaintiff was treated unfairly, it does not establish that the employer’s explanation was a pretext (or a disguise) for unlawful discrimination.  Indeed, the plaintiff had seen the plan mentioning his contemplated retirement and never objected to it.

What is ultimately fatal to [the plaintiff's] claim, however, is that [he] himself initiated and impelled the chain of decisions he now claims was motivated by discriminatory animus on the part of CPC decisionmakers. [The plaintiff] proactively reached out to [his supervisor] in 2009 and asked to reduce his sales territory because he was getting older and needed to “slow down.” Together, [the supervisor] and [the plaintiff] negotiated the terms of the March 9, 2009 agreement which, under either version of the document, establish that [his] sales territory would temporarily increase until a new salesman could be hired to cover the Carolinas, and that [he] would then separate from CPC (“go from Company employee”) to become an independent sales agent handling only three accounts in the Bahamas and those existing accounts within a 40-mile radius of his home in Johnson City, Tennessee. CPC executives, including [his supervisor], used the terms “retire” and “retirement” to refer to this plan. 

 When the transition . . . slowed the process of hiring a new salesman, [the plaintiff] called [his supervisor] throughout 2010 and 2011 to ask when someone would be hired, and even referred two potential candidates  . . .in an effort to expedite the hiring process. After CPC hired Boepple and he assumed responsibility for the Carolinas, CPC decided not to retain [the plaintiff] as an independent agent or continue to pay him a full salary to service his few remaining accounts. [The plaintiff] now argues that these decisions were made because of his age, but no reasonable jury could infer such a discriminatory animus from CPC from decisions that were prompted by [the plaintiff] himself. 

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 be changed or 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.

Franklin County Court of Appeals Reinstates Age Discrimination Claim and Rejects Honest Belief Rule When Plaintiff Was Arguably More Qualified Than Successful Candidate

In early June, a unanimous Franklin County Court of Appeals reversed a university’s summary judgment on an age discrimination claim, but affirmed dismissal of the disability discrimination claim. Ceglia v. Youngstown State Univ., 2015-Ohio-2125.   The plaintiff was a part-time social work instructor for many years with the university and applied for a full-time teaching position.  He was much older and had more work and teaching experience than the successful candidate (who had no teaching experience at the time she applied).  When asked if his age had been an issue, he was told by the selection committee chair that they had focused on “mid-level” candidates.   The plaintiff was also able to produce evidence that each of the reasons given by the members of the selection committee as to why he had been rejected had no basis in fact and that they had contradicted each other.  Finally, the Court rejected the trial court’s reliance on the “honest belief rule” based on the plaintiff’s ability to dispute the university’s pretexual explanations and the subjective nature of the committee’s decision.

The most interesting aspect of the decision is the Court’s rejection of the application of the honest belief rule, which is generally an insurmountable obstacle for plaintiffs asserting employment discrimination claims.  “Under the "honest belief" rule, if the employer honestly, but mistakenly, believes in the proffered reason given for the hiring decision at issue, then the employee cannot establish the requisite pretext.”   

As discussed above, appellant did more than simply disagree with the University's proffered reasons for denying him the position. Appellant supported his denials with corroborating evidence upon which it may be reasonably inferred that many of the proffered reasons for denying appellant the position either had no basis in fact or were insufficient to support the decision. Appellant also produced circumstantial evidence of a discriminatory animus based on age. Dr. Morawski's remarks to appellant and the inferences properly drawn therefrom create a genuine factual issue whether the members of the search committee honestly believed the proffered reasons for denying appellant the position and whether appellant's age was the true reason for its decision.

The Court discussed in great detail why the plaintiff was able to sufficiently demonstrate that the university’s explanation for not hiring him were pretextual.    The Court found that the plaintiff showed that the stated reasons had no basis in fact or were insufficient to justify the decision to not interview or hire him.  The university gave five reasons why he was not selected for an interview or hired instead of the young and inexperienced candidate:  

1.      The plaintiff allegedly “crossed boundaries with students by taking them out to a restaurant and socializing with them outside of the classroom setting.” However, the only such events were held after classes were over for the semester and were attended by other department faculty and held at a restaurant on campus.  No one had ever criticized these outings during his fourteen years with the university. Indeed, this issue had apparently not been discussed in the selection committee meetings.

2.      There had been “complaints from some of [his] former students that [he] had permitted students to forgo a mandatory research paper.”  He denied this allegation.  The only research paper he ever required was when he taught a class on behalf of the department chair which required a mandatory research paper and no one else was willing or qualified to teach.  He distributed an example of a research paper to the class and still had two copies of research papers he received from students of that class.  One of the selection committee had been critical that the students were not prepared to conduct research.

3.      Some students had complained that he had given "favorable grades" and “that he dismissed classes early.”   However, when he asked the department chair about whether his grades were too high, he was told his grading was not a problem.   He denied dismissing class early very often and contended that he had kept students over just as often.

4.       He had cancelled classes.  He denied that this happened regularly or often.  None of the selection committee members would admit that they had raised this as an issue, had personal knowledge of it or discussed it.

5.     He was “not the best at paperwork."  However, he had never been reprimanded, disciplined or counselled about paperwork during his fourteen year employment.  Moreover, while there was some dispute about this, there was evidence that administrative duties were less than 10% of the full-time teaching position.

In addition to casting doubt on the university’s explanation for his treatment, the plaintiff also produced evidence that age was the actual reason he was denied an interview and job.  In particular, when asked if age was the reason he was not selected, he was told by the selection committee chair that they were seeking “mid-level” candidates.     While such a comment does not compel a finding of age discrimination (and is, therefore, not direct evidence), it does constitute an inference of discrimination because the speaker inferred age as correlated with experience.

The plaintiff was also able to demonstrate pretext by comparing his relative qualifications to the successful candidate.   

"Relative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified * * * if not better qualified than the successful applicant, and the record contains 'other probative evidence of discrimination.' "

The University gave several reasons why the successful candidate was more qualified than the plaintiff:

1.      She “had more experience with agency settings."  However, the plaintiff produced evidence that he had worked for multiple agencies and hospitals, supervised more than 50 student interns and 200 employees.  As an execute director with a county board, he "provided oversight for more than 30 agencies that provided social services.”

2.      She had a "more well-rounded resume."  However, she had no prior teaching experience at the time she applied for the position, in contrast to the plaintiff’s fourteen years of teaching experience.   Indeed, the plaintiff had more years of teaching at the BSW and MSW level than any of the candidates interviewed for the teaching position.  Moreover, the plaintiff’s LISW-S license meant that he could supervise students and able to perform clinical work without supervision.   One of the committee members admitted that this would contribute to the job, but that the successful candidate lacked this qualification.

3.      She had "more field education experience."

4.      She was "organized and had been a supervisor and had been effective."

5.      She was a "better fit" for the position.

 The Court ultimately concluded that there was sufficient evidence to show that the university’s decision had been based on subjective feelings instead of objective evidence about the relative qualifications of the candidates. “Construing the evidence in appellant's favor, the University's hiring decision appears to be based, in large part, on the individual committee member's subjective belief that Holcomb-Hathy was a superior candidate to appellant rather than on specific objective evidence.”   Again, when this evidence was paired with the ambiguous statements about age being the true reason for the decision, the plaintiff produced enough evidence at the summary judgment stage to avoid judgment and require a trial on the merits.

In contrast, the plaintiff was unable to produce evidence showing an inference of disability discrimination to survive summary judgment on that claim.

 

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 be changed or 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.