Gonzalez v. City of San Antonio, No. 12-50472 (5th Cir. March 12, 2013) (unpublished), is yet another case that shows the weight that the Fifth Circuit is giving to selection processes that are based on graded interviews.  In another case decided just a week ago, the Fifth Circuit rejected race and national origin discrimination claims in a case brought by respiratory therapists of Indian descent.  In that case, the court gave great weight to the fact that the decision to fire the therapists was based on graded interviews that were carefully explained by the employer.

This case involved age discrimination.  The plaintiff (Gonzalez) was 68 years old.  He applied for a job as a parking attendant with the City of San Antonio.  The City hired the three younger applicants (Recendez, Coronado, and Ortiz), the oldest of whom was 35.  The City used a graded interview system to make the selections, with the interviewers assigning subjective scores for different categories.  The Court described this system:

After each of their interviews, the applicants received a rating for certain enumerated job qualifications based on the applicant’s answers to relevant questions. The ratings were given on the following scale, from best to worst: Great Response, Good Response, Average Response, and Poor Response. Both Cruz and Canales gave ratings to Ortiz, Recendez, Coronado, and Gonzalez. Ortiz received “Good Response” ratings from Cruz and Canales in every category but one, and Recendez and Coronado received “Good Response” ratings from Cruz and Canales in all of the categories. In contrast, Gonzalez received “Average Response” ratings from Cruz in all the categories, and received two “Poor Response,” one “Average Response,” and two “Good Response” ratings from Canales.

The court framed the primary issue as whether the plaintiff had presented evidence that he was better qualified than the other applicants.  Even though the plaintiff presented evidence that he had more experience as a parking attendant and that some of his other qualifications were superior, the court was unmoved.  The court focused on the interview system itself:

[The plaintiff's argument] ignores the fact that the City used a rating system based on interview answers as the primary determinant in its hiring process. A comparison of the ratings given by both Cruz and Canales to the applicants demonstrates that Gonzalez’s overall score was lower than the scores of the selected applicants. Based on these results, the City chose to hire Ortiz, Recendez, and Coronado over Gonzalez. Any resulting disagreement over whether Gonzalez should have been hired “merely constitutes a difference of opinion . . . [over] employment decisions that this court will not presume to second guess.”

Likewise, the court brushed aside all of the plaintiff's other arguments, including the fact that the EEOC had made a finding that the City had committed age discrimination.  The Fifth Circuit treated the subjective graded interviews as virtually conclusive.

This is an issue to watch in the future.  The Fifth Circuit did not require the City to exhaustively justify the subjective grades, as was the case in the prior case.  Instead, the Fifth Circuit allowed the City to hire three younger workers over an older applicant who was objectively better qualified, at least in terms of experience.  Will the courts continue to give this much deference to a subjective grading system, and if so, will plaintiffs be required to present direct proof of discrimination in every case involving graded interviews?

David C. Holmes is a Houston employment lawyer with the Law Offices of David C. Holmes