Seyfarth Synopsis: Michigan college loses motion for summary judgment in former instructor’s age discrimination claims because the college provided “shifting justifications” over time for its decision not to interview instructor for a tenure-track position.

On May 5, 2023, U.S. District Judge for the Eastern District of Michigan George Caram Steeh denied Delta College’s motion for summary judgment in Bardoszek v. Delta College, 1:21-cv-11923, stating that the school “changed its story” about why 68-year-old instructor, Edward Bartoszek, was not interviewed for a tenure-track position.

Bardoszek was an adjunct professor at Delta College where he taught classes in the Dental Hygiene Department and nursing program, and also taught several biology courses. In 2019, he applied to an opening for a full-time, tenure track biology instructor at the college. The college selected a thirty-eight year old candidate, whom Bardoszek believed to be less qualified. Bardoszek asked why he was not considered for the position, and according to Judge Steeh’s opinion, the college initially did not provide him with any reason.

After losing out on the job opportunity, Bartoszek filed a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). In its position statement, Delta College denied that age was a factor in its decision. It claimed Bartoszek lacked the proper educational qualifications and relevant work experience. More specifically, Delta College noted that the chosen candidate had a master’s degree in biology, which was a requirement for the position, and that Bardoszek’s doctorate in dentistry did not meet that requirement. The college also claimed Bartoszek’s teaching experience was “limited to working as an adjunct at Delta College in the Dental Hygiene Program.”

According to Judge Steeh’s opinion, Delta College then changed its story, arguing in its motion for summary judgment that Bartoszek’s doctorate in dentistry did meet the educational requirements for the job. The college also acknowledged that Bartoszek taught several biology classes “performing the same job for which he was applying.” However, in the litigation, the college instead focused on the deficiencies in Bartoszek’s application, such as his failure to submit transcripts, and that his cover letter and application were deficient because they did not clearly address his teaching experience and focused on his private sector accomplishments.

In denying Delta College’s motion, the Court stated “Defendant’s litany of discredited reasons casts doubt on its claim that other candidates simply ranked higher than Plaintiff based on their applications.” Quoting the Sixth Circuit, the Court noted “shifting justifications over time calls the credibility of those justifications into question.” Cicero v. Borg-Warner Auto. Inc., 280 F.3d 579, 592 (6th Cir. 2002). Because of the college’s contrary responses between its position statement and summary judgment motion, Bartoszek “sufficiently cast doubt” on Delta College’s reasons for failing to hire him, warranting a denial of the college’s summary judgment motion.

Impact on Employers

This case provides a cautionary tale, warning employers to thoroughly investigate a claim at the administrative level, and provide consistent answers throughout litigation. An employer can be held accountable and lose at summary judgment for stating one set of facts to an administrative agency and a different set of facts to a court after going through discovery. This is true even if no other evidence of discriminatory animus is present in the underlying facts.

Further, if a similar case proceeds to trial, some courts may allow the plaintiff to introduce the employer’s EEOC position statement into evidence because the shifting justifications may (under certain circumstances) provide an opportunity to impeach the decisionmaker. As a best practice, thoroughly investigating claims as soon as they are charged at the administrative level and then accurately articulating the reasons for the employment decisions, can minimize the risk of backpedaling on the facts later on in litigation.