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.

Sixth Circuit Affirms Summary Judgment for Employer Which Discovered Attempted Discrimination and Did the Right Thing

Last week, the Sixth Circuit Court of Appeals issued an opinion which demonstrated how an employer can avoid liability for blatantly unlawful discrimination when it discovers the problem soon enough to hit the re-start button.  Reeves v. Tenn. Farmer’s Mutual Ins. Co., No. 13-5824 (6^th Cir. 2-4-14).  The hiring manager told a female subordinate that he would never hire a woman for the claims adjuster position and then promptly hired a golf-pro to fill the open position.  When she complained, the Company quickly investigated, removed the hiring manager from the process, rescinded the job offer, re-started the hiring process and ultimately promoted a different female employee into the position.   The plaintiff filed suit, but the court granted summary judgment to the employer. The Sixth Circuit affirmed not only because the plaintiff could not identify a male who received better treatment, but also because when the employer discovered the hiring manager’s attempted discrimination, “it did exactly what it was supposed to do.”

According to the Court’s opinion, the plaintiff worked as a claims assistant. When a claims adjuster position became available, the employer failed to provide any training or parameters to the hiring manager.  When the plaintiff expressed interest in the position, the hiring manager told her that he would never hire a woman into the position because of “safety concerns.”  When the plaintiff called the female AVP of Claims, she was told there was nothing that could be done if the hiring manager did not want to hire her.  The hiring manager then interviewed 8 male candidates and the plaintiff.  Plaintiff was ranked second and a conditional job offer was made to a male golf pro.  When the plaintiff objected to the VP of Claims, an immediate call was placed to the hiring manager, who confirmed her allegations (because he obviously did not know any better).   The VP immediately put the hiring process on hold and brought in the employer’s legal department.   A more thorough investigation was conducted which confirmed that that hiring manager had made the alleged statement to the plaintiff, that he had disregarded the employer’s established practice of preferring internal candidates and that he had excluded potentially qualified candidates because they lacked college degrees.  Therefore, the employer rescinded the job offer, re-started the hiring process without the hiring manager’s participation, re-invited the plaintiff to apply and expanded the candidate pool to include two additional female applicants.

However, the plaintiff failed to impress the new hiring decisionmakers during her interview because she seemed anxious, rambled and criticized her co-workers.  She was not ranked among the top three candidates.  The golf pro, however, continued to impress and was ultimately ranked third. The top ranking candidate – another male – withdrew his application. The second ranked candidate was another female employee with greater tenure and experience than the plaintiff.  Therefore, she was offered the job.

The district court granted the employer summary judgment because the plaintiff could not identify a male who was treated better than her.  The Sixth Circuit affirmed.  The Court rejected the plaintiff’s argument that she suffered an adverse job action when the conditional job offer was initially made to the golf pro because it was ultimately rescinded.

But our inquiry is practical, not metaphysical. In response to Reeves’s complaint, Farmers immediately rescinded Martin’s offer and started the hiring process over. . . .

In summary, once Farmers found out about Delk’s (attempted as it turns out) discrimination, it did exactly what it was supposed to do. Reeves’s claims fail as a matter of law.

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 Revives 2003 Failure to Hire Claim, but Affirms Dismissal of Similar 2004 Claim and Class Certification Motion

Last week, the Sixth Circuit affirmed the denial of a class certification motion in a sexual discrimination hiring case and the dismissal of one claim of disparate treatment.  Davis v. Cintas Corp., No. 10-1662 (6^th Cir. May 30, 2013).   However, the Court reversed dismissal of one claim of failure to hire on account of sex where the plaintiff was at least as qualified (if not more so) than the three other male candidates who were hired in the same 2003 time period, the defendant company only hired two females in six years, but 78 men in the same time period, and where statistical evidence showed that female applicants constituted 26% of the applicant pool and 35% of the qualified individuals in the surrounding population.

The Court made some interesting observations about Cintas national corporate hiring practices:

Service sales representatives were historically male. From June 1999 to October 2006, more than ninety percent of the managers charged with hiring service sales representatives were male. This overwhelmingly male group overwhelmingly hired males. After Cintas implemented the Meticulous Hiring System in 2003, however, female hiring rose dramatically. Between 1999 and 2002, the percentage of women hired for the service-sales-representative position never rose above seven percent. In 2003, the year corporate-level management instructed other managers to “put the myth that females cannot be SSRs out of [their] mind and hire more women SSRs,” and implemented the Meticulous Hiring System, that number rose to 7.8 percent. In 2004, it rose to 10.9 percent, and in 2005 it rose to 20.8 percent.

