Sixth Circuit Rejects Cat's Paw Theory for Discriminatory Job References in Hiring Cases

 Last month, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an age discrimination claim based on its failure to interview or hire an applicant with 30 years of experience, but who had poor job references.  Flowers v. WestRock Services, Inc., No. 20-1230 (6^th Cir. 2020).  The plaintiff admittedly could not satisfy certain qualifications for the job established in the job description and was not entitled to override the employer’s ability to establish its own job criteria.  The plaintiff also could not show pretext based on a generic, automated message about preferring more candidates who more closely matched the job requirements.  Interestingly, the Court held that the cat’s paw theory of discrimination did not apply to hiring decisions because the employer could not independently investigate the basis of a negative job reference from a prior employer. “If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms.”

According to the Court’s opinion, the plaintiff had 30 years of pipefitting experience prior to his 2013 retirement.  He had been told about an open pipefitting position with the defendant employer, which required the ability to read blueprints, to select the type and size of appropriate pipe, and to weld, etc.  He applied online and did not reveal his age.  However, he was not interviewed when a former supervisor now working for the defendant employer reported on his poor work ethic and this was confirmed by another former supervisor contacted by the employer.  He was informed through an automated message that the employer had decided to pursue other candidates whose skills more closely matched the desired requirements and qualifications.   The employer apparently hired two temporary contractors at a higher billing rate.  After the plaintiff heard that a younger candidate with less pipefitting experience, but extensive welding experience, had been hired, this lawsuit followed.  

During his deposition, the plaintiff admitted that he was unable to read blueprints and lacked experience selecting the type and size of pipe appropriate for a job.  He also was not certified in welding because he did not like welding.  The successful candidate was an extremely experienced welder, but there is no discussion of whether he met the other qualifications.  Accordingly, the trial court granted the employer’s summary judgment motion because the plaintiff could not show that he was qualified for the position due to his failure to satisfy the basic requirements for the position.   The trial court also found it was common sense that the employer would prefer to interview a candidate about whom it knew nothing over a candidate with poor job references.

Flowers’s failure to show he was “otherwise qualified” for the job of Journeyman Pipefitter dooms his claim. From the summary judgment record, Flowers has not demonstrated that his “qualifications are at least equivalent to the minimum objective criteria required for employment in the relevant field,” as set out in the job description. . . . Noting Flowers’s admission that he does not know how to select the size and type of pipes or read blueprints, two of the listed job requirements, and aware of Flowers’s disinterest in welding, another job duty, the district court held that Flowers failed to show he was otherwise qualified for the position. We see no error in that conclusion. Requiring a plaintiff to establish a prima facie case under the ADEA framework serves to eliminate the most common nondiscriminatory reasons for an employer’s action. . . .  One such reason is an applicant’s lack of qualifications. WestRock desired a pipefitter who could read blueprints and select pipes, and who also had an interest in welding. Flowers missed the mark in each respect, the first two by his own admission, and the third due to his lack of interest in welding as much as “seven days a week, twelve hours a day.”

Rather than challenging those conclusions, Flowers instead challenges the premise that these skills are necessary for the position. To his mind, pipefitters do not need to read blueprints, nor should they be required to make pipe selections. But as the one who creates the position in question, the employer largely enjoys the right to decide the qualifications it prefers in one who holds the position and, it follows, whether an applicant lacks the necessary knowledge or experience.. . . And given an employer’s superior knowledge of its workplace and industry, the employer’s stated job requirements will typically be the objective criteria by which we measure a fail-to-hire claim. . . . Who, after all, better understands the relevant field and the corresponding skills necessary to succeed than the employer? Not a federal court, one reason why we do not “substitute [our] judgment for that of management” when it comes to business decisions like setting necessary job qualifications.

The Court also agreed that the plaintiff could not show that the employer’s explanation was pretextual based on the poor job references he received.   The plaintiff did not and could not dispute that he had received poor job references.   He also failed to show that his age was a factor.  His age was never indicated on his job application, in any of the negative job references, and, even considering his 37 years of work experience, he could have been as young as 55 (instead of his actual age of 71).

