Today, the United States Court of Appeals for the Tenth Circuit issued a decision, Vazirabadi v. Denver Health & Hosp. Auth., No.18-1411, 2019 U.S. App. LEXIS 23159 (10th Cir. Aug. 2, 2019) affirming the district court's grant of the defendants' motion for summary judgment in an age discrimination suit. The plaintiff applied for a position with Denver health using an online application process, which included a competency test administered by SHL US, Inc.. One question asked Vazirabadi if he was over 40 years old, and he answered in the affirmative. The case turned on whether or not Denver Health had access to the information about the plaintiff's age collected by SHL, even though such demographic information was only provided in aggregate and not for individual applicants. There was no evidence that the only person with access to batches of aggregate information, the Denver recruitment director, reviewed the portion of it from the relevant time period for this case. The plaintiff appeared pro se.
Vazirabadi submitted a screenshot from a document review tool that showed "40" next to his name in two locations. The reference to his age was found in metadata transmitted with this score report. Despite the fact that Vazirabadi swore that the screenshot was true and correct, the Tenth Circuit found that, "that naked remark says nothing about the source of the document shown to be under review in the screenshot, who performed the review, what program generated the image, etc." Id. *3. The document could not be authenticated, and Judge Carlos F. Lucero's opinion states that the record did not show its origin. The Court found there was no other direct evidence of age discrimination.
A review of the age discrimination claim under a test used in cases where only circumstantial evidence exists, showed that the burden could not be shifted back to Denver Health to show a non-discriminatory basis for its rejection of Vazirabadi's application. The Court also upheld the lower court's quashing of a subpoena to obtain documents from the defendants' forensic expert. Vazirabadi sought the documents pursuant to Federal Rule of Civil Procedure 26(b), which allows for discovery of expert documents when facts or opinions cannot be obtained by any other means. The Tenth Circuit found that the necessary exceptional circumstances did not exist.