According to the Court’s opinion, the class certification motion could not survive the different facts of each potential claim of the class.   The trial court found that there was a conflict between the interests of the named and unnamed class members and the individualized determinations required at the damage phase was inappropriate for class action treatment.  There were many steps in the defendant employer’s hiring practices; some were subjective and some were not.  The female class members dropped out at different stages and for different reasons.   Relying heavily on the Supreme  Court’s decision in Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2562 (2011), the Court affirmed denial of class certification:

“[S]ubjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.” Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 991 (1988); accord Dukes, 131 S. Ct. at 2554. When plaintiffs challenge employment practices in a large, national corporation, however, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Dukes, 131 S. Ct. at 2554. Unless a plaintiff can somehow show that the corporation’s managers all used “a common mode of exercising discretion that pervades the entire company,” Dukes explains, “[a] party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” Id. at 2554–55.

The court in Dukes explained that the plaintiffs’ sociological, statistical, and anecdotal evidence—all of which was similar to the evidence offered here—was not sufficient to show a uniform, companywide practice of exercising discretion in a way that favored men over women. Applying the abuse-of-discretion standard, we affirm the district court’s determination that Davis’s statistical evidence, sociological analysis, and anecdotal accounts did not satisfy Rule 23(a)(2). As to each type of evidence, the district court weighed the parties’ competing arguments and found that Davis’s proffered evidence did not support a finding of companywide gender discrimination. We may not overturn this determination unless the district court “relie[d] on erroneous findings of fact, applie[d] the wrong legal standard, misapplie[d] the correct legal standard when reaching a conclusion, or ma[de] a clear error of judgment.” Pipefitters Local 636 Ins.Fund v. Blue Cross Blue Shield of Mich., 654 F.3d 618, 629 (6th Cir. 2011).

After all but one of the class members dropped out when the interlocutory appeal was denied, the remaining plaintiff claimed that she had been discriminated against on account of her sex when her applications for employment were rejected in 2003 and 2004.  The Court found that her poor score on the driving portion of the hiring process was a legitimate reason to deny her application in 2004 and she failed to show that the explanation was pretextual.  However, the Court found that she identified factual disputes in why she was dropped earlier in the hiring process in 2003.

The defendant employer explained that it dropped her early in the process in 2003 because she had mentioned that she disliked up-selling and wanted to keep her current part-time job.  The plaintiff showed that these reasons could be pretext because the employer ultimately moved further into the hiring process three men who were less qualified than her.    

Location 447 hired three men soon after interviewing Davis. At least on paper, their credentials appear equal to, or slightly less impressive than, Davis’s.  . . . . None of the three men had real-world experience in management; none had extensive experience in sales. Davis, by contrast, had worked as a manager for three different companies. She had significantly more customer-service and sales experience than any of the three male candidates, even if she disliked up-selling products and planned to continue working for LensCrafters part-time. She was, in other words, “as qualified or better qualified than [any of] the successful applicant[s].”

Moreover, Plaintiff’s expert explained:

“Between 1999 and 2004, 78 men were hired into SSR positions [at Location 447], but only 2 women were hired into these positions. All of the hires in the period from 1999–2002 were men. During 2003 and 2004, 32 hires occurred; 30 of these hires were men and 2 were women.” This was so, even though women accounted for between 26% and 27% of service-sales-representative applicants and 30% to 38% of the external labor market during that time period. “No women at all were hired into SSR jobs in Cintas location 447 for the four years prior to 2003.” From July 1, 2003 to December 31, 2004, “there were 27 hires into SSR positions. Only one of these hires (3.7% of the hires) was a woman even though more than 25% of these applicants were women.”

Although the employer’s experts claimed that the assumptions of plaintiff’s expert were flawed concerning the labor market, the Court held that this was a matter for the jury to decide.

In short, the statistical evidence and a comparison of the plaintiff’s application with those of the successful male candidates were sufficient to create a factual dispute for a jury to decide whether the failure to hire the plaintiff in 2003 was on account of her gender.

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 Revives Claim of Sex Discrimination in Hiring When HR Director Could Not Get Her Story Straight.

Today, a divided Sixth Circuit Court of Appeals reversed the entry of summary judgment in favor of an employer on a claim that the company had refused to hire a female applicant on account of her sex. Peck v. Elyria Foundry, No. 08-3301 (6th Cir. 9/9/09). In doing so, the Court found that a jury could determine whether the employer’s HR Director was being truthful when she testified in her deposition that she hired less qualified male applicants because she thought the female applicant only wanted certain jobs and/or because the employer did not have adequate “facilities” for female employees and/or because the plaintiff had a poor attendance record and/or because her attorney sent an inflammatory letter and/or because of a physical impairment. The Court concluded that the inconsistencies in the HR Director’s explanation created sufficient pretext to warrant the case being submitted to a jury to determine who was the most credible.

