It's a well-established principle in discrimination law that an employer can be done in by "shifting explanations" for actions taken against an applicant or employee. 

A recent decision from a federal court in Michigan illustrates that point about as well as I can imagine.

Dr. Edward Bartoszek, D.D.S., is a doctor of dental surgery. (That "doctor" stuff will be important to remember.) After he had to take early retirement from the practice of dentistry, he became an adjunct instructor at Delta College. He initially taught in the dental hygienist program, but at the request of the college, spent about seven years teaching various biology courses full-time.

In 2019, while Dr. Bartoszek was still teaching biology full-time, the college decided to hire a full-time faculty member to teach . . . exactly what Dr. Bartoszek had been teaching full-time for seven years. Not surprisingly, Dr. Bartoszek applied for the job. He was 68 years old at the time. The college instead hired a 38-year-old who had taught there for two years. The 38-year-old seems to have been qualified. But Dr. Bartoszek was also qualified -- arguably, more qualified -- and felt he had been passed over because of his age. He filed a discrimination charge with the Equal Employment Opportunity Commission.

Here's where it gets interesting.

Explanation No. 1: "He's not qualified!"

The college submitted its statement of position to the EEOC in 2021. I initially assumed that the position statement was drafted by a non-lawyer administrator at the college, but it appears to have been drafted by the college's outside counsel. The position statement said that Dr. Bartoszek was rejected mainly because he was not qualified for the position. He didn't have a bachelor's degree (apparently, he was able to go to dental school after only three years of college, which I think means that he was super smart, not that he was a college dropout). The position statement noted that Delta was looking for someone with a master's degree in biological sciences or a related field and that Dr. Bartoszek had only a master's in health administration. (So, he didn't have a bachelor's degree, but he had a master's and a D.D.S.) Whether a Doctor of Dental Surgery was a "related field" at least equivalent to a master's degree in biological sciences was not addressed. The position statement also incorrectly stated that virtually all of Dr. Bartoszek's teaching experience at Delta was in the dental hygiene program and implied that he had no experience teaching biology. Despite the fact that he'd been teaching biology full-time for seven of his nine years at the college.

I'm guessing that Dr. Bartoszek's attorney requested a notice of right to sue. In any event, Dr. Bartoszek filed suit, claiming age discrimination under the federal Age Discrimination in Employment Act and Michigan's Elliot-Larsen Civil Rights Act. The college moved for summary judgment.

Here's where it really gets interesting.

Explanation No. 2: "Well, maybe he was qualified, but his application was lousy."

At summary judgment, the college said that Dr. Bartoszek didn't make it to the first tier of candidates because of his incomplete submission to the search committee. The primary issue seems to have been that, instead of attaching his school transcripts, he simply noted "All transcripts on file in HR." Which kind of makes sense, given that he was 68 years old and had been out of school a long time, and that he'd been working at the college for nine years total. Probably not unreasonable for him to assume that the college already had his transcripts.

And, apparently, HR did in fact have his transcripts. At least, the lawyers for the college didn't deny it.

The college argued that the search committee didn't consider anything outside of what was directly submitted by the candidates because they wanted to be fair to outside applicants. But, as the court noted, nobody told Dr. Bartoszek that.

Anyway, the college did not argue to the court that Dr. Bartoszek was unqualified for the faculty position, as it had to the EEOC. This go-round, they essentially argued that he didn't put his best foot forward with his application. (That point was raised in the EEOC position statement, but it wasn't emphasized nearly as strongly as Dr. Bartoszek's alleged lack of qualifications.)

No SJ for you! 

For Judge George Caram Steeh, those inconsistencies were a problem. Summary judgment DENIED. Dr. Bartoszek's case will go to a jury.

And do you think his lawyer will make a big deal about the inconsistent and sometimes erroneous explanations from the college? Do I even have to answer that question?

To quote Judge Steeh, "Defendant's litany of discredited reasons casts doubt on its claim that other candidates simply ranked higher than Plaintiff based upon their applications."

Tips for employers

There are a few good lessons for employers from this decision:

• Do take discrimination charges seriously. With the help of employment counsel, investigate the facts thoroughly, and make sure your position statement accurately states the facts.
• Understand that whatever you say in your EEOC response will be used against you if you change your story later. Good plaintiffs' attorneys will be on the lookout for any inconsistencies and will pounce on them.
• If your explanation changes, a court is likely to send the case to a jury.
• And those changing explanations probably won't be well received by a jury, either.

Interesting postscript to this case: When Dr. Bartoszek was passed over for the faculty position, he got mad and retired. But he eventually returned to Delta College afterward to teach an anesthesiology course.

One more postscript: I just had to look up Dr. Bartoszek on RateMyProfessors.com. He had 4.5 out of a possible 5, so he seems to have been a good teacher. But the 38-year-old who got the job had an even higher rating -- 4.9 out of 5.