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“Courts do not sit as super-personnel managers.” It is hard to imagine a more well-established principle (or one more often cited by defense counsel) than that a court will not interfere with an employer’s decision as to who it will hire, promote or retain, so long as the decision is not based on illegitimate reasons. But there remains a level of skepticism over subjective decisions that are, by their nature, based on reasons that can be easily manipulated or manufactured. Two recent decisions, one each from the 8th and 10th U.S. Circuit Courts of Appeal, highlight the broad discretion courts will allow employers in explaining a decision using subjective criteria, rather than quantifiable facts or figures. ‘POOR FIT’ EXPLANATION Edward Chambers was 51 years old when he interviewed for various positions with Metropolitan Insurance Company. Chambers had been employed for most of his career with St. Paul Insurance, which was purchased by Met. Chambers’ position with St. Paul was being eliminated, but he was given the chance to interview for various positions with Met. Chambers went 0 for 4 in his interviews, with each job going to an applicant or employee under the age of 40. He sued Met for age discrimination. The District Court’s decision granting summary judgment in Met’s favor was appealed. The 8th Circuit’s decision is reported in Chambers v. Metropolitan Property and Casualty Ins. Co., No. 02-2846. Chambers first interviewed with Met’s Compliance Department in Minnesota. The person ultimately hired for the position was Chamber’s former subordinate, Pamela Johnson. The decision-maker, Michelle DeWine, who was 46, explained her choice of Johnson over Chambers based primarily on her assessment that Johnson’s “demeanor and interpersonal skills were better suited to working with [insurance] regulators as compared to Chambers’ intense and assertive manner.” While DeWine also noted that Johnson had more specific experience in the type of work performed in the Compliance position, she clearly relied on her belief that if Chambers was put in the position, he might antagonize the insurance regulators. Similarly, Chambers interviewed for three other positions with Met. In those cases, the decision-maker (there was just one for all three positions) concluded that Chambers did not have quite the right qualifications for the positions. For one of the positions, Chambers’ personality was again considered a hindrance, as the supervisor stated that Chambers’ “personal style” (i.e. intense and assertive) would be a poor fit in the office. The supervisor explained, “you have to be careful that the person’s personality fits in with what you’re trying to accomplish in that team setting.” While Chambers’ personality was apparently unsuitable for Met, he presented evidence that, while at St. Paul, he received good evaluations and, most important, his interpersonal skills had been praised. The 8th Circuit found these reviews to be irrelevant, since they were from St. Paul, not (the alleged discriminating employer) Met. “[T]he present case involves two different companies, and the employer who made the favorable reviews is not with the company accused of discriminating in the hiring decisions.” ASSESSMENTS AND SCORES The employer’s subjective basis for personnel decisions was also recently addressed in Jones v. Barnhart, No. 01-cv-2017 (10th Cir. Nov. 20, 2003.) Lisa Jones worked for the Kansas City office of the Social Security Administration when she applied for a promotion to the position of paralegal-specialist in 1997. Jones was a union employee, governed by a collective bargaining agreement. Under this agreement, Jones’ candidacy was initially screened under a somewhat complicated scoring system in which points were awarded for various qualifications. All of the candidates who met a certain point-level were considered “well-qualified” and were given interviews for the job. Ultimately, each of the three candidates hired instead of Jones were revealed to have had lower scores than Jones. Jones claimed that she was discriminated against as an African-American woman, as the three successful candidates were all Caucasians. She argued that her higher score indicated that she was better qualified for the position(s) than the successful candidates. She was also the best-educated candidate and the only one with a paralegal-specialist certificate. The 10th Circuit rejected Jones’ claim of discrimination, finding that, while she had certain advantages over the successful candidates, “each successful candidate had held specific jobs at the SSA that [the interviewer] felt would enable new the paralegal-specialists to grow more quickly into their new jobs and interact better with the Administrative Law Judges” than would Jones. Jones’ former supervisor also testified that, as the court noted “there was reason to doubt Jones’ skills in this area.” The significance of both Jones and Chambers is that the subjective assessments of the employers are, and continue to be, sufficient to withstand the challenge of pretext. While the decisions in question were supported by some moderate objective evidence, both Met and the SSA did not hesitate to say they just didn’t think the persons would do a good job. It is difficult to imagine a more subjective assessment than this, but in each case, without strong evidence to the contrary, the employer’s rationale was upheld and the employee’s claim was defeated. Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected].

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