Employment Law Daily ‘Similarly qualified’ African-American employee lacked customer service experience, couldn’t revive failure-to-promote claim
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Tuesday, March 26, 2019

‘Similarly qualified’ African-American employee lacked customer service experience, couldn’t revive failure-to-promote claim

By Marjorie Johnson, J.D.

Though the employee may have had several more years of retail experience, it was not the desired customer-service experience that the successful Caucasian candidate possessed.

An African-American employee who scored slightly lower during the interview process for an operations manager job than the Caucasian candidate who was hired, and who had 11 years of “transactional” retail experience as compared to the Caucasian candidate’s 3 years of “full customer service” retail experience, failed to demonstrate that the employer’s assertion that it selected more qualified candidate was pretextual. Affirming summary judgment against her Section 1981 failure-to-promote claim, the Eighth Circuit also rejected her unsupported contention that the company lowered the job requirements after pre-selecting the Caucasian candidate for the job, in order to ensure that she met the qualifications (Nelson v. USAble Mutual Insurance Co. dba Arkansas Blue Cross and Blue Shield, March 22, 2019, Melloy, M.).

The employee was hired as a customer service representative for Arkansas Blue Cross and Blue Shield (ABCB) in 2004. She later became a claims specialist and then market service rep. She was nominated for and participated in a leadership development initiative. She also had a master’s degree in management and 11 years of retail experience working in clothing stores.

Operations manager job. In March 2014, the customer service supervisor announced she was retiring. In anticipation of the vacancy, ABCB upgraded the position to that of operations manager for the Southeast region and Pine Bluff office. The listed job requirements included a college degree or related experience, two-to-four years of experience in a supervisory or managerial capacity (desired), two years of experience in customer/provider relations (preferred), and experience in the personal computer environment (desired). The job description also stated that related experience and education could be substituted for any part of those requirements.

Selection process. The regional executive in charge of filling the position interviewed three employees: the plaintiff and two Caucasian candidates (one male and one female). Each applicant was asked the same questions and received scores of 1 to 5 in eleven separate categories. The executive also told them that he was looking for someone with retail experience since the new operations manager would be responsible for developing a retail storefront concept at the Pine Bluff office, where customers could come in, ask questions, and select insurance products. In their respective interviews, the two women received the highest scores, with the Caucasian candidate scoring a 45 and the plaintiff scoring a 42.5.

The Caucasian candidate had begun working at ABCB in March 2004 as a customer service representative and eventually became a product specialist and then a large group internal service representative. In October 2013, she became a regional financial risk manager trainee for the Southeast region. Before ABCB, she worked for almost three years as a key account representative for a wireless service provider, where her responsibilities included assisting customers with billing inquiries, sales, rate changes, rate analysis, and equipment deliveries. She also held a bachelor’s degree in business administration.

Caucasian gets the job. The hiring executive ultimately selected the female Caucasian candidate for the position. He claimed that he chose her because “she scored the highest during the interviews” and her duties at the wireless service provider were “extremely similar” to what he envisioned for the Pine Bluff location. The employee filed this lawsuit alleging race discrimination and the district court granted ABCB’s motion for summary judgment, ruling that she failed to demonstrate pretext.

No pretext. The Eighth Circuit agreed thatsummary judgment was warranted since the employee failed to cast doubt on ABCB’s assertion that it chose the Caucasian candidate because she scored higher on the interview and had retail experience that was more directly relevant to the storefront concept that the insurer wanted to develop at the Pine Bluff office. Though the employee argued that she was the more qualified of the two, a “comparative analysis” of their qualifications gave the appeals court no reason to disbelieve ABCB’s proffered reason for its employment decision.

“Similarly” qualified. Both women scored well on the interview and were well acquainted with the Blue Cross products. In addition, while the plaintiff had more years of retail experience, her experience was largely transactional. Conversely, the Caucasian candidate’s experience involved providing full customer service, which was more relevant to the retail storefront development at the Pine Bluff office. Because the comparison therefore only revealed that the employee was only “similarly qualified,” no inference of race bias arose.

Unsupported “pre-selection” argument. The Eighth Circuit also rejected the employee’s contention that the executive had pre-selected Caucasian candidate for the manager position and reduced the minimum job requirements to ensure that she was qualified. Specifically, the employee claimed that unlike other operations manager positions within the organization, the position for the Southeast region and Pine Bluff office did not require a college degree or management experience. However, while it was true that “evidence of preselection and arbitrary manipulation of job requirements to benefit the pre-selected applicant may act to discredit the defendant’s proffered explanation,” even assuming the minimum job requirements were reduced here, there was no evidence indicating that the decisionmaker pre-selected the Caucasian candidate or had any role in the reduction. There was also no evidence that the reduced requirements failed to accurately represent the responsibilities of the position.

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