Massachusetts Employment Law Letter

What are you going to do? Choosing between the two . . .

You have a job opening at your facility, and have narrowed the selection to two qualified candidates, but which one should get the job?  Common sense dictates that you chose the more qualified candidate, right?  Unfortunately, candidates who are not selected often sue employers for discrimination because they believe that their protected characteristic was the real reason behind the negative outcome.  The result?  Because everyone is a member of a protected class, employers are exposed to liability each time they are required to choose between two candidates.  Read on to learn good news from the Massachusetts Appeals Court that can help employers defend such claims. 

Oops, we goofed!

In 1998, the Massachusetts Trial Court advertised two head administrative assistant (“HAA”) positions in a Plymouth court.  The positions were awarded to Juanita Gomes and Carole Zaniboni.  Later, a third candidate, Laurie Devitt, a long-term court employee, filed a grievance claiming the hiring process was flawed.  Concerned that the interviews were not conducted properly, the Trial Court offered to re-interview these three candidates.  The hiring panel consisted of the first Assistant Registrar at the Plymouth court and two individuals not connected to the court.  Following the interviews, Devitt and Gomes were offered the HAA positions, and Zaniboni was demoted.  But by the time the court reversed its original decision, Zaniboni had already served as an HAA for two years.

“I’m qualified!  You have to hire me!”

Zaniboni ultimately filed a lawsuit against the Trial Court, alleging age-based discrimination, in violation of Mass. Gen. Law ch. 151B.  She alleged that the Trial Court illegally discriminated against her when it rescinded her selection as HAA.  Zaniboni argued that she was not chosen as the successful candidate over Devitt because of her age, despite her qualifications.  The jury entered a verdict in Zaniboni’s favor on the HAA claim and awarded her monetary damages.  In other words, the jury agreed that the Trial Court engaged in age-based discrimination when it demoted Zaniboni.

The Trial Court filed a motion asking the judge to rule in its favor and overturn the jury’s verdict, or in the alternative, grant a new trial.  The judge allowed the motion for a new trial.  Both parties appealed.

Well, she was qualified . . .

The Appeals Court disagreed with the judge.  It concluded that, notwithstanding the jury’s verdict, Zaniboni had not presented enough evidence to prove age-based discrimination.  In order to prevail in an age-based discrimination claim, an employee must show that (1) she was over forty years old; (2) she was qualified for the job; (3) she was not hired for the job despite her qualifications; (4) a person with similar or inferior qualifications was hired; and (5) the person hired was at least five years younger than she.

Once an employee establishes this prima facie case of discrimination, the employer must then articulate a lawful reason for its employment decision.  After the employer articulates a reason, the employee must then show that the reason was a pretext, and that the decision was really motivated by age-based discrimination.

But someone is more qualified than you!

The court agreed that Zaniboni did get over her first hurdle because she was over forty and had not been hired, despite her qualifications.  However, the court also agreed that the employer had sufficiently articulated a reason for its decision:  The Trial Court claimed that Devitt was “a far superior candidate” than Zaniboni.  Even though she was younger, Devitt had worked in the Plymouth court system longer than Zaniboni and had established a higher seniority level.  Further, Devitt had worked in a number of different departments, while Zaniboni had only worked in one department during her tenure.  Finally, while both had supervisory experience, Devitt had managed a greater number of employees.  The court concluded that it was reasonable for the Trial Court to choose the candidate with more seniority and experience.

And now the ball is in your court

The Appeals Court then held that Zaniboni had not presented sufficient evidence to refute the Trial Court’s explanation for its decision.  In support of her claim, Zaniboni argued that there was an “atmosphere of age discrimination” at the Plymouth court that could have tainted the interviewing process.  She only offered, however, anecdotal evidence that the Trial Court had a “general practice” of only promoting younger employees.  While she offered witness testimony, she never submitted any data to substantiate her claim.  On the other hand, the fact that there was a collective bargaining agreement that favored promoting the employee with more seniority, and the fact that two members of the hiring panel were not even affiliated with the Plymouth court, supported the employer’s position that age-based discrimination was not a factor in its decision.

Bottom line:  Unfair is not necessarily discrimination

This decision provides Massachusetts employers with some relief because it shows that a lawsuit will not succeed without some evidence of discrimination other than anecdotes and subjective beliefs.  In this case, the court recognized that Zaniboni may have felt victimized and unfairly treated as a result of the lengthy grievance and interview process that, ultimately, resulted in her termination.  However, while the court empathized with those feelings, and even appeared to criticize the employer’s delay, it reiterated that, ultimately, it is the employee’s burden to establish the presence of discrimination.  As she did not, she was not entitled to any relief.  Zaniboni v. Massachusetts Trial Court (Mass. App. Ct. 2012).

Take away?

There is no doubt that the concept of “employment-at-will” is eroding.  This case demonstrates the importance of ensuring that you develop thorough job descriptions that clearly define desired employee qualifications.  Further, your selection procedures should be reviewed to ensure consistency and uniformity.  Make sure you can justify — and document — why you chose someone over the other candidate.  Here, the employer was able to prevail because it demonstrated that the selected candidate was, in fact, more qualified.  The outcome might have been different if it turned out that Zaniboni had the same or better qualifications as the successful candidate.  The harder cases are those where you select an employee based on “fit” or personality, notwithstanding their lower qualifications.  As always, be sure to consult with your employment counsel if you are unsure how to proceed.  An ounce of prevention can avoid pounds of headaches in the future.

Article By: Jasmin M. Rojas, Esq.
Reprinted from the July 2012 issue of the Massachusetts Employment Law Letter.

Jasmin Rojas is an Associate at the firm of Skoler, Abbott & Presser, P.C.  Jasmin can be reached at (413) 737-4753 or