Employment Law Daily Changing job criteria in middle of hiring process supports pretext inference in nonselection claim
Thursday, September 21, 2017

Changing job criteria in middle of hiring process supports pretext inference in nonselection claim

By Kathleen Kapusta, J.D.

Evidence that an employer changed the criteria for a position midway through the hiring process, relied on subjective justifications for selecting white candidates over an African-American applicant, and provided a shifting explanation for the selection decision supported an inference of pretext sufficient to deny summary judgment against the applicant’s Title VII race discrimination claim, a federal court in the District of Columbia ruled. His retaliation claim, which was based on an anonymous complaint he made four years earlier about what he viewed as a racist video, failed however (Casselle v. Chao, September 15, 2017, Boasberg, J.).

Hired by the FAA in 1988, the employee rose steadily through the ranks for almost two decades, becoming a traffic management officer in 2010. That same year, he sent an anonymous email to an FAA vice president from his personal email address complaining about a video shown at a meeting that featured a former black football player as an overzealous office worker who used “threats, violence, and verbal abuse,” kicked an employee lying on the ground, and in one scene, “thrust[s] his pelvis and gesture[s] his hands toward his crotch . . . standing over the employee.”

Shame on us. The employee stated that the video was racist and unprofessional and was “a clear reminder of the stereotypical big African American Athlete who cannot speak but is used only for his brute force and intimidation.” He also expressed concern that upper management lacked racial diversity, stating “[S]hame on us if we allow the good old-boy network to remain alive [and] well.”

In 2014, he applied for a job as a national operations manager (NOM). Out of 46 applications, he was one of only two black candidates and the only black applicant interviewed by the panel for the two open positions. The positions were offered to two white males who had the highest and third highest scores on the quantitative assessments. The employee had received the second highest cumulative score. When they declined the offers, the jobs were given to two other white males who had scored significantly lower than the employee on the assessments but who had experience in the FAA’s command center.

Previous experience. In his lawsuit, the employee alleged he was intentionally passed over for the NOM position in favor of less-qualified white candidates. While the decisionmaker claimed he began looking for candidates with command center experience after the first two selectees turned the positions down but before they were offered to the next two successful applicants, the employee argued that command center experience was not a requirement for the NOM position and the decisiomaker deviated from FAA internal policies when he changed the relevant qualifications during the hiring process.

The employer attempted to distinguish between altering the emphasis put on certain hiring criteria and an actual change in the baseline qualifications, arguing that it was not the requirements for the NOM position that shifted but the needs of the command center. However, observed the court, there was evidence showing that command center experience was never listed as a factor in the NOM job posting and that it had not previously been considered necessary for the job. Noting that the first two candidates selected had no prior command center experience, the court found a factfinder could conclude that the employer introduced an entirely new qualification into the mix—a qualification that prevented the employee from being hired. Thus, this evidence supported an inference of pretext.

Better qualified. The employee next argued that because he had obtained a cumulative score of 40 on the quantitative assessments as compared to 28 and 14 for the candidates ultimately selected, he was more qualified. Rejecting the employer’s contention that the metrics did not accurately reflect the qualifications of each candidate, the court explained that on the basis of this record, it would be possible for a jury to infer that the disparity in the quantitative scores was indicative of discrimination. This was particularly plausible given the evidence casting doubt upon the legitimacy of the weight given to command center experience during the hiring process.

And while the decisionmaker relied in part on his subjective assessment of the successful candidates—he had previously worked with one and thought the other was “a good guy” whom the “team seemed to like”—a jury could reasonably infer that his subjective justifications were camouflage for racial bias.

Shifting explanation. Finally, the employee argued that the FAA’s failure to provide a consistent explanation for his nonselection was evidence of pretext. He asserted that when the decisionmaker informed him of his nonselection, he never mentioned the need for command center expertise, telling him instead that his supervisor recommendation was “good but not excellent,” and the other two candidates received excellent recommendations. Here, the court found that a reasonable jury could infer the decisionmaker’s arguable failure to mention command center experience was indicative of pretext. Thus this claim could proceed to trial.

Retaliation. As to the employee’s retaliation claim, he could not show the requisite nexus between his 2010 complaint and his failure to obtain the NOM position four years later. There was simply no evidence that anyone at the FAA even knew he was the author of the complaint, said the court, noting that it was sent from his personal email, which included no aspect of his name or initials, and was signed “Concerned FAA Manager.”

Although he argued a jury could reasonably infer he was identified as the author because a 2016 online search of the email address associated the account with his full name, there was no evidence that anyone at the FAA ever searched for the identity of the author of the email and the VP to whom it was sent testified that she had never determined who sent the complaint. Finally, the court rejected his assertion that the FAA could have determined he was the author because he was only one of two black individuals in the audience when the video was shown. Pointing out that nowhere in his email did he mention his race or make clear he was objecting based on his own racial identity, the court found the contention that the FAA could have deduced he sent the complaint simply because he was one of 200 people at the annual meeting was mere surmise.

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