Proving discrimination is never easy. Discrimination requires proof of intent. The plaintiff must prove or show what some manager was thinking. In Thompson v. Zinke, 795 Fed. Appdx. 294 (5th Cir. 2/27/2020), the plaintiff alleged he was discriminated against when he was passed over for promotion. Mr. Thompson noted that a white applicant with less seniority was chosen over him. Plaintiff Thompson had 32 years experience with the Bureau of Safety and Environmental Enforcement. The hiring agency was the Commingling and Measurement Approval Unit, a sub-agency within the BSEE. The opinion does not identify the race of Mr. Thompson, but he is apparently not Caucasian. The appellate court noted, however, that the plaintiff had no pipeline experience. While, the white female engineer technician actually chosen, had eight years experience in the “Pipeline Section.” The white engineer also had experience using a particular software system, which Thompson lacked.
The lower court granted the Bureau’s motion for summary judgment. The appellate court noted that Thompson had some pipeline experience, but it was less relevant. His pipeline experience was offshore, said the court, and it, was less relevant to a position that required more data management. The court does not explain why pipeline experience is important in one context, but not in another. The white engineer’s pipeline experience mattered until it did not.
Too, the extent to which pipeline experience mattered or not ought to be decided by a jury. Simply based on the court decision, it seems there were important questions of fact that are not appropriate for summary judgment. See the decision here. But, this decision reminds us that non-promotion cases are very difficult. There are many possible non-discriminatory justifications for a particular selection.