By Gary J. Chester
Employment discrimination claims tend to be difficult cases. The standard of proof is high and there is rarely “smoking gun” evidence to support the plaintiff’s assertions. And if the employer can prove any legitimate reason for its action, the claim is subject to dismissal.
Nepotism is a lawful basis for an employer’s job action. It is as prevalent in sports as in any industry, perhaps more so. That is one of the takeaways from Reinebold v. Indiana University at South Bend, 2020 U.S. Dist. LEXIS 240127 (N.D. Ind. 2020), where a spurned coaching candidate sought to recover for alleged age discrimination.
THE FACTS
In 2017, Indiana University at South Bend (IUSB) began searching for a full-time baseball coach. Athletic director Steve Bruce and assistant AD Tom Norris formed a hiring committee that received 92 applications. The committee interviewed 11 candidates by phone, including the plaintiff Joel Reinbold, a 56-year-old high school baseball coach with decades of coaching experience.
Four of the six members of the hiring committee stated that the phone interview with Reinbold did not go well. The committee unanimously agreed that Reinbold should not be invited to the IUSB campus for an in-person interview. There was no evidence that the subject of Reinbold’s age came up in the committee’s discussion.
Five candidates were invited to the campus for in-person interviews. The committee unanimously recommended Doug Buysse for the job. A friend of AD Norris, Buysse was 31 years old and only had a few years of coaching experience. The university followed the committee’s recommendation and hired Buysse.
Reinbold sued IUSB, Bruce and Norris under the Age Discrimination in Employment Act and 42 U.S.C. § 1983. The court dismissed all claims (with plaintiff’s concession) except a § 1983 individual capacity claim against Bruce and Norris. The defendants brought a motion for summary judgment on the basis that Reinbold could not prove as a matter of law that they treated him differently because of his age.
The plaintiff contended that the committee improperly considered his age at the phone interview stage, pointing to one member’s note that Reinbold was “looking for a retirement job.” Reinbold also asserted that the hiring committee’s description of Buysse as “moldable” presupposes age was a factor in the university’s hiring.
Finally, the plaintiff also relied on testimony from Mr. Norris’ barber (yes, a barber was identified as a key witness). The barber stated that Norris described Buysse as “young,” though Norris never said it was the reason he was hired. The barber believed IUSB hired Buysse because he was friends with Norris.
THE RULING
The court granted the defendants’ motion for summary judgment and dismissed the case. The court noted that 42 U.S.C. § 1983 provides a civil remedy for constitutional violations, including age discrimination, under the equal protection clause of the Fourteenth Amendment. To prevail, the plaintiff needed to prove that the defendants (1) treated him differently from others similarly situated, (2) intentionally treated him differently because of his age, and (3) that the difference in treatment was not rationally related to a legitimate state interest.
Reinbold was unable to establish any material issues of fact tending to prove these requirements. In the first phase of the process, both Reinbold and Buysse were treated the same. IUSB considered their qualifications and granted each a phone interview, then discussed their performances before deciding whether to interview them on-campus. In phase two of the hiring process, the plaintiff failed to demonstrate that he and Buysse were similarly situated (and therefore, worthy of an in-person interview). The proofs were that the committee was impressed with Buysse because he had thoroughly researched the IUSB baseball program.
In contrast, the committee was unimpressed with Reinbold. One member of the hiring committee described the interview with Reinbold as the worst interview in his history of interviewing candidates. Moreover, Buysse had a personal friend (Norris) on the hiring committee while Reinbold did not. Even the plaintiff conceded that Buysse’s friendship with Norris “played a role in his getting the job.” Thus, it was clear to the court that the two candidates were not similarly situated.
Nor could the plaintiff establish the second requirement, that IUSB intentionally treated him differently because of his age. Reinbold argued that his credentials objectively demonstrated that he was more qualified than Buysse for the head coaching position. (“I’ve been coaching longer than [Buysse] has been alive.”) But the evidence showed that IUSB was looking for qualities other than just wins, such as the ability to recruit, a commitment to student success off the field, and a willingness to follow university policy. The court recognized that IUSB’s “use of subjective criteria in evaluating job interview performance was permissible.”
As to the committee’s note that the plaintiff was looking for a retirement job, there was no evidence that it meant anything other than Reinbold said that either his current job or the IUSB job would be his last position. The court found that any inference that “retirement job” related to his age would be unfair.
Similarly, the court rejected the plaintiff’s assertion that describing Buysse as “moldable” presupposes that age was a factor in his hiring. The court noted that Norris explained the comment as describing Buysse’s willingness to comply with university policy. The court found that no reasonable jury could infer a veiled reference to Reinbold’s age in the observation that Buysse was coachable.
THE TAKEWAY
The U.S. District Court’s decision provides two bits of wisdom. First, not every type of discrimination is actionable; if an employer chooses a friend or relative over other candidates, that sort of nepotism is not protected by the U.S. Constitution or by federal statute. Nepotism, unlike race, gender, or age, is not a protected class.
Second, and perhaps most important, if you are a potential plaintiff and your case hinges largely on what may or may not have been heard in a barbershop, you might want to reconsider.
