Employment Law Daily ‘Skip’ written next to name of applicant who previously sued supports revival of his retaliation claim
Monday, May 2, 2016

‘Skip’ written next to name of applicant who previously sued supports revival of his retaliation claim

By Kathleen Kapusta, J.D. Although a plaintiff who received only one interview after applying for 26 county positions could not rely on an HR rep’s alleged statement that his “employment was blocked from up the street . . . because of the previous lawsuit that [he] had filed,” he nonetheless established a convincing mosaic of circumstantial evidence from which a jury could infer that the county retaliated against him because of that lawsuit. Vacating the district court’s grant of summary judgment against his Title VII claim, the Eleventh Circuit in an unpublished opinion pointed to, among other things, an unexplained asterisk and the word “skip” next to his name on the interview score sheet and recommendation form (Calvert v. Jane or John Doe, April 25, 2016, per curiam). In 2004, the plaintiff sued the county, his employer at that time, for race discrimination. Upon settling the suit, he applied for 26 county positions, was granted one interview, and although he was ranked fourth out of all the candidates and recommended for hire, he did not receive an offer. He sued for retaliation but the district court granted summary judgment to the county. Somebody up the street. On appeal, the plaintiff argued that the district court erred in excluding as inadmissible hearsay the HR rep’s statement, which she also purportedly made to the employee’s friend, a member of the selection committee. These statements were not, as the employee contended, admissible under Fed. R. Evid. 801(d)(2)(D), which excepts from the definition of hearsay statements used against a party that were “made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” While the court held in Kidd v. Mando American Corp., that a “statement made by a non-decisionmaker may be both relevant and attributable to the defendant employer if the non-decisionmaker was sufficiently involved in the decisionmaking process leading up to the adverse employment action,” that was not the case here. There simply was no evidence that the HR rep’s duties—scheduling interviews, answering questions, being the designated contact person for acceptances—rose above a ministerial role in the decisionmaking process. Although she also selected interview questions, helped average applicant scores, and submitted the recommendation form to the final decisionmaker, this was not enough to show she was sufficiently involved in communications between the decisionmaker and anyone “up the street” who had the authority to block the plaintiff’s candidacy. Nor were the statements admissible under Rule 801(d)(2)(C) as statements “made by a person whom the party authorized to make a statement on the subject.” Although the rep may have had authority to answer questions regarding the interviewing process, there was no evidence she was authorized to make statements to candidates regarding the actual reasons they were not hired. Convincing mosaic. Nonetheless, the plaintiff established a triable issue of fact, said the court, noting evidence that between his interview and the sending out of offers, the HR rep told the decisionmaker that the plaintiff had been fired by the county before and that this led to his prior lawsuit. Although the decisionmaker claimed she did not hire the plaintiff because he kept calling the HR rep, demanding to be hired based on his ranking, this explanation was contradicted by the rep’s testimony that he called to ask about how he scored and by a voicemail message he left inquiring about his score. The decisionmaker’s claim that his demands to be hired came after the interview process but before selection of any candidates was also contradicted by the fact that offer letters to the first five candidates were sent on July 5, but the plaintiff did not leave the voicemail inquiring about his score until July 11. Finally, pointing to the asterisk and the word “skip” next to his name on the interview score sheet and recommendation form, which the HR rep admitted she wrote (but couldn’t remember why), the court found that this evidence, combined with the fact that the plaintiff was not hired despite scoring within the top four candidates, created a triable issue concerning the county’s discriminatory intent.

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