Employment Law Daily Whether hiring decision was based on poor communication skills or Egyptian heritage was jury question
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Monday, January 7, 2019

Whether hiring decision was based on poor communication skills or Egyptian heritage was jury question

By Kathleen Kapusta, J.D.

Although comments by the individuals that interviewed an applicant for a deputy sheriff position regarding his “Egyptian descent” and his cultural differences were not direct evidence of discrimination, they were sufficient to create a fact issue as to whether the proffered reasons for not hiring him—his poor interview performance and communication skills—were pretextual. Accordingly, a federal court in Florida denied cross-motions for summary judgment on the applicant’s Title VII, Section 1981, Section 1983, and state law national origin and race discrimination claims (Saweress v. Ivey, January 1, 2019, Dalton, R., Jr.).

Almost three months after he applied for a deputy sheriff position, the applicant was interviewed by three members of the oral review board (ORB). According to the applicant, who was born in Egypt, he was asked where he learned English, where he went to school, and whether he was a U.S. citizen. For their part, the interviewers claimed he responded to a hypothetical by stating that he didn’t trust people and he didn’t think he owned them an explanation. And when asked whether he had any weaknesses, he responded “I do not have any weaknesses that will prevent me from doing this particular job, according to the application and everything and the policy, proficiently.”

Cultural differences. After the interview, two of the three ORB members recommended failing him on several issues, including communication. The first wrote “Egyptian De[s]cent” in the comment section on the interview form and also stated that he “may have some cultural differences that may make it difficult for him to deal with professionally,” tying this comment to the fact that the applicant “made it very clear that he didn’t need our feedback.” While the third initially recommended passing him, he changed his recommendation based on the concerns raised by the other two.

No direct evidence. Arguing that the comments regarding his Egyptian descent and his cultural differences were direct evidence of discrimination, the applicant observed that as examples of his “cultural differences,” the first interviewer pointed to the applicant’s defiance and unwillingness to accept feedback even though the interviewer admitted he knew nothing about Egyptian culture. The applicant also pointed to the fact that this same interviewer passed a Hispanic applicant whom he criticized for many of the same communication issues.

Maybe it’s a personal thing. To the court, however, these comments did not rise to the level of “the most blatant remarks” necessary to constitute direct evidence as it was unclear whether they impacted the interviewer’s decision or were merely just additional comments on the interview form. And statements the interviewer made during his deposition, in which he attempted to clarify his earlier comments, just created further fog. While he explicitly stated that if the applicant’s inability to accept feedback and criticism and his defiance could be attributed to “cultural differences,” which he “was probably… assuming at the time,” then they did play a factor in his decision not to hire him, observed the court, noting further that he also walked this statement back, saying “perhaps ‘cultural’ is not the proper word” and that his concerns “could be a personal thing.” Thus, the applicant’s motion for summary judgment based on direct evidence was denied.

Circumstantial evidence. However, the applicant established a prima facie case of discrimination under the circumstantial evidence method as he showed that if the position he applied to was filled, it was filled by someone outside his protected class. Because the sheriff’s office presented a legitimate, nondiscriminatory reason for its decision—he performed poorly at his interview and lacked the requisite communication and interpersonal skills—the court turned to the issue of pretext. And here, he offered “a multitude of evidence” to chip away at the proffered reasons, including his assertion that he never said in his interview that he did not have any weaknesses or that he does not trust people. In addition, he highlighted the first interviewer’s decision to pass another candidate who had difficulty communicating and the third interviewer’s statement that he worked with other previously hired deputy sheriffs with communication issues to help improve their communication skills.

Further, said the court, the strongest evidence of pretext were the “dubious comments” offered by the applicant as direct evidence of discrimination, including that he was of “Egyptian de[s]cent” and that he “[m]ay have some cultural differences that may make it difficult for him to deal with professionally.” These perceived cultural differences, including that he was “very defiant,” unwilling to accept feedback, and not a team player, were “most astounding” because the report form filled out by the interviewer was silent as to his defiance, unwillingness to accept feedback, and inability to work as a team player, not to mention the interviewer’s confession, “I know nothing about the Egyptian culture.” Thus, said the court, there was a genuine dispute as to what weight, if any, the interviewer (and the entire ORB, as other members deferred to him) gave to these “cultural differences” in concluding that the applicant should not be hired.

Affirmative defense. Finally, the court addressed the applicant’s assertion that he was entitled to summary judgment on the defendant’s first affirmative defense—that even if he could prove that race or national origin motivated the alleged employment action, the same action would have been taken even absent such motivation. Here, explained the court, a reasonable jury could find that he would not have been hired regardless of any “impermissible motivating factor.” There was a genuine fact dispute as to whether his “cultural differences” impacted the interviewer’s decision not to hire the applicant or whether he relied only on legitimate, nondiscriminatory reasons. And even if these cultural differences factored into his decision, it was unclear whether they played any role in the decisions of the other two ORB members, said the court, denying the applicant’s request for summary judgment.

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