Wilson v. Dollar General Corporation, et al., Case No. 4:14-cv-00033 (W.D.Va. November 30, 2014). We wrote about Lamont Wilson’s termination from his job at Dollar General Corporation last year here. In that case, Mr. Wilson was permanently blind in one eye, and began to lose the sight in his other eye. He sought additional leave from work in the hope that his good eye would recover, but after some leave had been granted, Dollar General fired him. Mr. Wilson sued Dollar General and alleged that he was terminated because of his blindness, a disability. The court concluded that, although Mr. Wilson was by all accounts an excellent employee, he had no rights under the Americans with Disabilities Act because he could not show that some additional leave time would put him in a position where his sight would be restored. As a result, the requested accommodation – additional leave – would not have made him qualified for the job. The Fourth Circuit Court of Appeals affirmed the decision of the District Court in May 2013.
After his termination, and while his case was on appeal, Mr. Wilson had two surgeries to restore vision in his good eye. In June 2013, Mr. Wilson applied online for new employment with Dollar General for a general warehouse position at Dollar General’s South Boston, Virginia, distribution center. After his online application, Mr. Wilson was not offered an interview or a job with Dollar General. In his Complaint, Mr. Wilson alleged that Dollar General refused to interview or hire him because he was disabled, and that Dollar General’s refusal to interview or hire him was retaliation because he had brought his earlier discrimination claims against Dollar General, all of which violated the ADA.
In its defense, Dollar General argued that Mr. Wilson had not completed the online application process. That process, said Dollar General, had two steps. The first step was a “Gateway Questionnaire,” which solicited information concerning an applicant’s employment history, education history, shift availability, and other general information. Following the “Gateway Questionnaire” was the second step, the “Assessment.” Mr. Wilson, Dollar General said, had never completed the Assessment.
It almost goes without saying that in a claim of discriminatory failure-to-hire, the plaintiff has to show that he applied for the position in question. A failure to hire does not exist without a plaintiff’s attempt to get hired. An essential part of the claim is that the defendant employer must reject a job application under circumstances that give rise to an inference of illegal discrimination. Dollar General’s argument was simple: In the absence of the Assessment, Mr. Wilson had not applied for the job. In the absence of a job application, there can be no failure to hire. Dollar General filed a Motion for Summary Judgment and asked the Court to dismiss Mr. Wilson’s claim on this basis.
Dollar General admitted that Mr. Wilson had completed the “Gateway Questionnaire” and that it had automatically issued Mr. Wilson the following email message:
“Thank you for the time you took applying for employment with Dollar General. We have received your application for the position of 3410 GENERAL WAREHOUSE—South Boston VA Distribution Center—1037BR and are currently reviewing your experience and qualifications. If your profile corresponds to our requirements, a member of our team will contact you.“
(The emphasis in the email was added by the Court.) Dollar General asserted that it had performed an “extensive review” of its system and that it had found Mr. Wilson’s Gateway Questionnaire but not an Assessment. It also asserted that its system would have auto-generated an email to Mr. Wilson two days after the earlier email which would have said:
“You recently began the process of applying for a position at Dollar General, but did not finish the assessment(s). Your application will not be complete and you will not be considered for employment until you have completed the assessment(s). Please follow the link below to access your pending assessment(s).“
(Again, emphasis supplied by the Court.) The Court noted that Dollar General did not produce a copy the email that had been sent to Mr. Wilson, but only a screenshot of an email that the system would automatically create and send if an applicant had not completed the Assessment within a few days after the Gateway Questionnaire. Dollar General strenuously argued that the first email could not be read in a vacuum, but had to be read in connection with the second email.
Dollar General, however, could not overcome the plain language of the first email: “We have received your application for the position … and are currently reviewing your experience and qualifications.” The Court found that it was “abundantly clear” that Dollar General’s first email to Mr. Wilson was “utterly contradictory” to the second email, and also to Dollar General’s evidence in support of its motion for summary judgment. The Court held that, when faced with deciding which of two contradictory statements was the truth, the decision was to be made by a jury.
The Court found that Dollar General, on a motion for summary judgment, could not claim that, despite the clear message they sent to Mr. Wilson, the application process was actually not completed. Whether Dollar General had inadvertently misled Mr. Wilson into believing an application was completed, or whether Dollar General had intentionally misled him as a pretext for discrimination, and whether Mr. Wilson had completed an application were questions for a jury to decide. At a minimum, there was a genuine factual dispute that would make summary judgment improper.
A theme in this decision is that an email message from an employer is an admission by the employer and will be accepted by a court as evidence of the employer’s statements and intentions, even if the message is generated automatically by a computer program. Automatic messages have an inherent problem in that they are rarely reviewed by the person or entity sending them and almost always relied upon by the person receiving them. When, as here, automatic messages are mutually and materially contradictory, they make summary judgment for the employer an impossibility.