I have been looking around for a topic to share that was not COVID-related. Here it is, George v. Youngstown State University, a newly published opinion by the U.S. Court of Appeals for the Sixth Circuit that, once again, finds in favor of the former employee in a case involving discrimination and retaliation claims. Let’s look at what happened.
In 1999, John George was hired on a one-year contract by Youngstown State University as an instructor in the School of Engineering Technology. Soon after, he applied for, and was hired, as a tenure-track assistant professor. Five years later George sought tenure but was unsuccessful. He later claimed to have “learned” that the position was “earmarked” to be filled by a minority. So, in 2006, after the position was filled by one of George’s former undergraduate students who was African American, he filed suit claiming sex, race and age discrimination.
George’s first lawsuit was settled in 2008. The agreement required the university to reinstate George as an assistant professor on a year-to-year contract that would necessitate “just cause” for termination until the end of the 2011-2012 school year. The agreement further provided that if the university declined to renew his contract at any time, it had to pay his group medical insurance until he became eligible for Medicare.
Lesson #1: Never agree, as part of a settlement, to reinstate the employee who sued your company. Read on and the reason will become clear.
George continued to work for the university until spring 2015. At that time, Abraham, the Dean of the College who had been tasked with administering the settlement agreement, and Sturrus, who was the chair of the tenure appeal committee that previously denied George tenure, discussed budget cuts and that the college would lose “term” positions. George’s position was specifically mentioned during this discussion.
George was told by his department chair that his contract would not be renewed, and that Abraham had made the decision. It turns out that George was the only term faculty member who was not renewed. He was also the only faculty member who had previously engaged in protected activity. His employment as an assistant professor ended, but he continued as an adjunct teaching two intro-level classes with no benefits and a loss of most of his pay.
During his second lawsuit (we all saw this coming), George would dispute the budgetary reason for his termination because there were several faculty members who had just retired, and enrollment was stable. Also, Abraham said his non-renewal was necessitated by a professor who had returned from a leave of absence, but George was not covering that professor’s courses and those that did were not let go.
Lesson #2: Your decision should pass the smell test!
George, now in his mid-sixties, applied for several teaching and administrative jobs at the university. One such position, Director of Dual Enrollment and Student Support Services in the Mathematics Department, went to Seitz, a woman who was in her forties. According to the university, George was not qualified because he did not have a master’s degree in mathematics. George however asserted that he was qualified based on his bachelor’s degree in mathematics, his master’s degree and doctorate in education (which had a concentration in mathematics) and his mathematics teaching license.
There was testimony given that the university generally considered “equivalent” education and did not view the listed educational requirements as “strict” requirements. Also, Goldthwait, a member of the search committee, testified that he had suggested that George be considered, but he was immediately shot down.
Goldthwait also testified that he viewed George’s credentials as “more than equivalent” to those which were required. In fact, when Seitz applied for the job, she did not yet have a master’s in mathematics, and the posting did not reflect that “in progress” was acceptable. Instead, the job requirements were changed to extend the deadline for “earning” the master’s degree so that Seitz would have earned it by the new deadline, thereby being eligible.
Lesson #3: Don’t mess around with credentials.
Either the person who is being hired meets the minimum qualifications for the job, or they don’t. And, if you are willing to accept “equivalent” qualifications or make allowance for a candidate who is near completion of the required degree, then say so. However, it is dangerous to do so after the fact in order to hire the “preferred” (and in this case, younger) candidate. Once you start making exceptions, this historical fact will be used against you in litigation.
Then there was testimony about the preparation for depositions. Another search committee member told Goldthwait that if he was asked whether Seitz had been “preselected” he should say no (even though Goldthwait didn’t recall one way or the other).
Lesson #4: Where should I start?
First, instruct all witnesses to avoid discussing the case except with legal counsel under the cloak of privilege and, seriously, let’s try to avoid the solicitation of perjurious testimony. Good grief!
As indicated above, George filed a charge for age discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC) in January 2016. While the charge was pending, George applied for another position: Assistant Director of Research Services.
Fifteen people, including George, applied for the position and the field was narrowed to four. Mike Hripko, who headed the Office of Research and reported to Abraham, let Abraham (with whom he was very close) know that George had applied. Hripko, while not on the search committee for the newly posted position, sat in on only one of the four interviews, George’s, allegedly because the committee chair had an emergency.
Lesson #5: Don’t try to stack the deck.
Hripko later testified that George was not impressive during his interview because he was unfamiliar with electronic research. The position was eventually offered to Riggleman, a woman who was 34 years old and familiar with the software that had been purchased a month earlier by the university.
Under the university’s policies, the hiring team is required to identify in writing why each candidate was not selected and to specify the greater experience that the successful candidate had as compared to each of the other candidates. George’s form was the only one that failed to compare his credentials to that of the successful candidate.
Lesson #6: Don’t violate your own policies and procedures when making employment decisions.
Does your company have a procedures manual for Human Resources that contains a step-by-step hiring process? If so, you better follow it to a tee, because failing to do so is evidence of pretext. Personally, I try to discourage clients from having such creatures as they always come back to bite.
As it turns out, Riggleman met with Hripko and the chair of the search committee in Utah, before the hiring process ever began. Then, when the job was finally posted, Riggleman applied within 24 hours.
Lesson #7: If you already have a candidate for an opening that you want to hire and you don’t have any internal policies that require posting the position, then don’t go through a farce posting and interview process with other qualified candidates.
It just looks very pretextual. If you do have a policy/procedure that requires it, well, see lesson number six above.
On Aug. 9, 2017, 19 months after the charge was filed, the EEOC issued its notice of right to sue. George filed his second lawsuit on Nov. 6, 2017. Three days later, the university posted a vacancy for a Lecturer. You guessed it. George applied for the position on Nov. 15. The search was immediately terminated without the position being filled.
Apparently, there was conflicting testimony concerning whether the position remained open or not and the reasons why the search terminated. Most of the explanations had something to do with someone who had previously held the position was applying again, there might be a legal issue, they were consulting with counsel, blah blah blah.
Lesson #8: Sorry, but I can’t do another one.
Significantly, the rejection for this position was never actually included in an EEOC charge. While the university could have argued failure to exhaust administrative remedies, for some reason it agreed to waive this procedural requirement.
I don’t think it's necessary to provide all the details of the majority’s 30-page decision given the issues I spotted for you above. Suffice it to say that the appellate court ruled that the district court erred when it dismissed the second lawsuit. I wonder, if on remand, the parties will settle the case and if reinstatement will be part of the deal?
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