Employment & Labor Insider

On Monday, a federal judge refused to dismiss a lawsuit alleging age and "reverse" race discrimination. The plaintiff is white and in his late 40s, and he lost out on a promotion to a Black male in his 20s.

The court and I thought the employer’s rationale sounded a little fishy. Do you agree?

The fishy decision

Our plaintiff – we’ll call him “Mack” – was hired in 2018 as a Golf Course Superintendent for a city. In that position, he reported to the Recreation Manager. There is no indication in the court's decision that Mack had any performance or other issues.

In July 2021, Mack’s boss resigned. On his way out, he told Mack, “We will get everything set up for you.” And the City Director of Parks and Recreation told Mack that he should attend meetings and handle employee performance reviews. According to the court, Mack understood this to mean that he was still Golf Course Superintendent but also interim Recreation Manager. It does not appear that Mack had any shortcomings in this role.

In September 2021, the City posted the regular, permanent Recreation Manager position. Mack applied the same day. He also kept his confirmation email and texted the Director of Parks and Rec saying he had applied. And he apparently kept a copy of the text.

Mack is no fool. Promote that guy!

Some time later, the City decided to lower the hourly pay rate for the position, and Human Resources told Mack that he would have to reapply. The court’s decision doesn’t indicate that he did so, so I am going to assume he did not.

The City started interviewing in August 2022, almost a year after the position was initially posted. Two people were interviewed. One was Mack, who seems like the logical choice because he’d been doing the job for more than a year and, apparently, doing it well. The other was an outside candidate -- the young Black candidate who got the job. We’ll call him "Corey."

Neither Mack nor Corey met all the requirements for the Recreation Manager position, but they both seem to have been good candidates. Corey didn't have extensive work experience, but he had a business degree in Marketing with a concentration in PGA Golf Management. And he’d been Head Golf Professional at a course in Nashville, and Program Director for a youth golf organization.

Mack didn’t have a college degree or any golf affiliations, but he had some 30 years of golf-related experience, roughly three years reporting directly to the person he hoped to replace, and one year of experience performing that person's job on an interim basis. Apparently satisfactorily.

When Mack didn't get the promotion, he filed his discrimination suit. The City asked the court to dismiss Mack's claims, saying (1) Mack never applied for the Recreation Manager position, (2) Corey interviewed better, and (3) Corey was more qualified. The court found that these explanations were fishy, and I agree.

"I don't feel so good."

Here are the court’s reasons for sending the case to trial, with a few of my own questions and opinions mixed in:

The application process seemed fishy.

Mack applied for the position the day it was posted. But the City told the court and, before that, the U.S. Equal Employment Opportunity Commission that Mack never applied for the job.

Employers, it’s not smart to say things to the EEOC that you won’t be able to support with evidence. It's even worse if your adversary has evidence to the contrary, which Mack did. Once you get sued, plaintiffs and the courts will use your inaccurate statements against you. Mistakes happen, but if you learn that something you told the EEOC was wrong, go ahead and make a correction with the EEOC – on the record, and with an appropriate explanation – as soon as possible. If you do that, at least you won't be accused of dishonesty.

And another thing . . .

I don’t understand why Mack did not reapply when he was told to do so, assuming he did not. But the three-day-old fish (or guests) coming from the City were worse. First, Mack had the documentation to prove that he applied the first time. Second, if he didn’t apply, why did the City tell him he needed to “reapply”? Third, if he neither applied nor reapplied, why did they interview him at all?

And another thing . . . 

Why were there no interviews for a year after the position was posted? Even though the interim guy had applied for it immediately. The court doesn’t say, but I'm sure Mack will argue that it was because the City was waiting for someone – anyone – other than Mack to apply for the job so they wouldn't have to promote Mack.

The “interview performance” rationale was also fishy.

According to the court, there was no indication in contemporaneous interview notes that Corey was a better interviewee than Mack. Neither the HR Director nor the Deputy Parks and Rec Director were able to explain why they gave Corey higher “experience” ratings than Mack. Even more suspicious, according to the court, the interview notes indicated that Corey and Mack were not asked the same questions. “[Corey] was asked about his management skills and goals for the golf course’s future. [Mack] was asked about budget management and how he would respond if he did not get the job.” (Citations omitted; emphasis added.)

Minds already made up?

The "qualifications" comparison was fishy.

The position required a college degree and a minimum of six years’ supervisory experience. Mack did not have the degree, but he had more than the required experience. Corey did not have the experience, but he had the degree. According to the court, “[A] jury could conclude the City cherry-picked the credential favoring [Corey].”

Day Four of Seymour's visit to Wanda.

My two dead fish -- er, cents

An interim incumbent is not always the most qualified person for the permanent job. Mack could have been strong in turf management and golf-related stuff, but terrible with budgets (or vice versa). He could have been a jerk. These would have been good reasons not to select him, despite his "interim" experience. But apparently none of this was the case.

Another arguably legitimate explanation for choosing Corey could be pay. When the City told Mack to reapply, they said it was because they had reduced the hourly rate for the job. Did that mean Mack would have taken a pay cut if he'd been promoted? Maybe. But the court's decision doesn't indicate that. And Mack stayed in the running after the rate was reduced. Also, the City apparently did not argue that it was motivated by a desire to avoid adversely affecting Mack's pay.

I will close with my usual summary judgment disclaimer: It is possible that when the case goes to trial, the jury will find that Corey was selected for reasons, good or bad, that were unrelated to race or age. But the City may not want to take that risk. If not, it may be time to wrap this dead fish in a newspaper and throw it out. (In other words, settle.)