U.S. Appeals Court Says It’s No Longer Enough to “Merely” Claim A Candidate Is More Qualified

The U.S. Court of Appeals for the District of Columbia has adopted a set of legal principles to assess a notoriously thorny issue in discrimination law – the role of “qualifications” in hiring and promotions.

Henceforth, the court held, it is no longer sufficient for an employer to defend a charge of discrimination by merely stating it hired the ‘best qualified’ applicant.

Employers must “articulate specific reasons for that applicant’s qualifications such as ‘seniority, length of service in the same position, personal characteristics, general education, technical training, experience in comparable work or any combination’ of such criteria,” the court ruled.

The D.C. circuit adopted a test that was initially enunciated by the U.S. Court of Appeals for the Eleventh Circuit and has also been adopted by federal courts of appeal in the Fifth, Sixth and Seventh circuits. The test is intended to prevent employers from circumventing federal discrimination laws by asserting vague subjective criteria that a plaintiff cannot rebut.

Pro Se Litigant

The ruling came in a case filed by Richard A. Figueroa, formerly a Hispanic foreign service officer, who alleged he was a victim of intentional national-origin discrimination by the U.S. Department of State in Puerto Rico when he was denied promotion, and accompanying pay hikes, from 2001 to 2009.

A lower court judge dismissed Figueroa’s pro se lawsuit after the state department argued “that the candidates who were promoted were better qualified.”

The appeals court reinstated Figueroa’s claim of intentional discrimination claim after finding the state department had failed to offer “clear and reasonably specific” evidence to support its claim that other candidates were more qualified.

The court said subjective standards may constitute a legitimate reason for non-promotion but “we also perceive an intolerable risk that a nefarious employer will use them as a cover for discrimination.” The court noted that Plaintiffs “lack the resources (and the clairvoyance) to guess at how their respective decision-makers interpreted the criteria and to explain away each standard at trial.”

Additionally, the court said it doubted that a  “reasonable jury would accept a vague and slippery explanation.”

The appeals court said the State Department set forth a list of promotional criteria – almost all of which was subjective – to justify its failure to promote Figueroa.  The department also provided “declarations” from managers stating they followed the criteria in considering Figueroa’s file.

The court examined a case where a white employee was chosen over a black employee who was deemed less qualified. The court said such a decision could be justified if a hiring panel found both equally qualified in several criteria but the white worker had better scores in management, leadership, sales or knowledge of the customer-service process.

The appeal court notes that a  Plaintiff in a discrimination lawsuit typically has to rebut an employer’s so-called legitimate non-discriminatory reason for its employment action. The Court said employers must present evidence that is sufficient to provide the employee with a full and fair opportunity for rebuttal.

“When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail – that is, offering a vague reason – is the equivalent of offering no reason at all,” the appeals court concluded.

The case is Richard A. Figueroa v. Michael R. Pompeo, Secretary, U.S. Department of State, No. 1: 16-cv-00649 (May 10, 2019).

Impossible Hurdles for Age Discrimination Plaintiffs

One wonders how the plaintiffs might have persuaded  the federal appeals court panel that they were the victims of age discrimination absent a futuristic device that reads an  employer’s mind.

A three-judge panel of the U.S. District Court of Appeals for the Third Circuit in Philadelphia recently granted a pre-trial motion to dismiss an age discrimination lawsuit because the plaintiffs failed to prove the employer’s stated reason for firing them was a pretext or a  lie.

Assistant District Attorneys Edward Gallen, 65, and Robert Miller, 57, were fired shortly after the 2011 election of District Attorney Tom Hogan in Chester County, Pennsylvania.   Hogan requested the termination papers prior to taking office. He fired the men for “poor performance.” He then made public statements that he planned to reorganize the office and establish a “modern” prosecutor’s office.

The appeals court panel ruled that “no reasonable factfinder should infer an intent to discriminate in hiring based on age from Hogan’s platitude about modernizing the District Attorney’s Office.”

Moreover, Hogan fired a total of four assistant district attorneys in their 50s and 60s, including Gallen and Miller, and then hired five younger attorneys in ages ranging from 27 to 42.  The appeals court panel agreed that “on the surface” this looked bad but said it fell short of what was needed to show age discrimination.  The court said the plaintiffs failed to show that Hogan had refused to hire more experienced attorneys who were older.

The third circuit panel said the plaintiffs were required to “point to some evidence, direct or circumstantial, from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reasons … or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s actions.”

The ruling raises a question about whether it is even possible for an age discrimination plaintiff to withstand a motion for summary judgment in the third circuit without direct evidence, such as a memo from a supervisor stating that employee is being fired because s/he is too old.

Is it realistic today to expect savvy employers to commit their illegal intentions to paper?

Technically, it’s not supposed to be a high bar for plaintiffs to withstand a motion for summary judgment, which is a pretrial motion filed by the employer to dismiss the case prior to trial  because “there is no genuine dispute as to any material fact.”  Under federal rules, judges are required to give the plaintiffs (not the employer) every benefit of the doubt. Traditionally, it has been thought that questions of intent and decisions about a witness’ credibility are best left to juries, not to  federal judges who have lifetime tenure and don’t have to worry about a new guy taking office and firing them because they’re too old.

The decision was issued by Judge Thomas Ambro,  Chief Judge Thomas  A. McKee and  Senior Circuit Judge Anthony Joseph Scirica.  It seems worth noting that Scirica is 76 and voluntarily accepted semi-retired status in 2010, at which time he began collecting a fat government pension plus his earnings as a part-time federal judge.

The third district covers Delaware, New Jersey and the Eastern, Middle and Western districts of Pennsylvania.