Takeaway: The court resisted substituting its judgment for that of the employer, stating twice that its role is to protect against unlawful discrimination, not to verify that employment decisions are wise, fair, or correct. Nonetheless, employers can reduce the likelihood of discrimination claims by making sure their actual employment practices, particularly in hiring, conform to their written policies.
An appeals court upheld a city-run water-treatment plant’s decision to hire a younger, white man who did not meet education qualifications in the plant’s original written policy over a minority applicant with an advanced degree. The 10th U.S. Circuit Court of Appeals found the plaintiff failed to prove his race and age discrimination claims when the revised education requirements matched the actual hiring practice of substituting experience for some education.
A Chinese-born senior engineer at a city water-treatment plant and two younger, white men had applied for the position of superintendent of the water department. The hiring process had a two-step procedure. First, the HR director had to certify that the applicants were qualified for the position and then the hiring manager would decide whom to hire from the certified applicants.
In this case, the hiring manager convened a three-person panel to interview and evaluate the candidates. The panel unanimously ranked one of the younger applicants, an operations manager who oversaw multiple employees and had served as a squad leader in the National Guard while deployed in Afghanistan, as having the best mix of technical knowledge and leadership experience. That man was hired.
The senior engineer, who held a Ph.D. in engineering but had no supervisory experience, complained to the city’s HR department of race and age discrimination. He asserted that the HR director shouldn’t have certified the other two applicants as neither met the job’s written requirement concerning education: a bachelor’s degree in engineering technology, environmental/biological science, or a related field. Although the city’s written policy generally permitted substituting experience for education, it did not allow such substitution for positions requiring a specific degree. The grievance was denied and the senior engineer appealed to the city’s civil service commission.
The civil service commission agreed with the plaintiff and instructed the city to “go back and follow” its policies. In response, the city rewrote the position’s education requirements, removing the degree requirement and providing a new formula for substituting experience for education: applicants with 60 hours of college credit and seven years of relevant experience would be treated as if they had 120 hours of college credit. Under the new requirements, both of the younger men qualified as applicants since they each had at least 60 hours of college credit and the requisite supervisory experience.
The HR director averred that the new job description reflected the city’s “consistent past practice” of allowing the substitution of experience for education if an applicant met at least half of the position’s education requirement. Contemporaneous emails show that HR employees believed this to be the policy at the time.
After the city reposted the position with the new requirements, all three men reapplied, a new evaluation panel was convened, and the same man was chosen again for the position.
The senior engineer sued the city for race discrimination under Title VII of the Civil Rights Act of 1964 and age discrimination under the Age Discrimination in Employment Act as well as retaliation under those statutes.
The district court held that the plaintiff had not shown that the city’s legitimate explanations for hiring someone else were pretextual and granted summary judgment for the city.
On appeal, the 10th Circuit applied the McDonnell Douglas burden-shifting framework to the plaintiff’s claims: 1) the employee makes a prima facie case of discrimination, or the employer wins; 2) the employer offers a legitimate, nondiscriminatory reason for the adverse employment action, or the employee wins; and 3) the employee identifies facts that could allow a jury to find each of the employer’s legitimate reasons pretextual, or the employer wins.
“Pretext is where our analysis begins and ends,” the appellate court said. “At summary judgment, an employer’s justification is pretextual if it is so incoherent, weak, inconsistent, or contradictory that a reasonable jury could find it unworthy of belief.” When deciding whether an explanation is pretextual, the court noted that it considers the facts from the decision-maker’s point of view.
“We then ask whether the decision-maker honestly believed her nondiscriminatory reasons for hiring someone else. And that’s all we ask — not whether the hiring decision was wise, fair, or correct,” the court said.
Reviewing the plaintiff’s first charge of procedural irregularities — the HR department’s initial certification of the two younger, white men even though neither qualified for the job under the city’s written policies — the court found that the plaintiff failed to establish that the officials’ explanation was pretextual. The plaintiff didn’t contradict the city’s evidence that it regularly substituted experience for education, even for jobs requiring a specific degree, nor did he contradict evidence that the HR director had previously certified a treatment-plant supervisor who hadn’t met the degree requirement.
As for the second procedural irregularity — rewriting the job’s requirements to qualify the other two applicants — the 10th Circuit noted that “the city revised the position and restarted the entire hiring process rather than retroactively justifying a facially unqualified candidate.” The court found that removing the degree requirement didn’t undermine the city’s explanation that it wanted a candidate with both technical knowledge and leadership experience. “Without more, the procedural irregularities here aren’t enough to show pretext,” the court held.
Turning to the plaintiff’s assertion that the interview process was so subjective that it revealed pretext, the court said that for a hiring rationale to be so opaque as to hide “unspoken discriminatory input,” the “criteria on which the employers ultimately rely must be entirely subjective.” This situation, in which the evaluators explained their impressions and graded all candidates using the same criteria, doesn’t support pretext, the court said.
In response to the plaintiff’s argument that not being hired despite his superior educational qualifications could allow a jury to find pretext, the court said that the city wanted both technical qualifications and leadership. “[W]e don’t permit cherry-picking some qualifications over others,” the 10th Circuit said.
Finally, the plaintiff’s retaliation claim failed because he did not show pretext. According to the HR director, “The city changed the education requirement to reflect the previous practice of the city… [a]nd as we explained, the plaintiff never contradicted this legitimate explanation,” the court concluded, affirming the district court’s judgment on all claims.
Jiang v. City of Tulsa, 10th Cir., No. 25-5097 (March 17, 2026).
Rosemarie Lally, J.D., is a freelance legal writer based in Washington, D.C.
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