In the decision, the Court relates that the plaintiff and her boyfriend both applied for jobs at the defendant employer. The plaintiff had relevant experience which she listed on her application, but her boyfriend did not. He indicated that he would take any job, but she listed two possible positions – as a tow motor operator and a grinder -- and a “?.” She also put “?” when asked about her desired salary. Her boyfriend was hired but she was not. Her many phone calls inquiring about the status of her application were never returned. When she questioned the HR Director, she was told that her application was still being considered and she would be called in a few days. She was not.

The plaintiff retained an attorney, who wrote the company and alleged sex discrimination. When the company failed to respond, she filed a Charge of Discrimination with the EEOC and then filed suit for sex discrimination.

The district court concluded that the plaintiff could not prove a prima facie case because she only applied for tow operator and grinder positions and there were no tow operators hired and she was physically precluded from grinding However, the Court of Appeals concluded that there was a factual dispute because her application indicated that she would take any job when she put “?” next to those to job titles. Such an application put the employer on reasonable notice that she would take something other than the two listed jobs, particularly when she put the same mark next to desired salary.

The Court also found she was qualified for the jobs because she had five years of relevant prior experience, unlike fourteen of the men hired since the time of her application. In any event, the HR Director conceded that the plaintiff appeared to be qualified from the face of her job application.

The Court also found possible pretext in the HR Director’s explanation for why the plaintiff was not hired. In the affidavit filed with the motion for summary judgment, the HR Director indicated that the job application was limited to the two listed positions. However, in her deposition she testified that the employer’s “facilities” for women needed improvement and she delayed plaintiff’s application while waiting for these improvements. (Surprisingly, the plaintiff did not argue that this was discriminatory under Title VII even though Title VII prohibits discriminatory facilities.) Still later, the HR Director testified that a current employee and former co-worker of the plaintiff had relayed that the plaintiff was an unreliable employee because of unreliable transportation and childcare. Finally, her application was set aside after receiving letter from the plaintiff’s attorney which was full of “insults and lies.” (Again, it was surprising that the plaintiff did not bring a retaliation claim for a refusal to hire her after the employer had been accused of sex discrimination.).

Employers may have more than one reason for passing on a job candidate. And considered individually, any of [the employer’s] reasons for not hiring [the plaintiff] could explain its hiring decision. The problem here, however, is that some of its reasons are inconsistent at best, if not outright contradictory, and are thus “so intertwined” that the credibility of any of them is in doubt. . . . Moreover, “an employer’s changing rationale for making an adverse employment decision can be evidence of pretext." Here, it would be a logical feat for a jury to believe both [the HR Director’s] testimony that she did not hire [the plaintiff] because she thought [the plaintiff] did not apply for more than two positions and that she did consider her more broadly, yet passed because she received damning input from a former coworker, and because the women’s bathrooms were not up to par. A contradiction by the same employee in the same deposition raises serious credibility concerns; either [the HR Director] considered [the plaintiff] for more than two positions or she did not.

The Court majority also found it problematic that the HR Director claimed to keep the plaintiff’s application open – despite receiving negative reports from a former co-worker – until the inflammatory letter received by the plaintiff’s attorney. During the time period between when plaintiff applied and her attorney wrote the company, the employer hired 22 men – many of whom had no relevant prior experience for their new job.

In contrast, the dissent argued that the HR Director’s testimony was not inconsistent. Although the HR Director “honestly believed” that the plaintiff only applied for two positions, she held her application open in case one of those positions ultimately became available. Nonetheless, the majority found this to be irrelevant because the plaintiff presented evidence that the employer sometimes hired men for positions different from the jobs listed on their applications. In other words, the employer was limiting the female applicant to the jobs listed on her application, but was not similarly limiting male applicants.

Our conclusion that these inconsistencies suggest pretext does not mean that a company is precluded from pursuing alternative lines of defense to convince a jury that its decision was not motivated by sex discrimination. But at the summary judgment stage, a plaintiff may meet her burden of demonstrating pretext by showing, in addition to proffered evidence, that an employer’s reasons are so incoherent, weak, inconsistent, or contradictory that a rational jury could conclude the reasons were not believable.

Finally, the Court found no evidence that any of the men hired instead of the plaintiff were more qualified than her or that her medical condition would have disqualified her from non-grinder positions.

Therefore, the case was remanded for the district court to hold a trial on the plaintiff’s sex discrimination claim. (The plaintiff’s request to amend her complaint to add a public policy claim based on the retaliation she suffered from her attorney writing a letter was denied on the grounds that Ohio only recognizes public policy torts in wrongful discharges, not in failure to hire disputes).

Insomniacs can read the full decision at http://www.ca6.uscourts.gov/opinions.pdf/09a0634n-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.