Labor & Employment Law Daily Fill-in supervisor couldn’t prove denial of promotion to permanent position was race discrimination
Thursday, October 15, 2020

Fill-in supervisor couldn’t prove denial of promotion to permanent position was race discrimination

By Wayne D. Garris Jr., J.D.

Both the district court and circuit court acknowledged that the eventual selectee may have been hired due to cronyism, but the employee couldn’t prove that his nonselection was discriminatory.

Affirming a district court’s grant of summary judgment in favor of the Massachusetts Bay Transportation Authority, the First Circuit held that an African-American employee could not prove his nonselection for promotion to supervisor was due to race discrimination. The employer put forth evidence the employee had the second-lowest score out of 19 interviewees while the selectees had the two highest. The court was not persuaded that the employer used different interview and scoring criteria for the selectees and the employee, thus there was no evidence the employer’s proffered reason was pretextual. Judge Barron concurred in part and dissented in part in the decision (Henderson v. Massachusetts Bay Transportation Authority, entered September 30, 2020, published October 9, 2020, Lynch, S.).

The employee worked as a laborer foreperson for the Massachusetts Bay Transportation Authority (MBTA). Throughout his employment, he also served as a temporary-change supervisor (TC supervisor) when the permanent supervisor was absent from work or when the supervisor position was vacant. As a TC supervisor, the employee supervised 30 employees.

Supervisor application. In September 2012, MBTA posted for two permanent supervisor positions. The job application identified several minimum entrance requirements (MERS): high school diploma or GED; at minimum five years’ work history in building and equipment maintenance supervisory experience; the ability to use Word, Excel, Database, People Soft, or Mainframe applications; effective organizational skills; and passing a criminal offender record information check, background check, and medical screening. Pursuant to the MBTA’s longstanding practice, the MERS fell into two categories: those required for an applicant to receive an interview and those that are not required for an interview but are required for the job. The MERS regarding computer skills were in the latter category.

Interview process. The employee was one of 119 people who applied for the position. The hiring committee interviewed 20 applicants, including the employee. During the interviews, the committee members asked a uniform set of questions and assigned a score to an applicant’s response to each question. Under the MBTA’s policy, it hired the candidates with the highest scores. The employee received a cumulative score of 117, which was the second lowest score of all interviewees. The MBTA hired the two highest scoring applicants, both of whom were white.

Mistreatment. In October 2012, MBTA did not assign the employee to podium duty, which involved setting up podiums and speakers for government employees giving speeches. Employees who work podium duty often receive overtime pay. In January 2013, the employee alleged that his supervisor yelled at him for using an employer-owned computer to complete paperwork even though other employees had used the office and computer. The employee complained about the incident to a deputy director.

Lawsuit. The employee subsequently filed suit alleging race discrimination and retaliation in violation of Title VII, and negligent infliction of emotional distress. The district court granted summary judgment to the MBTA, finding that although the record showed the employee may have had better computer skills than the selectee and that there was some subjectivity in the interview process, MBTA’s use of the highest interview scores was not pretextual. The district court also dismissed the retaliation claim because the employee was removed from podium duty five months before he complained about the computer incident.

Failure to promote. On appeal, the court noted that MBTA’s legitimate, nondiscriminatory reason for not hiring the employee was that he performed poorly in his interview. Specifically, he scored 19th out of the 20 applicants interviewed. The court was not persuaded that this reason was a pretext for discrimination.

Computer skills. First, the employee argued that MBTA applied discriminatory standards with respect to the computer skills MER. One of the selectees did not satisfy the computer skills requirement in his application, so he should not have been invited for an interview, the employee argued. Further, he contended, the selectee did not show he possessed the requisite computer skills in his interview.

The court disagreed. The record showed that MBTA did not require all MERs to be satisfied in order to receive an interview. Further, the hiring committee did not screen any of the applicants for the computer skills MER, so there was no evidence the employee was subjected to a different standard.

The interview. The court also found no inconsistency in the interview process. All applicants were asked the same questions and their responses were scored on a uniform scale.

Scoring inconsistencies. Next, the employee argued that the selectee was rated three points higher than him on the computer skills question in his interview, despite the employee having more computer experience. The court, however, held that the employee waived this argument because he did not raise it before the district court, and it lacked merit.

The interviewers’ notes showed that the selectee described his computer experience as minimal—he used a computer every day at home. The employee spoke about his word processing skills, but did not mention experience with any other applications. Thus, while the selectee did not have much computer experience, there was no evidence that the employee’s computer experience was superior to the selectee’s experience. Further, the selectee’s response to a question about updating MBTA’s computer systems was more detailed than the employee’s answer, which was why the employee received a lower score.

Cronyism. The employee also alleged that the selectee was chosen as a result of cronyism because the selectee listed the HR director and the director’s brother as references. Again, the court held that the employee waived this arguments as it was raised for the first time at oral argument. Additionally, the members of the hiring committee testified that they did not speak to the HR director about the hiring process, which was undisputed.

No causation. Lastly, the court explained, the employee’s claim failed because there was no evidence that, absent alleged discrimination, he would have been selected for the job. He received the second lowest interview score. And even if the employee had received the highest score possible on the computer skills questions and the selectees had received zeros, he still would have only had the 16th highest score. There was no evidence that everyone that scored higher than the employee was a result of racial discrimination.

Retaliation. The court affirmed summary judgment for MBTA against the employee’s retaliation claim as well. First, the denial of podium duty was not an adverse action since it did not materially change the employee’s employment conditions. Although the employee was not able to receive overtime pay for podium duty, the record showed that he was offered and accepted many other opportunities for overtime work. Further, there was no causal connection between his protected activity and the denial of overtime duty because he complained to the deputy director about his supervisor’s conduct four months after he was no longer given podium duty.

Feliciano de la Cruz and Reeves. Judge Barron, concurring in part and dissenting in part, took issue with the majority’s conclusion that the employee’s weak pretext showing required dismissal of his claim. Judge Barron attributed the holding to the majority’s reliance on the court’s prior decision in Feliciano de la Cruz v. El Conquistador Resort and Country Club. In Feliciano de la Cruz, the court found that the plaintiff made a “thin” showing of pretext but granted summary judgment for the employer because, despite the evidence of pretext, the plaintiff could not prove that her national origin was the reason for her termination.

However, in Reeves v. Sanderson Plumbing Prods. Inc., the Supreme Court disagreed with the implication in Feliciano de la Cruz that an employee’s establishment of a prima facie case and pretext is not enough for a jury to infer discrimination. The court later denied a post-Reeves petition for rehearing noting the “particular weakness” in the plaintiff’s case. Thus, the dissent interpreted Feliciano de la Cruz as a fact-dependent ruling.

Judge Barron argued there were “inexplicable discrepancies” in the scoring of the employee’s and selectee’s answers regarding computer skills, and both the district court and majority noted there was some evidence that cronyism may have influenced the hiring decision. Thus, the employee’s case here did not have the same weaknesses as the plaintiff’s case in Feliciano de la Cruz, and the majority should have allowed a jury to consider whether discrimination was the reason for the non-promotion. The majority, however, argued that it did not rely on Feliciano de la Cruz because the employee failed to present any evidence of pretext.

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