By Marjorie Johnson, J.D.
The employee claimed that a superior who had made disparaging comments about her military status and need for time off for reservist training influenced the recruiter’s decision to reject her for an interview for a promotion.
Triable issues existed as to whether an art museum director harbored anti-military animus against an employee who had applied for a promotion, and if so, whether that animus influenced the HR recruiter’s decision to deny her an interview, the Tenth Circuit ruled in reversing dismissal of her USERRA claim on summary judgment. Though the recruiter claimed that she rejected the employee due to her lack of supervisory experience, there were ambiguities about her qualifications which could have been fleshed out during the interview process and evidence of the museum director’s anti-military comments and desire to block the employee from any promotions while she remained in the navy reserves suggested that, under the cat’s paw theory, the recruiter chose to disallow an interview because of the director’s anti-military animus (Greer v. City of Wichita, December 3, 2019, Bacharach, R.).
Denial of interview. The employee worked for five years as a security guard at the Wichita Art Museum while simultaneously serving in the navy reserves. When she applied for a vacant “operations supervisor” position, the city HR recruiter declined to advance her to the interview stage, attributing the decision to a lack of supervisory experience. Though the employee had indicated on her application that she had supervised two individuals, she identified her job title only as “security” and didn’t list any supervisory duties.
Anti-military comments. The employee claimed the recruiter was instead following instructions from the museum’s director, who harbored anti-military animus and blocked her from any promotions. She testified that the director made frequent comments disparaging her military service, such as stating, “don’t they know you have a real job?” when informed of her need to attend her annual two-week reserve training. When a coworker slammed a door into her shoulder, the director remarked that, “being military, I figured you would be able to handle it.”
The director also allegedly declared that the employee would never be promoted as long as she remained in the military, telling her when she inquired about a “weekend supervisor” position that, “[Y]ou’re still in the military, military thing, the crap, whatever [Y]ou’re not going to be considered or promoted or you’re not going to do anything here.”
Cat’s paw. The Tenth Circuit ruled that the district court erroneously held that a jury could not reasonably find that her military status was a motivating factor in the interview denial. Rather, she sufficiently established a prima facie case under the cat’s paw doctrine since triable issues existed as to whether the director harbored anti-military animus and whether that animus was a motivating factor in the recruiter’s decision to deny her an interview.
Anti-military animus. First, a reasonable jury could indeed determine that the director harbored an anti-military animus through her purported negative statements about the employee’s military status. The court squarely rejected the employer’s contention that these statements were isolated and referred only to the employee’s unavailability for work during her reserve unit’s drill weekends. Rather, the comments “bore directly on the disputed employment decision” since they referred specifically to the employee and her inability to get a promotion.
Indeed, as the Federal Circuit has stated, the “most significant—and predictable—consequence of reserve service is that the employee is absent to perform that service” and allowing an employer to fire an employee because of his military absence would “eviscerate” USERRA’s protections.
Motivating factor. Triable issues also existed as to whether the director’s anti-military animus influenced the recruiter’s decision to deny the employee an interview. According to the employee, the recruiter pinned the blame on pressure from the museum director, telling her that she made all of HR “scared” and that because she “wants you right where you are you’re not going to go anywhere.” And while the employer argued that the director didn’t review the employee’s application until after the recruiter made her decision, it could reasonably be inferred that the director had “squashed” any future promotions for the employee.
Supervisory experience. The district court also erred in concluding that the recruiter decided that the employee was ineligible for an interview due to her lack of qualifications and not based on the museum director’s anti-military animus. Though the new position required “at least one year’s supervisory experience in a museum, security environment, or law-enforcement field,” it was disputed whether the employee was denied an interview based on her purported failure to meet this requirement. The employee claimed she was qualified since she served as the museum’s security supervisor in charge of the second shift, while the employer claimed she was only a “shift lead.”
Since the employee’s supervisory experience was not clear from her application, at issue was how the city treated applications bearing such ambiguities. In this regard, a triable issue existed as to the scope of the recruiter’s discretion to advance the employee’s application to the interview stage given that her application stated that she supervised “2″ individuals. Evidence that ambiguities about an applicant’s qualifications could be fleshed out during the interview process suggested that the recruiter chose to disallow an interview because of the director’s anti-military animus rather than the employee’s lack of supervisory experience.
Same-action defense. The appeals court also rejected the district court’s conclusion that the employer undisputedly wouldn’t have advanced the employee’s application to an interview even if she were not in the reserves. A jury could reasonably attribute the recruiter’s decision to anti-military animus rather than “an ironclad city practice.”
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