By Steve Shardonofsky and Alex S. Oxyer

Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently reversed summary judgment in favor of an employer on failure to promote claims, finding that the apparent preselection of a candidate prior to the interview process cast doubt on the selection criteria and the purported reason(s) the plaintiff was not hired. The case — Stokes v. Detroit Pub. Sch. (6th Cir. Mar. 31, 2020) is a must-read for employers and hiring managers looking to avoid potential pitfalls in the hiring process.

Case Background

The plaintiff had worked for Detroit Public Schools (DPS) for ten years, most recently as Acting Deputy Executive Director of HR. He applied and interviewed for the position of Executive Director of Talent Acquisition. Instead of hiring the plaintiff, DPS hired a younger, female applicant even though she had initially applied for a different job and was not required to submit her transcript, though transcripts were normally required in the process. The plaintiff received the lowest interview scores of the three applicants interviewed during the process, and the candidate who was ultimately hired received the highest.

The plaintiff filed suit, claiming he was not selected because of his age and gender. On summary judgment, the school district argued there was no evidence of pretext because the plaintiff had performed poorly during his interview and was not the best candidate for the job, because he struggled to attract teachers while he was Acting Deputy Executive Director of HR. The district court granted the motion and dismissed the plaintiff’s claims, rejecting the argument that DPS’s non-discriminatory reasons were pretextual.

The Sixth Circuit Reverses

The plaintiff argued on appeal that there was sufficient evidence to raise a fact issue as to pretext: (1) the irregularities in the interview process; (2) that he was allegedly more qualified than the individual hired; (3) evidence that before the interview process began the school district had already chosen the candidate who was ultimately hired; and (4) the plaintiff’s positive performance reviews, which he claimed undermined the argument that he was not a good fit for the new role.

Regarding the first argument, the Sixth Circuit found that “irregularities in a company’s interview process alone do not constitute pretext sufficient to overcome summary judgment.” Id. at *5. Because the plaintiff could not show that any irregularities actually prejudiced him in the selection process or evidenced dishonesty or bad faith on the part of the school district, the irregularities were insufficient alone to raise a fact issue regarding pretext. The plaintiff’s argument that he was better qualified was also rejected by the Court. Though the plaintiff had more years working in HR and recruitment, the individual hired had teaching experience, could have been found by a reasonable decisionmaker to be better-suited for the talent acquisition job, and therefore it was not objectively clear that the plaintiff was better qualified.

However, the Court found persuasive the plaintiff’s argument that the candidate hired was potentially selected for the job before the interviews began, thus undermining and calling into question the Defendant’s non-discriminatory reasons for rejecting the plaintiff. The evidence included emails where DPS discussed how the hired applicant was a good fit for the open position, even though she had actually applied for a different job. These emails, along with the irregularities in the interview process (including the fact that the individual hired was not asked to submit a transcript and that the ultimate decision was not made unanimously as required by DPS policy), called into question and undermined the reasons Defendant presented for not hiring the plaintiff. Accordingly, summary judgment on the plaintiff’s claims was inappropriate. The Court ultimately reversed and remanded the case to the district court for further proceedings.

Implications For Employers

The Sixth Circuit’s decision outlines several pitfalls for employers in the hiring process. Whenever possible, employers should strictly follow their pre-established policies and protocols for hiring and interviews, or risk having the process and the resulting decisions called into question during litigation. While there may be legitimate reasons to bypass or change standard protocols, any deviations should be rare, well-documented, and done for legitimate reasons. Indeed, any hiring and interview processes should be conducted in good faith and should not be undertaken to rubber-stamp a decision already made, especially if the other candidates do not have a real chance to land the role.

The case also serves as a good reminder about the importance of completing performance evaluations accurately, even to a fault. If an employer later attempts to rely on an employee’s poor performance to justify an adverse action against, the reason can be undermined and raise an inference of discrimination if the deficiencies were never documented and reviews show a history of positive performance.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.