Hey, management-side employment lawyers! Bookmark this post now and thank me later.

noun-jackpot-982199We’ve all been there as defense attorneys.

You find yourself defending claims of disparate treatment under a federal anti-discrimination statute like the Age Discrimination in Employment Act (ADEA) where your client hired someone younger than the plaintiff. The only logical explanation, according to the plaintiff, is age discrimination. Why? Because the plaintiff just knows that she was more qualified than the other person.

That’s essentially this case. Here, the defendant posted a job opening online. The plaintiff was the internal candidate. She applied for that job and didn’t get it. Instead, the defendant hired an external candidate that it felt had better credentials and interviewed better. She just happened to be ten years younger.

So, cue the ADEA claim.

Subjectively, the plaintiff felt she was the more qualified candidate. The court, however, was having none of that.

“Employers enjoy ‘unfettered discretion to choose among qualified candidates’ and to decide which types of credentials are of the most importance for a particular job, and courts defer to employers to select what criteria are important to them when evaluating the issue of pretext.”

The court also noted that unless the plaintiff is obviously the better candidate, “the Court is not to act as a ‘super personnel department,’ second-guessing the merits of defendants’ legitimate business decisions.”

Two great quotes so far. Here are a few more to cut and paste into your next summary judgment brief:

For when the plaintiff subjectively believes that her credentials are stronger.

“To survive a motion for summary judgment, an employee asserting that his employer’s proffered explanation is a pretext for discrimination based on his supposedly stronger qualifications must demonstrate that his credentials are so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the employee for the job in question.” (cleaned up)

For when the company believes knows the internal candidate’s shortcomings and opts for an external candidate instead.

“It does not violate the law for a decision-maker to prefer someone whose work he or she already knows and likes to an outsider whom he/she knows only through a resume and an interview, [and] the converse is equally true.”

For when the plaintiff tries to use a co-worker to prop herself up.

“A coworker’s positive opinion of a plaintiff’s work is inadequate to create an issue of fact where the employer was dissatisfied with plaintiff’s performance.”

For when the plaintiff interviews poorly or the employer bases its employment decision on other subjective criteria.

“There is nothing unlawful about an employer’s basing its hiring decision on subjective criteria, such as the impression an individual makes during an interview.”

The employer here got summary judgment on the plaintiff’s ADEA claims. Perhaps you can too by citing this decision.

“Doing What’s Right – Not Just What’s Legal”
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