Labor & Employment Law Daily Despite years of experience, 71-year-old applicant failed to show he was qualified for pipefitter job
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Tuesday, November 17, 2020

Despite years of experience, 71-year-old applicant failed to show he was qualified for pipefitter job

By Kathleen Kapusta, J.D.

Not only did he admit he couldn’t read blueprints or select pipes, which the job application listed as required skills, he acknowledged that he “didn’t want to be a welder anyway.”

A 71-year-old applicant for a journeyman pipefitter position, who was rejected for the job despite his 30 years of pipefitter and welding experience, failed to show he was qualified for the position, the Sixth Circuit ruled, affirming summary judgment against his ADEA claim. Not only did he admit he lacked specific skills required by the prospective employer, he failed to show the negative references it received about him—including “no, no, no,” and “stay away”—were coded references to his age. Further, said the court, extending the cat’s paw theory as he urged to include the bias of an outsider was “simply ‘beyond the pale’” (Flowers v. WestRock Services, Inc., November 12, 2020, Readler, C.).

After working as a pipefitter and welder for Graphic Packaging for 30 years, the applicant retired in 2013. Several years later, he learned that WestRock Services was looking for a journeyman pipefitter. In addition to welding skills, the online application listed as a requirement selecting the type and size of pipe and related materials according to job specifications and being able to read blueprints.

No, no, no. He applied for the job and the HR rep who initially reviewed his application thought he looked “generally qualified.” She forwarded his application to a team lead and a supervisor. The team lead, who had worked with the applicant at Graphic, felt he had a poor work ethic and responded “no, no, no.” Although the supervisor did not know the applicant, he asked a friend who had also worked with him at Graphic and was told “stay away” from hiring him. Based on these negative references, the HR rep declined his application through an online portal which sent an automated response stating that the company “decided to move forward with other applicants who more closely match the desired requirements for the role.”

Lower court proceedings. The applicant then sued Westrock for age discrimination in violation of the ADEA. During discovery, he admitted he did not know how to read blueprints, did not have experience with selecting the type and size of pipe, and “didn’t want to be a welder anyway.” Granting summary judgment against his claim, the district court found he was not “otherwise qualified” for the position. Further, said the lower court, “[W]hen we’re in a failure-to-hire context and you have absolutely no experience with somebody and the former employer who you happen to know is willing to go out on a limb and say ‘No, no, no’ or ‘stay away,’ that’s [a] pretty common-sense practical reason[]” for not granting an applicant an interview.

Otherwise qualified. On appeal, the Sixth Circuit first found the applicant’s failure to show he was “otherwise qualified” for the job doomed his claim. He admitted he did not know how to select pipes or read blueprints and that he was not interested in welding. Rejecting his contention that these skills were not necessary for the position, the court explained that “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.” Pointing further to an employer’s superior knowledge of its workplace and industry, the court noted that “its stated job requirements will typically be the objective criteria by which we measure a failure-to-hire claim.”

Although in some situations, an employer’s stated nondiscriminatory considerations might mask discriminatory motives, the court again pointed out that here, the employee admitted he lacked specific required skills. Thus, said the court, there was no indication that impermissible age considerations played any role in his rejection.

No evidence of pretext. And even if he had been able to establish a prima facie case of age discrimination, there was no evidence the employer’s stated reason for not hiring him—his would-be supervisors thought poorly of his work ethic, either from their personal experience or industry references—was pretextual. There was simply no evidence age was a factor at any point in the hiring process, said the court, noting that he did not include his age or a photo in his job application. While his application did reflect 37 years of experience, the applicant “could have been as young as 55 if he began employment out of high school,” said the court, and that was close to the age of the only comparator he offered.

Sequential process. And while he pointed to the HR rep’s statement that he looked “generally qualified” based on an initial review of his application, arguing that the subsequent negative reviews from others were a shifting justification for the decision not to hire him, these events, said the court, “seemingly reflect nothing more than WestRock’s sequential process for considering applicants.”

Also rejected as pure speculation was his contention that WestRock’s response stating it had decided “to move forward with other applicants who more closely match the desired requirements and qualifications for the role” was evidence of discriminatory motive. The generic statement was generated by an automated email, said the court, noting that accepting his contention “seemingly would impute a legal duty on employers to reject applicants in blunt, precise terms.”

Economic rationality. Nor could he show pretext in the fact that WestRock paid two contractor pipefitters substantially more than he would have been paid as an employee. “Whether WestRock relied on temporary contractors, however, has little bearing on whether the company was motivated by the negative references.”

Cat’s paw. Finally, the court rejected the plaintiff’s attempt to extend the cat’s paw theory of discrimination to job applicants. “Doing so would place a tremendous burden on human resources employees in culling through applications,” said the court, as “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.”

Beyond the pale. Further, the court observed, while a current employee’s relevant job history is likely internal to the company, an applicant’s relevant job history would be with another employer, making it more difficult to investigate. “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.’”

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