Employment Law Daily No vacancy required for a promotion denial to be an adverse action
Thursday, June 2, 2016

No vacancy required for a promotion denial to be an adverse action

By Brandi O. Brown, J.D. Although affirming a district court's grant of summary judgment to an employer in a suit brought by a blind African-American Health and Human Services employee, the D.C. Circuit emphatically disagreed with the basis of the lower court's decision. While the district court had accepted the employer's argument that a promotion denial was only recognizable as an adverse employment action if a vacancy for the desired job already existed, the appeals court explained that there was "no such categorical rule" in its case law. Such an approach, the court warned, would create "an unacceptable loophole in our antidiscrimination law." The judgment was affirmed (Chambers v. Burwell, May 31, 2016, Griffith, T.). Asked for promotion. The longtime, highly rated HHS employee filed suit against her employer when it failed to promote her to a GS-11 position. She approached her second-level supervisor in 2007 requesting promotion to the higher pay grade but was told she would either have to apply for an available GS-11 position or request a "desk audit" to determine whether her current duties warranted the higher pay grade. She did neither but instead spent the next four years pursuing an informal method of promotion. Specifically, she sought the creation of a higher-graded vacancy with the responsibilities that she already held. Her second-level supervisor supported her efforts but had no authority to create a new position. He told her that he would request that his superiors create a position. Denied because of budget. In October 2011, the employee was told by her second-level supervisor that he had asked the Deputy Assistant Secretary to create the position but had been told that it could not be done because of budgetary constraints. She filed a complaint that month with the equal employment opportunity office. She alleged she had been denied promotion based on her race and disability because at the same time she had been told that funding was lacking, the agency had created new positions for three white department heads without vision impairments. She also alleged that other coordinators who did the same work as she did in other areas of HHS were paid at a higher grade. An expedited desk audit concluded, however, that her job had been properly classified. She then filed suit alleging that the failure to promote was based on her race and disability in violation of Title VII and the Rehabilitation Act. Vacancy not required. Although the appeals court agreed with the final decision of the court below, it found the basis for its decision problematic. The employer had argued, and the lower court had agreed, that while a promotion denial is an adverse employment action, it could only be cognizable as such if a vacancy already existed for the desired job. The appeals court did not agree that the lack of a vacancy doomed the employee's claim. It explained that the denial of an increase in pay or grade was one of the two main forms of alleging a promotion denial. To hold otherwise, the court explained, would be to create "an unacceptable loophole" in the law. If a rule existed that employees always had to identify a vacancy before going forward with a promotion denial claim, employers would be permitted to "systematically pass over qualified candidates" for discriminatory reasons. Supervisors would be given carte blanche, essentially, to create vacancies tailored to particular individuals because of animus towards individuals in a protected class. No link to race or disability. That said, the court nonetheless determined that the employee's claim did have a "fatal defect." She failed to show she was denied the promotion based on her race or disability. The core of her argument was that her second-level supervisor was to blame for her failure to be promoted. She alleged that he never requested the creation of a GS-11 position. However, no reasonable juror could find that the second-level supervisor contributed to the employer's inaction. To the contrary, the evidence indicated that he had made the request. Moreover, the record showed that he supported her career development in many ways, including giving her high performance ratings and training opportunities. In fact, during her time under that second-level supervisor, she received twice as many promotions as the other employees he supervised. The employee's evidence to the contrary was "merely colorable." She argued that she was given conflicting reasons for the denial of the requested new position, but the court found that the reasons given were not in tension. She also pointed to the fact that there was no paperwork in the record indicating that the second-level supervisor requested the position. However, the court noted, she made no discovery request for such paperwork. Therefore, no reasonable jury could conclude the supervisor had lied based on the absence of paperwork that was never requested in the first place. Nor would the fact that she later received the GS-11after litigation began allow a reasonable juror to infer that the supervisor, who selected her for the promotion, failed to ask for it earlier. The employee also failed to present evidence showing other supervisors had made requests of this sort that had been granted. Finally, the court noted that the decisionmaker did not know who the requested promotion was for and, therefore, could not have denied it based on her race or disability.

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