Employer’s ‘disturbing procedural practices’ support employee’s non-promotion claim

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By Joy Waltemath

By Kathleen Kapusta, J.D.

Citing evidence of “disturbing procedural practices” in the selection for promotion of a successful candidate over the rejected African-American employee, including a pattern of preselection by the decisionmaker, a federal district court in Oklahoma found the employee successfully established an inference of pretext. Accordingly, the court denied the employer’s motion for summary judgment against his Title VII race discrimination claim (Edwards v. State of Oklahoma, January 30, 2017, Cauthron, R.).

The Oklahoma Bureau of Narcotics and Dangerous Drugs Control (OBN) employee alleged that he was passed over for a promotion for an open agent in charge (AIG) position when the director chose a candidate who was of Native American and Hispanic descent. Suing under Title VII, he claimed the director knew before the interviews whom he wanted for the job and that the plan was at least partially based on race discrimination.

Qualified. At issue in his prima facie case was whether he was qualified for the position. Finding he sufficiently established this element, the court noted that not only did the director testify that he believed the employee was qualified, the employee had a bachelor’s degree as required by the vacancy announcement and had been working at OBN for more than 18 years when he interviewed for the position, 15 years more than the required three years’ experience in law enforcement. And while OBN argued he was less qualified than the successful candidate, this did not persuade the court that he was without the necessary objective qualifications.

Pretext. Because OBN asserted two reasons for hiring the successful candidate—he was more qualified for the position and the employee underperformed during the interview—the court turned to the employee’s evidence of pretext, including his claim that the director had preselected individuals for promotion in the past, thereby making qualifications irrelevant. Specifically, he alleged, the director twice requested funding to send two individuals to “chief school” even though they had not yet reached the position of chief. Those individuals soon thereafter interviewed for chief positions and the director selected each of them. Given this past evidence of preselection, the employee argued, a jury could infer the same occurred when the director and the successful candidate traveled to Philadelphia just before the AIG interview to attend a conference and social events.

Arguing further that the selected candidate was not the best candidate for the position, the employee pointed out that he had demoted in 2006 due to an inappropriate sexual relationship with a confidential informant while the employee had never been disciplined. And while he admitted he “froze” during the interview, he claimed they both performed poorly and the successful candidate self-graded his own interview at 70 percent.

Truth gets lost. The employee also argued that a jury could infer the director was not a truthful person and was acting in his own self-interest as at the time the AIG interviews were taking place, another Hispanic male had filed a discrimination claim against OBN. This, the employee asserted, caused the director to preselect the successful candidate for the AIG position because he was also Hispanic. Moreover, during the jury trial on that individual’s claim, an employee who had worked with the director for over 26 years testified that he “tends to frame things in the light that best suits him and sometimes the truth gets lost in there a little bit or a least massaged, if you will.”

According to the employee, the director expected greater scrutiny of his hiring practices due to the pending discrimination claims and used the AIC interview process to build a negative record against him in order to support his preselection choice. He pointed to the director’s reliance on the negative opinion of the employee’s indirect supervisor, rather than the “exceeds-standards” ratings given by his direct supervisors. Further, he showed that two other agents, including the successful candidate, made negative comments about him during their own interviews and both were promoted shortly thereafter while he was not.

Disturbing practices. While OBN argued that small differences in qualifications could not give rise to an inference of pretext, the court pointed to disturbing procedural practices, including the subjective nature of the director’s accepting other applicants’ opinions of the employee during their own competing interviews, a pattern of preselection, and the pending discrimination claims against the OBN during the time at issue. Denying summary judgment to OBN, the court observed that the employee “combatted Defendant’s reasons with ‘evidence that the employer didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda.’”

Source:: Employer’s ‘disturbing procedural practices’ support employee’s non-promotion claim


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