If your excuse for passing over an experienced minority job applicant is the superior communication skills of the relatively inexperienced non-minority applicant you hired instead, make sure she doesn’t clam up at her deposition.
In Hamilton v. Geithner, a case decided yesterday by the D.C. Circuit, the IRS claimed it had selected a white woman instead of the black male plaintiff for the GS-14 position of “Safety Specialist (Safety/Occup[ational] Health Manager)” because the agency’s chosen candidate outperformed the plaintiff in an interview. But the hiring committee failed to document its deliberations, the interviewers’ notes were ambiguous, and one of the committee members failed to keep all of his notes as required by IRS regulations.
Making matters worse, the non-minority applicant had claimed that she “was responsible for setting regional and national policy and program direction,” yet in her deposition she was unable to identify a single safety-related policy she had written. Viewed in combination with Plaintiff’s more extensive education and experience, this was enough, the D.C. Circuit held, to support a reasonable inference that the agency’s stated justification for its hiring decision was a pretext for discrimination.
In reversing the district court’s grant of summary judgment in favor of the IRS, Judge Tatel’s opinion [PDF] relishes the agency’s claim to have selected on the basis of her interview skills an applicant who later “had substantial difficulty responding to deposition questions about safety policies she had written or used as a federal safety professional.”
Were [the successful applicant] to testify at trial as she did in her deposition, a jury might not only find her markedly less qualified than [Plaintiff], but also doubt the strength of her communications skills and her ability to perform well under the pressure of an interview.
The opinion’s analysis of Plaintiff’s discrimination claim concludes that summary judgment was inappropriate, because
when taken together, the evidence of a significant disparity in the candidates’ qualifications, the highly subjective nature of the Secretary’s proffered nondiscriminatory explanation, and the absence of any contemporaneous documentation supporting that explanation could lead a reasonable jury to disbelieve the Secretary and to reach a verdict in [Plaintiff’s] favor.
The D.C. Circuit also remanded Plaintiff’s retaliation claim after overruling the district court’s determination that Plaintiff had not established a prima facie case of retaliation. The IRS had denied Plaintiff “information about a possible detail just two months after [Plaintiff] fil[ed] an EEO complaint and, approximately one month later, [Plaintiff] was ultimately passed over for the detail.” Plaintiff’s protected activity and the alleged retaliation were close enough in time to support a prima facie case of retaliation. The district court erred in measuring temporal proximity from Plaintiff’s first, rather than his most recent, protected activity.