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 (6th 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.