The plaintiff could not show pretext on the basis that he passed the initial review of his application as “generally qualified” because it was undisputed that he received negative evaluations of his work ethic at the next stage.   The Court also refused to find pretext from the employer’s automated message that the employer was pursuing more qualified candidates instead of bluntly telling him that he had poor references.    (This part of the decision is confusing because it indicates that the employer did not in fact consider other, more qualified candidates, despite the factual summary indicating that a candidate with welding experience was hired).  

Accepting Flowers’s contention, moreover, seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms. Some employers may have no objection to telling someone like Flowers that he was not hired because two people, including a prior coworker, thought he had a bad work ethic. Yet many others surely would prefer to respect social etiquette, avoiding hard truths when possible. Either way, certainly the ADEA does not require the former, nor does it suggest that the latter is evidence of age discrimination.

The Court also found that the plaintiff failed to show that the negative references were insufficient to justify the hiring decision because the plaintiff did not show that any other candidates were considered with similarly poor references.

Flowers says there are three such WestRock employees. Yet of the three, WestRock provided evidence that one was hired before Flowers applied, and another was already employed by the company before being moved into a pipefitting apprenticeship. And as to the third, Flowers provides no evidence that the employee received negative references or lacked required skills as did Flowers.

As a final salvo, Flowers invokes an economic rationality argument to justify his age claim. Noting that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee, Flowers paints this purported “irrational economic decision” as evidence of age discrimination. True, in some circumstances we may consider the reasonableness of an employer’s decision to the extent it explains whether an employer’s proffered reason for an employment action was its actual motivation. Wexler, 317 F.3d at 576. Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.

Finally, the Court rejected the plaintiff’s attempt to prove discrimination through a cat’s paw theory.  Indeed, the Court found that the cat’s paw theory should not apply in hiring decisions because HR could never independently investigate whether a prior employer held a discriminatory animus.  In any event, the Court found that the plaintiff failed to show that the individuals – inside and outside the employer – held an age bias against him when they recommended against hiring him.

Cat’s Paw.  Failing on these fronts, Flowers embraces a novel understanding of what has come to be known as the “cat’s paw” theory of discrimination. The customary application of that theory involves a supervisor who “performs an act motivated by [prohibited] animus that is intended by the supervisor to cause [the formal decisionmaker to take] an adverse employment action.” Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011). Where a supervisor engages in that type of conduct, and where the supervisor’s “act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. This theory of liability serves to prevent the ultimate decisionmaker—for example, a middle manager—from being a shield for a supervisor’s discriminatory intent.

While this theory has been applied to purported discrimination against a company’s current employees, it is quite another thing to extend it to mere job applicants as well. Doing so would place a tremendous burden on human resources employees in culling through applications. After all, a disgruntled applicant could always allege that those employees did not do enough diligence in considering an applicant’s references, both positive and negative, and that one reference or another had some impermissible bias. If every reference comes with a federal duty to investigate, hiring will become exceedingly tedious, especially with the volume of applications submitted through today’s digital platforms. That is unlike the narrower focus of a cat’s paw claim asserted by a current employee or group of employees.

To the same end, whereas the relevant job history for a current employee is likely internal to the company, in the hiring context the relevant history will often lie with another employer. That makes those matters difficult to investigate. Nor, it bears emphasizing, should an employer be liable for the bias of an outsider. Take this case, for example, where one of the negative reviews of Flowers came not from a WestRock supervisor but rather from an employee of another company. While the cat’s paw theory might apply to root out supervisory employees who attempt to shield their discriminatory motives through an internal third-party, it makes little sense to apply that same theory to an allegedly impermissible motive that stems from one who does not even work for the company in question. In the district court’s words, extending the cat’s paw theory as Flowers urges is simply “beyond the pale.”

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.