Alaska Employment Law

In an unpublished failure-to-promote race case, the 9th Circuit reversed a directed verdict for the employer after holding that the employee had presented enough evidence to get to a jury on the following bases:

Comparative qualifications:

Gibson need not prove that he would have been promoted “but for” his race - i.e., that he was the ‘clearly superior’ candidate.  The County misreads Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185 (9th Cir. 2003), which held that “the plaintiff’s superior qualifications standing alone [are] enough to prove pretext.”  Id. at 1194. . . .  Raad did not hold that a plaintiff in a failure-to-promote case is required to show that his qualifications are superior.

Decisionmaker’s biased subordinate:

Where a “person who exhibited discriminatory animus influenced or participated in the decisionmaking process, a reasonable factfinder could conclude that the animus affected the employment decision.” . . .  This rule applies even if the person “never communicated his bias” to the ultimate decisionmaker and the ultimate decisionmaker was not herself biased. . . . Moreover, even when the ultimate decisionmaker independently reviewed the candidates’ qualifications, if she relied on the recommendation of a person who has exhibited discriminatory animus, her decision did not “start from a clean slate.”

[Ed.  note: See also a preview of an upcoming law review article on cat’s paw liability, and an earlier discussion of another recent 9th Circuit’s opinion on the theory.]   

Underrepresented minority employees:

[Other evidence of racial animus includes the fact that] the investigation unit had employed no blacks other than Gibson in over twenty years, the DDES had employed no black supervisors for at least two years prior to Gibson’s resignation, and the interview panels assembled by the Fire Marshal contained no racial minorities. See McGinest v. GTE Service Corp., 360 F.3d 1103, 1123 (9th Cir. 2004) (“[T]he absence of black supervisors and managers in the workplace . . . is circumstantial evidence of pretext.”)

Subjective decisionmaking process:

[T]he County’s decisionmaking process was highly subjective.  Although “[t]he use of subjective factors to evaluate applicants for hire or promotion is not illegal per se,” . . .  “subjective practices are particularly susceptible to discriminatory abuse and should be closely scrutinized.” . . .  Here, Warden testified that she believed that the white candidate was more qualified for the promotion because she “felt, based on the interviews that [they] conducted, that [he] had much stronger leadership skills than” Gibson. Gibson’s leadership skills were never formally evaluated, however . . ..

Gibson v.  King County, No. 06-35075 (9th Cir. Nov. 19, 2007)(unpub.)(citations omitted).