In this case, the Court of Appeals affirms the grant of summary judgment to management on the plaintiff's age discrimination claim even though she argued that multiple younger candidates were offered positions for which she was more qualified.
The case is Peddy v. L'Oreal, a summary order issued on May 20. I argued the appeal for Peddy. After her position was eliminated, Peddy reapplied for six or seven other jobs within the company. The positions went to younger candidates, and the evidence showed that many of them did not have the minimal qualifications for the position. The company argued that it used business judgment in making these hiring decisions, and that it had a policy of not rehiring employees into lesser titles that would amount to demotions for the candidate.
The Court of Appeals (Walker, Park and Nardini) held as follows: first, it noted that the Second Circuit stated in Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001), that in a failure-to-hire case, the plaintiff must show her credentials were “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 plaintiff for the job in question.” That holding favors the defendant in this case, the Court states, because "For the positions Peddy highlights, the selected candidates each had experience that roughly matched the job postings. Thus, Peddy’s credentials were not 'so superior' that they would support an inference of discrimination." This is interesting reasoning. The Court does not note Peddy's argument that the selectees did not have the minimum qualifications or Peddy's experience in the industry. This holding stretches Byrnie quite a bit.
A few words about the "so superior" standard in Byrnie. Title VII does not include this language, which draws from the general rule that management enjoys some discretion in choosing among qualified candidates. Byrnie, in turn, took the lead from two other appellate rulings, Deines v. Tex. Dept. of Protective & Regulatory Services, 164 F.3d 277 (5th Cir. 1999), and Fischbach v. D.C. Dept. of Corrections, 86 F.3d 1180 (D.C. Cir. 1996). These cases stand for the proposition that the plaintiff cannot win unless “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question” (Deines) and “Title VII liability cannot rest solely upon a judge's determination that an employer misjudged the relative qualifications of admittedly qualified candidates” (Fischbach). A reading of Dienes shows the Fifth Circuit had been using that language for years. The D.C. Circuit had also previously used this language, and Fischbach cites the general rule that courts cannot serve as super-personnel boards. Should the courts reconsider this judge-made principle that might excuse subconscious or even overt bias when other candidates are also qualified for the position? Surely a jury can find that management discriminated even when choosing among qualified candidates.
Another holding in Peddy is the Court's finding that management had a policy that prohibited re-hiring employees into lesser positions. But the evidence for this "policy" was the deposition testimony of a managerial witness, not a written policy. We argued the jury does not have to credit that policy because it was breached on two occasions with other employees and the jury does not have accept testimony from interested witnesses, as per the Supreme Court's language in Reeves v. Sanderson Plumbing, 530 U.S. 133, 151 (2000): "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'” Plaintiffs' lawyers often cite this language from Reeves, but I have not seen the Court of Appeals invoke it for purposes of rejecting summary judgment in employment discrimination cases.