An interviewer's note that a job applicant was "at the end of her career" was not conclusive evidence of age discrimination, according to a recent Seventh Circuit opinion.
In Marnocha v. St. Vincent Hospital and Health Care Center,1 the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal of an age discrimination lawsuit by a former employee who claimed that her employer discriminated against her in violation of the Age Discrimination and Employment Act (ADEA) when it terminated her employment pursuant to a reduction-in-force (RIF) at one facility, and chose not to rehire her for an open position at another facility.
The employee's claim arose following her employer's decision to restructure and eliminate all neonatologists, including the plaintiff, at a hospital the employer considered to be overstaffed and lacking in demand. The employer decided that the duties performed by the neonatologists could be absorbed by neonatologists at another hospital that also was seeking to fill an open neonatologist position. Accordingly, the employer invited each of the impacted neonatologists to apply for the opening at the other hospital. The plaintiff was the oldest among the four neonatologists who elected to apply for the open position.
Based on the unanimous recommendation of an interview panel, the employer ultimately selected the youngest neonatologist for the open position. This individual was distinguished for her "high energy," preparedness, positive attitude, and detailed plan on how she would successfully transition to a higher acuity and busier hospital unit. The plaintiff, on the other hand, presented as "somewhat overconfident" regarding her own abilities, unprepared to address industry changes, and unwilling to adapt to the busier pace of a different facility.
Despite the facially benign consensus, the crux of the plaintiff's age discrimination claim relied almost exclusively on the notes kept by the panelists during the interview process. One interviewer, in particular, noted that the plaintiff was "at the end of her career." The interviewer later clarified that as an administrator, he "wanted to build for 20, 30 years in the future, not just for the next five years." He went on to explain that he "would be remiss if [he] didn't take both immediate needs as well as future needs into account when hiring."
The employee claimed that the hospital discriminated against her based on her age and filed a lawsuit alleging violations of the ADEA. The plaintiff claimed in the lawsuit that the interviewer's note, in conjunction with the panelists' preference for a "high energy person," was indicative of age discrimination. The employer moved for summary judgment, and the federal district judge dismissed the plaintiff's claim concluding that no reasonable trier of fact could find that the hospital terminated or failed to hire her because of her age. The plaintiff appealed the case to the Seventh Circuit.
The appellate court rejected the plaintiff's argument that the district judge acted inappropriately by dismissing her case. The court found that the interviewer's comment, when placed in context, absolved him of any discriminatory intent. Specifically, the court concluded that consideration of whether a prospective employee may serve the long-term needs of a company is a legitimate, non-discriminatory factor in making hiring recommendations. The court's reasoning is consistent with its prior ruling that the description of an applicant as a "later career person" is not "an inevitable euphemism for old age."2 In any event, there was no evidence that the interviewer steered the rest of the panel away from hiring the plaintiff, or that he even shared his views on the plaintiff's career stage with them.
Next, the court confirmed that evaluation of an applicant's energy level is not inherently connected to age. Rather, it was the type of non-discriminatory criteria that discrimination laws seek to encourage. In this case, it served as one of many critical factors that the employer considered in choosing the youngest candidate over the plaintiff, whose interview was notably inferior. The court found that the employer's explanation for its decision to hire the younger applicant – that she was a better candidate – to be a legitimate, nondiscriminatory reason for refusing to hire the plaintiff. As a result, the court of appeals affirmed the district court's dismissal of the plaintiff's claims.
The court's decision provides some latitude for employers to consider both the career longevity of prospective employees and how these individuals would address the long-term needs of the company, as long as they are addressed without relying on age as a factor in the hiring process. Moreover, it protects an employer's legitimate interest in favoring a "high energy" candidate as an evaluative factor independent of age. Nevertheless, it also serves as a stark reminder of how stray comments may be misinterpreted as age-related and emphasizes the importance of creating a strong record of non-discriminatory selection criteria during the interview process.
1 Case No. 20-1374, 2021 WL 220761 (7th Cir. Jan. 22, 2021).
2 Skiba v. Ill. Cent. R.R. Co., 884 F.3d 708, 722 (7th Cir. 2018).
Originally Published by Littler Mendelson, February 2021
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