Labor & Employment Law Daily More qualified female officer denied promotion because she interviewed poorly, not because of her gender
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Wednesday, July 15, 2020

More qualified female officer denied promotion because she interviewed poorly, not because of her gender

By Marjorie Johnson, J.D.

Even if she was the most objectively qualified, the county was still entitled to consider candidates’ interview performances, and the panelists unanimously agreed she interviewed poorly compared to others.

A female officer who was denied a promotion based on her poor performance during the panel interview phase of the selection process failed to convince the Eighth Circuit to reinstate her sex discrimination lawsuit. Though she received the highest score during the initial screening for minimal qualifications, thus presenting evidence that she was objectively more qualified than the selected male candidate, a three-member interview panel all noted concerns with how she performed during the interview process and there was no evidence indicating that any of the panelists harbored discriminatory animus. Thus, dismissal on summary judgment was affirmed (Pribyl v. County of Wright, July 13, 2020, Kelly, J.).

In 2014, the female officer applied to be a sergeant in the court services division of the county sheriff’s department. At the time, she held both bachelor’s and master’s degrees and had over 20 years of law enforcement experience, including several years in the court security division. In contrast, the male officer eventually selected for the promotion held only an associate degree and had less law enforcement experience.

Screening process. The first part of the county’s selection process required all applicants to apply through NeoGov, a software program it used to determine whether they met minimum qualifications for the sergeant position. These included an associate degree in criminal justice or law enforcement, a peace officer license, a firearms certification, and the ability to pass medical, physical, and background investigation.

Officer receives highest score. NeoGov assigned a score to each applicant which the county claimed it used only as a pass/fail screening tool. The female officer received the highest score (86.96 percent) while the selected male candidate received the lowest (52.17 percent). They both moved on to the second part of the process, the panel interview.

Poor interview performance. The interview panel consisted of a HR representative, the chief deputy, and the captain. They evaluated each candidate’s communication skills, thought processes, articulation, and overall presentation by asking the same set of initial questions to each candidate. It was undisputed that no gender-specific questions were asked.

All three panelists noted concerns about how the female officer performed. For instance, when questioned about how she would help carry out and improve the mission of the sheriff’s office, she merely recited the department’s mission statement. And when asked about barriers that prevented her from effectively performing her job, she responded that it was difficult using the restroom because she needed to take off her duty belt, which the men did not always have to do. The captain thought her answer suggested a lack of seriousness, the HR rep characterized it as “odd,” and the chief deputy believed it was unresponsive. The panelists also noted that her answers were generally “very short and to the point.”

Sheriff’s decision. The panel created a list of the top five finalists for the sheriff to review, which did not include the female officer. The sheriff then narrowed the list down to three finalists, discussed them with his command staff, and ultimately selected the male officer. The female officer then brought this lawsuit asserting sex discrimination under Title VII and the Minnesota Human Rights Act, which the district court dismissed on summary judgment.

Objective qualifications didn’t show pretext. Affirming, the Eighth Circuit rejected the female officer’s contention that a triable issue existed as to whether the county’s proffered reason for denying her the promotion—that she didn’t interview well—was pretext for gender bias. First, she argued that the county ignored the fact that she was objectively more qualified than the selected male candidate and relied solely on the subjective panel interview to make its decision. This was not the case, however, as the county undisputedly considered her objective qualifications since it only granted interviews to those who met the objective minimum requirements set forth in its NeoGov application.

Crucially, she did not argue that the screening process was not objective. Instead, she asserted that a factual dispute existed concerning the extent to which the county considered the NeoGov scores in considering the qualifications of the candidates. But this factual dispute was not material. Assuming that the scores mattered for purposes other than determining whether a candidate met the minimum requirements—which was not supported by the record—and she was the most objectively qualified, the county was still entitled to compare candidates’ interview performances and “to identify those strengths that constitute the best qualified applicant.” Here, the panelists unanimously agreed she interviewed poorly compared to other candidates, despite her objective qualifications.

No gender animus. The appeals court also rejected her contention that the panelists’ interview notes showed that the chief deputy lied about why he did not select her as a top candidate, ignored her interview answers, and held her to a higher standard. Even if the interview notes showed what she alleged, she presented no evidence that the chief deputy was motivated by gender animus. She also did not contend that the interview notes showed that the other panelists’ negative impressions of her were pretextual or that the chief deputy was somehow responsible for their negative impressions.

Cat’s paw theory. Finally, the officer failed to show that the county could be liable under a cat’s paw theory. Specifically, she argued that the panelists’ gender animus tainted their recommendations to the sheriff. Significantly, however, there was no evidence showing the panel harbored gender animus. Indeed, they did not ask any gender-specific questions and it was the officer who introduced a gender-based issue through her comment regarding the duty belt.

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