?Takeaway: A company has considerable freedom in deciding how to select candidates for promotion.
?Even when an employer uses a young group of interviewers and primarily relies upon interview scores to determine promotions, a disappointed older worker may not be able to establish that discrimination occurred, a recent federal appeals court decision shows.
The plaintiff began working for McDonnell Douglas in 1985. He kept working there several decades after it merged with The Boeing Co. in 1997. In 2017 and 2018, the plaintiff unsuccessfully applied for promotions within Boeing. Both times, the promotion was given to younger candidates who scored better in the interview. The plaintiff retired from Boeing on Jan. 1, 2020.
In 2017, the plaintiff was 62 years old and applied for a promotion to a more senior management-level position. The preferred qualifications for the position included a master’s degree and significant work experience. The plaintiff did not have a master’s degree and did not submit a resume for the position. An interview panelist asked him about the missing resume, and the plaintiff wrote back saying he had worked at Boeing for over 30 years, and thus his resume would not say more than his work history already had.
Five applicants, including the plaintiff, were selected for interviews for the position. The plaintiff did not prepare answers to the expected interview questions. The ages of the members of the interview panel for the position were 53, 55, 56 and 57 years old. The plaintiff scored the lowest out of the five interviewees.
The employee who received the promotion was 33 and received the highest interview score. The panel’s assessment stated the plaintiff gave poor responses and seemed arrogant and entitled, and they believed he was a less capable leader than the selectee.
In 2018, the plaintiff applied for a similar opening with identical requirements and preferred qualifications. The plaintiff was interviewed again. This time, the panel members were 30, 36 and 37 years old. The opening was filled in the interim by a 34-year-old applicant who had a master’s degree.
The plaintiff did not score well on the interview, receiving a consensus score of 17.5 out of a maximum of 35. The applicant who filled the job in the interim substantially outperformed him with a consensus score of 25.5. The only other candidate who interviewed received a consensus score of 21. The panel said the interim applicant’s interview demonstrated stronger leadership skills, more detailed and nuanced answers, and a superior communication style compared with the other candidates. He outperformed the plaintiff on six of seven factors and tied with him on the seventh.
The hiring manager chose to promote the interim applicant to the position permanently. He did not give a reason for his choice but checked a box that indicated no other factors were considered besides the structured interview.
The plaintiff sued Boeing in Missouri state court for age discrimination based on its promotion of the younger candidate in 2018 and claimed that he was forced to quit. The lawsuit was removed to federal court. Boeing moved for summary judgment on the claims, which was granted. The plaintiff appealed to the 8th U.S. Circuit Court of Appeals.
On appeal, the plaintiff argued that Boeing did not follow its own enterprise staffing handbook in considering just the interviews for the 2018 promotion. The handbook implied that more than just an interview should be considered in making hiring decisions.
However, the 8th Circuit noted that Boeing provided an express instruction to hiring managers that they are only encouraged to consider factors beyond the interview. In addition, Boeing’s standardized interview booklet provided a checkbox option for relying solely on the structured interview.
In addition, the plaintiff argued that the applicant selected in 2018 had also applied for the 2017 promotion and only scored a nine on a pre-interview worksheet based on his 2017 resume. The plaintiff scored a 13 on the same pre-interview worksheet.
However, the 8th Circuit found that the range was not so distant as to show that the selectee was objectively less qualified a year later, in 2018. Moreover, the selectee had a master’s degree, which the plaintiff did not have.
While the plaintiff tried to argue that the composition of the 2018 interview panel and the complete reliance on interview scores showed discrimination and pretext, the 8th Circuit disagreed. It thus upheld the dismissal of the plaintiff’s claims.
Bonomo v. Boeing Co., 8th Cir., Nos. 22-1523 and 22-1531 (March 29, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
