Discrimination Was Not Shown by Stray References to Age

Global HR

A 56-year-old applicant for the head baseball coach position at Indiana University South Bend (IUSB) failed to show that he was not selected because of his age, despite interviewers’ references to “retirement job” and selecting a “younger guy,” the 7th U.S. Circuit Court of Appeals ruled.

In 2017, IUSB listed a job posting for a head baseball coach. The posting indicated that the primary duties and responsibilities for the position were overseeing recruiting efforts; enhancing academic success of student athletes; providing coaching, management and strategic planning; organizing and scheduling team practices; and overseeing and maintaining the program budget. There was also an annual fundraising expectation.

IUSB formed an eight-person hiring committee, which received 94 applications for the coaching position. The committee reviewed all applications and selected 11 candidates for phone interviews. The plaintiff was one of the 11 candidates selected for a phone interview. Another candidate selected was 31 years old at the time and was a friend and former collegiate teammate of one of the committee members.

Four members of the hiring committee interviewed the plaintiff by phone and were unimpressed by him. One of the interviewers specifically noted that it was one of the worst interviews he had ever experienced. Conversely, the 31-year-old applicant impressed members of the hiring committee during his phone interview.

The committee met to discuss the results of the 11 phone interviews, and the members unanimously agreed that the plaintiff would not be extended an in-person interview. Instead, the committee extended in-person interviews to five other candidates, including the 31-year-old applicant. After conducting the in-person interviews, the hiring committee unanimously agreed to recommend the 31-year-old applicant to the head of the committee, who made the final decision to hire him.

The plaintiff sued IUSB, the head of the hiring committee and another hiring committee member for age discrimination under the Age Discrimination in Employment Act and 42 U.S.C. §1983.

The evidence showed that, during the hiring process, one hiring committee member told his barber about IUSB’s search for a new head baseball coach. On one occasion, he relayed that he was excited about hiring the applicant because he was a “younger guy and would be a better fit for the kids” but did not specify his exact age. The barber believed that the committee member liked the applicant because the committee member knew him and coached with him.

In addition, during the phone interview stage, a committee member took notes on each candidate he interviewed. One of his comments next to the plaintiff’s name read: “Looking for a retirement job.” The plaintiff believed that this note showed that the committee was conscious of his age.

The defendants moved for summary judgment on the claims, which the district court granted.

On appeal, the plaintiff argued to the 7th Circuit that the district court had impermissibly weighed his two pieces of evidence of age-based animus. In considering the first piece of evidence, the 7th Circuit determined that the district court correctly concluded that committee member’s comment to his barber that they had hired the “younger guy” was merely a description of the candidate, and could not reasonably be construed as a description of the reason he was hired. As such, it was at best a stray remark of someone who was not the sole decision-maker.

The court then considered the second piece of evidence of age discrimination and found that the plaintiff’s interpretation of one member’s interview notes was speculative. The hiring committee members all stated under oath that they did not use age as a factor in the hiring decision. There was not any evidence showing that the committee member shared his notes with other members of the hiring committee. In addition, the member had other interview notes concerning the plaintiff’s lack of any plan to deal with professors or to develop the students, which showed that the plaintiff had performed poorly during the interview.

The 7th Circuit upheld the district court’s dismissal of the claims at summary judgment.

Reinebold v. Bruce, 7th Cir., No. 21-1092 (Nov. 18, 2021).

Professional Pointer: Employers should take care to avoid any references by interviewers or evaluators of job candidates to protected characteristics. Nevertheless, offhand remarks and mere identifying references generally will not establish discrimination.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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