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In interviewing applicants for a supervisory position have you ever dealt with an employee who felt he was entitled to promotion simply based on his years of experience, without going through the same process as the other candidates for the job? If not, meet George Martinez, the classic example of such an employee, who believed, despite his incomplete application and horrendous interviewing skills, his employer must not have selected him because of his age and race. Read on to find out what the judges thought of Martinez’ case.
How to Flunk a Job Interview
George Martinez, a Hispanic male over the age of forty, sought a position as lead courier for the Operations Office of the National Nuclear Security Administration within the U.S. Department of Energy in Albuquerque, New Mexico. Undoubtedly he believed that he was a shoo-in for the position due to his 24 years of experience working for the Department as a courier. Six other individuals applied for two available positions, with four of those applicants being over the age of forty and three of Hispanic ethnicity. The Department offered the positions to a Anglo-American male under forty and a Hispanic male over forty, and then created a third position for another Anglo-American male under forty. Martinez then sought one of three positions as a traffic management specialist for the Department. Foregoing the interview process, the Department made its decision to select two Anglo-Americans and one Hispanic, all under the age of forty, based upon their applications and supervisory appraisals. Frustrated and disgruntled, Martinez claimed that he was the victim age and national origin discrimination and filed a complaint with the EEOC and ultimately an action in federal district court.
The Department convinced the district court to dismiss Martinez’ claims without a trial because it had legitimate, nondiscriminatory reasons for not promoting him. For the lead courier positions the Department evaluated and ranked each applicant based on four criteria: (1) the application, which included answers to questions regarding the applicant’s knowledge, skills, and abilities; (2) on-the-job performance; (3) leadership ability; and (4) interviews, where the same questions were posed to each applicant.
According to the Department, Martinez performed poorly on both the application and the interview. He not only misdated the application and listed his responses out of order, but his responses were not nearly as thorough in providing details of prior work experience, specific education, training, and courses as compared to the other applications. Perhaps assuming that his employer already knew this information, he failed to answer the questions with any specificity. As if his application wasn’t bad enough, his interview was even worse. The panel of interviewers reported that Martinez appeared nervous, slumped in his chair, gave very brief responses to the questions, demonstrated a lack of leadership skills, and, at one point in the interview, put his arms behind his head and his feet on the table. Needless to say, the interview panel was unimpressed, felt that Martinez didn’t present himself in a professional manner, and ranked him sixth out of the seven candidates.
For the traffic management positions, Martinez again submitted a sub-standard application that failed to specify his skills and qualifications for the job by giving non-responsive and incomplete answers to the questions. The district court agreed, based on the applications, that the Department had valid reasons for offering the position to other candidates and that Martinez had failed to show that such reasons were false or pretextual.
Undaunted by the apparent overwhelming evidence the Department presented to the trial court concerning its good reasons to promote those candidates that took the application process more seriously, Martinez appealed his case to the Tenth Circuit Court of Appeals. In particular, he argued that he should have been allowed to proceed to trial because he thought that the Department presented an inaccurate depiction of his job interview and that it used unauthorized, impermissible, and subjective scoring in accessing the candidates.
Put Away the Rose-Colored Glasses
The Tenth Circuit agreed with the district court that no trial was necessary. First, the court agreed that there was no real dispute regarding the interview that required a trial. Although Martinez filed a self-serving affidavit stating that he performed well in the interview and did not exhibit the poor body language that the panelists reported, he failed to present any other evidence to support his version of the facts. More importantly, the court stated that Martinez’ perception of his interview was irrelevant because a pretext challenge requires the court to look at the facts as they appeared to the persons making the employment decision, not the employee’s subjective evaluation of his own performance. With regard to the subjectivity of the interview process, the court stated that pretext is typically inferred when the criteria on which the employers ultimately rely are entirely subjective in nature. In other words, subjective factors must play some role in considering individuals for upper level positions and do not constitute discrimination absent other evidence.
The court also compared the Maritnez’ applications for the two supervisory positions to those of the other applicants and found them woefully deficient. The court reasoned that any reasonable juror, after a cursory examination of the applications, would determine that the Department’s reasons for not selecting him were legitimate.
The Good News
All of the above is good news for employers. Despite an employee’s self-confidence that he or she is the best man or woman for the job, employers retain the freedom to determine by what criteria job candidates are selected so long as such criteria are not discriminatory. This may have been a different case and a different outcome had the interviewers asked Martinez about his age and retirement plans or his ability to interact with non-Hispanic employees. However, employers are clearly entitled to set the criteria for the interview process. Employees who feel like they don’t need to jump through the hoops because of their vast work experience will likely end up disappointed. The court stated that the disparity in the applicants’ qualifications must be “overwhelming” to create an inference that the more qualified applicant was not selected for discriminatory reasons. Martinez v. U.S. Dep’t of Energy, 2006 WL 270230 (10th Cir., Feb. 6, 2006).