The Sophisticated Employer Blog

Sometimes I finish reading an opinion and wonder how on earth did the employer pull out the win.

Was it great lawyering by defense counsel or poor lawyering by the plaintiff’s attorney? Perhaps it was just the right panel at the Michigan Court of Appeals, or the stars lined up right in the galaxy.

Wiegert v Blue Cross Blue Shield of Michigan, is such a case brought in Wayne County Circuit Court under the Michigan Persons with Disabilities Civil Rights Act, and ultimately appealed to the Michigan Court of Appeals

Apparently, plaintiff Wiegert interviewed for a position in Blue Cross Blue Shield’s (BCBS)  Human Performance Department. I don’t know if that is just the latest term for human resources, but his interview didn’t go well. 

There were two individuals who conducted the interview, Valarie Keesee and Steven Weingarden. Midway through the interview, the plaintiff realized it was not going well, so he told them that he had a military related disability that caused him to “have a flat affect and lack of outward emotion, but he wanted them to know he was happy to be there.” They handled that well saying, “okay” and continuing with the interview.

The plaintiff received the lowest scores of the three candidates that were interviewed by both Keesee and Weingarden. Keesee had the final say, and the plaintiff was not selected.

A few weeks later, plaintiff was offered feedback on his interview by Weingarden. Does anyone think that this was a good idea? Me neither.

According to the plaintiff, Weingarden stated as follows:

[H]e was “an emotionless, monotone, like battle-scarred, shell-shocked veteran”; that Weingarden “had to work with someone just like [plaintiff] in grad school” and it “wasn’t good”; “You know, it’s part of being in the military, and it happens”; and, “There’s no way that you’re going to be able to ever work like in the applied world, which includes every corporation, every consulting firm, every job possibility … [s]o your best bet would just be to go to some no-name college in the middle of nowhere and just rot for the rest of your life.” 

Wow. 

Whether Weingarden actually said this or the plaintiff misinterpreted what was said doesn’t really matter for purposes of a defendant’s motion for summary disposition. Generally, the court is required to construe the facts in the most favorable light for the non-moving party (plaintiff), so after reading this I thought BCBS is toast.

The plaintiff argued that this was “direct evidence” of discrimination. “Direct evidence of discrimination is ‘evidence that proves impermissible discriminatory bias without additional inference or presumption.’ … [One of] the ‘hallmarks’ of a case involving direct evidence of discrimination as a motivating factor for an adverse employment action [is] ‘a statement made by a decision-maker, to the plaintiff, at the meeting in which the plaintiff suffered the adverse employment decision, and evincing a causal nexus.’”

Okay, so I still thought…game over. Maybe the statements were not made at the interview, but if it was said just a few weeks later, it still seemed pretty damaging. 

But, not so fast. The statement was made by Weingarden, not Keesee, who had the final say on the decision. The appellate court explained:

To conclude that Weingarden’s alleged discriminatory animus was a motivating factor to not hire plaintiff, a factfinder would have to assume (1) that Weingarden held this bias weeks before, (2) that Weingarden informed Keesee of his bias before Keesee made her decision, and, most significantly, (3) that Weingarden’s bias affected Keesee’s hiring decision.

“Plaintiff does not contest that, if there was no direct evidence of discrimination, the trial court’s decision was proper…”

Was that the only way his claim was pleaded? What about indirect evidence? What about the cat’s paw theory (that the person with the bias influenced the decision maker)?

The court upheld the dismissal. Confession, my jaw dropped when I reached the end of the story. I didn’t see this coming after reading Weingarden’s alleged statement.

Sometimes the stars do align properly.