• A Poor Interview is Not an Irrational Basis for an Employment Decision
  • November 22, 2017 | Author: Theresa Powell
  • Law Firm: Heyl, Royster, Voelker & Allen Professional Corporation - Springfield Office
  • The Seventh Circuit recently affirmed the granting of summary judgment in favor of the City of Peoria in Nicholson v. City of Peoria, Illinois, 860 F.3d 520 (7th Cir. 2017). Plaintiff Nicholson claimed that the City discriminated against her because she was female and/or acted out of retaliation for reporting misconduct of another employee when it failed to reappoint her to the position of Asset Forfeiture investigator, a position within the Peoria Police Department. Nicholson was required to apply and interview for this position, one she had held for years, due to a 2011 Order by the Chief of Police which created a Rotation Policy for certain positions, including Nicholson’s. Under the Rotation Policy, persons assigned to the effected positions could be moved every three years to other positions if not reappointed pursuant to the Department’s hiring procedures. The City asserted that Nicholson was not reappointed to her position because she did not interview well.

    The court notes that the interviewing panel described Nicholson as interviewing poorly and described her as angry and controlling. She began her interview by refusing to answer questions and insisted on reading a nine-page document. The court characterized Nicholson’s behavior as highly unusual. Nicholson, 860 F.3d at 522.

    In applying the elements of the claims brought, the court outlined that Nicholson had the burden of establishing that she was not reappointed because of her sex, in violation of Title VII, as to the discrimination claim. As to her retaliation claim, Nicholson had the burden of establishing sufficient evidence “for a reasonable jury to conclude that (1) she engaged in a statutorily protected activity; (2) [defendants] took a materially adverse action against her; and (3) there existed a but-for causal connection between the two.” Id. at 523 citing Burton v. Board of Regents of the University of Wisconsin System, 851 F.3d 690, 695 (7th Cir. 2017).

    In support of her claim, Nicholson argued that she was not reappointed because of her sex. The court found that there was insufficient evidence to dispute the defendants’ position that Nicholson was not hired due to interview performance of the candidates. Nicholson had no admissible evidence to support the position that this was a pretext. In fact, the court noted the lack of evidence to suggest that the Rotation Policy targeted females as more than 20 male employees were also reassigned after not being retained in their specialty positions. Nicholson presented insufficient evidence to defeat summary judgment as to the sex discrimination claim.

    Similarly, the court held that Nicholson presented insufficient evidence to defeat summary judgment as to the retaliation claim. The court noted that Nicholson’s reliance on her reports of discrimination against the Department relating to another officer in September of 2011 was not sufficient. Nicholson complained that the City should not be paying to defend the claims she had brought against this officer. (The fees in question were noted to be an obligation of a union agreement). The decision not to reappoint occurred in October of 2012. The court held that the time gap “substantially weaken(ed)” Nicholson’s claim.

    The court reiterated its position that the courts should not intervene in such personnel disputes absent a finding that the employer’s alleged adverse action has no factual basis or is “completely unreasonable.” Nicholson, 860 F.3d at 524 (quoting Hobgood v. Illinois Gaming Board, 731 F.3d 635, 646 (7th Cir. 2013). The court ultimately held that reliance upon an interview of applicants is not “irrational.” Nicholson, 860 F.3d at 525.

    This case points out the importance of making and maintaining good notes during the hiring process. Here the evidence concerning the reasons for not hiring the plaintiff appear to have been consistent and well-documented. Such evidence provides the factual support for the court to conclude that the employment decision at issue was not pretext. Also, note that timing between adverse decisions and alleged whistle-blowing efforts remains as a significant consideration in such claims.