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 (6th 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.
