Employment Law Daily Race bias is not a tort, and nonpromoted counselor can’t show Title VII pretext either
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Wednesday, September 19, 2018

Race bias is not a tort, and nonpromoted counselor can’t show Title VII pretext either

By Lisa Milam, J.D.

An African-American rehabilitation counselor could not revive her failed race discrimination claims against the Louisiana Workforce Commission agency based on the employer’s selection of a white candidate over her for promotion to a supervisory position, the Fifth Circuit held. She sued under a state tort law theory, which does not provide a cause of action—that’s what the state’s employment discrimination statute is for. As for her claim under Title VII, she could not rebut the employer’s showing that it hired the successful candidate because she possessed a credential the employee was lacking. The fact that the decision-maker sought to rescind the white candidate’s promotion when the employee filed a grievance over the decision was not suggestive of pretext, the appeals court said; rather, it showed that the decision-maker took the allegation of discrimination seriously and wanted to ensure that the promotion decision was above-board (Roberson-King v. State of Louisiana Workforce Commission, September 17, 2018, Higginson, S.).

No cause of action in tort. Article 2315 of Louisiana’s civil code provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The employee brought suit under this provision contending her allegedly discriminatory nonpromotion amounted to a breach by the state of its statutory duties under Title VII. But the federal district court dismissed this claim, explaining that any state-law action for employment discrimination must be asserted under the Louisiana Employment Discrimination Law (LEDL), the statutory scheme specifically designed to address claims for discrimination in employment.

Why didn’t she sue under the LEDL? Perhaps because, unlike Article 2315, the discrimination statute requires a claimant to provide written notice of intent to sue at least 30 days before filing, and to first give the defendant a chance to make a good-faith effort to resolve the dispute. It also limited damages, unlike the tort provision. However, the employee identified no Louisiana cases permitting recovery for employment discrimination under Article 2315. Such a cause of action “is inconsistent with the LEDL,” the appeals court found, and the court below had properly dismissed this claim.

Plaintiff not clearly more qualified. As for her Title VII claim, the appeals court found the employee clearly established a prima facie case of race discrimination. However, the employer met its burden of showing there was a legitimate, nondiscriminatory basis for its promotion decision. It asserted that it promoted the successful candidate not because she is white but because she held a Certified Rehabilitation Counselor (CRC) credential, and the employee did not. And the employee could not meet her rebuttal burden of showing that this stated reason was pretextual.

Both candidates exceeded the minimum job qualifications; both held master’s degrees, were “master counselors” in the department; and had some supervisory experience (the employee had supervised 10 individuals as a first sergeant in the air force reserves; the white candidate had only supervised one person—but within the department). The employee had more tenure, but the selected candidate achieved the “master counselor” rank more quickly. The employee held a slight edge on meeting production quotas; she also had been selected to attend a leadership academy, and earned an extra 15 hours of graduate credit. Still, she lacked the CRC certification that the white candidate possessed. On the whole, any differences between the two did not create a genuine issue of fact as to whether the employee was clearly more qualified, the appeals court reasoned. “The choice to value [the other candidate’s] CRC credential over [the plaintiff’s] strengths is within the realm of reasonable business judgments,” it wrote.

Revisiting the decision did not suggest pretext. The employee noted that the appointing authority within the rehabilitation services department had tried to rescind the white candidate’s promotion after the employee filed a grievance alleging racial discrimination. But the decision to revisit the decision was not evidence of pretext, the court said. The decisionmaker said he wanted to put the brakes on the promotion process because he “takes allegations of racial discrimination very seriously and wanted to ensure that everything was done properly.” And there was nothing in the record to suggest that he had uncovered any evidence that the promotion decision was, in fact, discriminatory. Thus, the appeals court affirmed summary judgment in the employer’s favor.

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