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Swanson v. Epic Systems Corp.

United States District Court, W.D. Wisconsin

December 11, 2017



          BARBARA B. CRABB, District Judge

         Plaintiff Scott Swanson contends that defendant Epic Systems Corporation failed to hire him as a trainer because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-24. Now before the court is defendant's motion for summary judgment on plaintiff's claim, in which it argues that plaintiff was not hired because of his spotty job history and poor test scores. Dkt. #15. Because I conclude that plaintiff has failed to show that defendant discrimnated against him when it failed to hired him as a trainer, I am granting defendant's motion for summary judgment. The undisputed facts would not permit a rational factfinder to conclude that plaintiff's age was the reason, or the “but-for” cause, of his termination. Accordingly, defendant is entitled to judgment as a matter of law.

         From the parties' proposed findings of fact, I find that the following facts are undisputed, except as otherwise noted.


         A. The Parties and Key Players

         In October 2014, when plaintiff Scott Swanson was more than 40 years old, he applied for a job as a trainer with defendant Epic Systems Corporation, a corporation based in Verona, Wisconsin. During the relevant time period, Carl Dvorak, Allison Stroud and Tanya Bui all worked for defendant: Dvorak was the president, Stroud was the recruiting director and Bui was a hiring manager.

         B. Defendant's General Hiring Practices

         In 2014, defendant received approximately 190, 000 inquiries for the position of trainer, and approximately one to two percent of those individuals were hired. Because defendant receives thousands of job inquiries per year, it has several different hiring managers, who make hiring decisions, and several different recruiters, not all of whom are authorized to make hiring decisions. There is not one decision maker who is responsible for making all of the hiring decisions for the trainer positions Defendant trains its recruiters to use its “recruiter training manual, ” which includes various hiring and recruiting policies, processes and hiring criteria. As the first step in the hiring process, a recruiter works with the leaders in the department with a vacancy to draft a position description and then posts the description online. Applicants fill out an initial application and post a résumé online through defendant's website. Defendant reviews applicants' résumés as they come in. Defendant does not ask for job applicants' ages directly during the application process.

         Relying on the information in the application and résumé, defendant decides whether to move forward with a candidate, request more information from the candidate or reject the candidate. If defendant determines that an applicant can move forward, it conducts a telephone interview with the applicant. After a successful phone interview, a candidate usually takes assessment tests, the topics of which vary from job to job.

         If all goes well, the candidate is invited to defendant's “campus” for a final interview. The on-campus interview includes an overview of the corporation, a demonstration of the software, a meeting with someone in the trainer position, an in-person interview with a trainer, a training panel presentation, lunch with other candidates, a tour of defendant's campus and a final meeting with the recruiter. The training panel presentation provides defendant an opportunity to assess a candidate's skills, such as style and teaching abilities. After the on-campus interview, the information from the candidate's application is compiled in a “face sheet, ” which contains a summary of information, including educational background, test scores, interview feedback and result of reference checks.

         The hiring manager and a recruiter participate in a hiring decision meeting, during which the hiring manager has the authority to decide whether to extend an offer to a particular candidate or candidates. Defendant's recruiter training manual includes sample scripts that instruct recruiters on how to provide salary information to a candidate when extending an offer. (The parties dispute whether an offer is complete and can be extended in the absence of a salary determination.) The manual does not state that a job offer is not complete until it contains a salary. In certain circumstances, the hiring manager and recruiter will have salary information completed in the hiring decisions meeting, and the recruiter then has the authority to extend the job offer. Under defendant's hiring process, job offers should not be extended or communicated to applicants until a final hiring decision has been made.

         As the sole recruiting director, Stroud has the authority to make final hiring decisions because she can decide whether to confirm or override the hiring manager's decision to hire a candidate. Dvorak attends weekly meetings with various hiring managers and recruiters during which he provides an opinion on candidates who are presented to him as “close calls” or helps set their salaries if the recruiter wants to offer a salary above the minimum.

         1. Consideration of work history and education

         When making hiring decisions, defendant considers the likelihood that a candidate will be a reliable employee and will make a commitment to the company. Because defendant makes a significant investment in time and money in new employees and trains them to become subject matter experts in its software, it wants to hire employees who are likely to remain with the company for the long term. When evaluating a candidate's likelihood of being a reliable employee who will make a commitment to the company, defendant considers the candidate's educational and professional background.

         Defendant's recruiter training manual states that recruiters should “be cautious” of individuals with “job-hopping.” In the section of the manual addressing work history, defendant specifically directs recruiters to consider and evaluate an applicant's experience, growth, gaps in employment and job switching. The manual warns recruiters to be wary of job switching or “job hopping” because:

There is a noticeable pattern when people leave jobs they have been at for several years. Often they have a period of job-hopping while they experiment with their next career and find the best fit. Candidates don't usually intend to job switch, but it happens as a result of new environments and culture shock. Be cautious if a job with defendant might fit that pattern of experimentation.
If someone has been promoted very recently and is looking to make a job change, this may indicate the person is struggling in that new role. Be cautious of people who are looking to leave a new job after a short period of time. This may also indicate a struggle with their current responsibilities or a lack of follow-through.

Dkt. #19-1 at 20.

         The recruiter training manual also states that a candidate's education is “relevant for recent graduates, but also for people who have been in the workforce for some time” and that “[a] high GPA is an indicator of intelligence and/or hard work, and both are important qualities. Look for a high cumulative GPA (preferably 3.4 or above, and definitely above 3.2) from a good school.” Dkt. #19-1 at 18.

         2. Specific qualifications for application trainer position

         Defendant employs a number of different types of trainers. “Application” trainers work with defendant's customers' project staff (as opposed to end users of the software) and train them on the underpinnings of defendant's software, the complexities of configuring it and doing so safely. The position is considered to be entry-level but important. Failure to understand the complexities of defendant's software can affect patient safety, the product's reliability or the customer's success. The job posting for the trainer position states “[n]o technical or software background required.” Dkt. #19, exh. 2.

         Defendant's recruiter training manual includes specific hiring criteria and “multifactor metrics” for the different trainer positions and discusses the evaluation of assessment scores in particular. Defendant also considers whether the candidate has a bachelor's degree with a minimum grade point average of 3.2, has strong communication skills, meets all assessment requirements, passes the training panel, has a history of academic and professional success and is legally authorized to work in the United States. Because trainers are responsible for providing instruction on the use of defendant's software to its customers and employees, they must be skilled presenters, capable of building rapport with trainees and imparting substantial information about complex subject matters in a relatively short period of time.

         Although defendant prefers to hire applicants who meet the criteria listed in its manual, it is willing to allow hiring managers to make exceptions for candidates who meet one of the criteria but do not quite “hit the mark” on all of them. For example, defendant may consider an applicant who scores 50 percent or higher in math in less than 40 minutes (rather than 30 minutes), if the candidate is strong in all other areas. However, there are no written examples of what exceptions are allowed, and defendant's manual states that “[i]f a candidate has multiple minimum requirements, we should strongly consider not hiring.” Dkt. #19-1 at 23.

         According to Stroud (the recruiting director), a candidate's grade point average and performance on the assessment tests (such as 20 questions, math and verbal) are the most important criteria for filling the trainer position. Generally she weighs the math scores and 20 questions scores more heavily than verbal test scores because most applicants for trainer positions receive higher scores on the verbal test. A candidate's ...

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