Title VII Claim Revived for Employee Passed Over for Promotions

Takeaway: An offhand comment can be used as evidence in support of an allegation of discrimination. Decision-makers should be well-equipped to handle the hiring or promotion process.  

The 1st U.S. Circuit Court of Appeals partially revived the plaintiff's sex discrimination claim, holding that a decision-maker's statement pondering whether a woman would be well-suited for the position raised a factual dispute regarding the reason for the employer's promotion decision. The 1st Circuit found that the plaintiff's "mosaic" of evidence, precluded summary judgment on the claim that she was denied a promotion because of her sex and was "just enough to warrant a jury trial." 

The plaintiff began working for the Post Office in 1998 and was promoted through the ranks until reaching the role of Level 18 postmaster by 2018. In January 2018, at age 58, she applied for an open Level 20 postmaster position in Durham, N.H. Her supervisor, the Post Office operations manager for the region, interviewed the plaintiff for the position. A 36-year-old man was ultimately hired for the role. The plaintiff's supervisor cited relevant experience as the justification for hiring the male employee.

Later in 2018, the plaintiff applied for another open Level 20 postmaster position in Somersworth, N.H. Her supervisor again conducted the interview, commenting that she "was not sure that they'd ever had a woman in Somersworth before, and she wondered how that would work out." A 53-year-old man was ultimately hired for the role. 

The plaintiff sued, alleging age discrimination under the Age Discrimination in Employment Act (ADEA) and sex discrimination under Title VII of the Civil Rights Act of 1964.  

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The plaintiff established a "prima facie" case of discrimination, but the district court found that the defendant offered a legitimate, nondiscriminatory reason for its decision and that the defendant's justifications for choosing other candidates over the plaintiff were not pretextual. These reasons were experience, organization, leadership skills, and interview performance. 

The plaintiff argued that the employer's stated reasons for denying her a promotion had no basis in fact. But the district court found the plaintiff's evidence inadequate. 

On appeal, the 1st Circuit acknowledged that the parties, and the district court, applied the wrong standard on summary judgment of the plaintiff's ADEA claim. Rather than providing that age was a "but-for" cause of an employee's mistreatment, federal-sector employees need only establish that the employment decision at issue was "tainted" by discrimination — in other words, that discrimination played any part in the way the employment decision was made.

However, the court found that the plaintiff's strategic decision not to advocate for the correct standards functioned as a waiver of her claim that this more lenient standard should apply.   

With respect to the substance of the plaintiff's claims, the 1st Circuit found that the employer's decision to promote other candidates was not based on the plaintiff's age. The court noted that although the employer cited performance as a determining factor in the promotion decision, the plaintiff's performance review included no negative feedback. The court observed that a candidate with more years of experience and training may not necessarily have the proper qualifications, or be better suited, for a particular role. 

Ultimately, the court held that the age discrepancy between the plaintiff and the chosen candidates did not, in and of itself, create an inference of age discrimination. The court also concluded that statements about a candidate's "energy," without more, do not support the conclusion that the plaintiff was not promoted due to her age, pointing to its 2008 holding in Torrech-Hernández v. General Electric Co. to support its finding that energy "does not necessarily connote youth or other age-related characteristics." 

Next, the court held that the plaintiff presented enough evidence in support of her sex discrimination claim with respect to the Somersworth promotion to create a factual dispute and avoid summary judgment. In support of her position, the plaintiff pointed to data that her supervisor promoted nearly twice as many men as women during her career; testimony that her supervisor referred to a group of six male employees as her "smoking hot" male officers, years after the promotion decision; and her supervisor's statement during her interview regarding women in Somersworth. 

The court determined that, without the appropriate context, the data had no probative value — the plaintiff did not identify how many men versus similarly situated women applied for the positions. Likewise, a statement about "smoking hot" male officers well after the promotion decisions did not support an inference of discrimination. However, the court found that the plaintiff's supervisor's comment about the feasibility of a female postmaster in Somersworth could suggest that the supervisor harbored doubt that a woman could do that job. Taken together, all the plaintiff's evidence could support a finding that she was denied promotion because of her sex. Thus, the court reversed summary judgment on that claim. 

Sample Form: Promotion Announcement

Notably, the plaintiff asserted much of the same evidence of sex discrimination for her claim related to the Durham position, but the court upheld summary judgment on this claim because, without the supervisor's comment, the plaintiff's other evidence of pretext was not enough to create a triable issue of fact. 

The 1st Circuit emphasized that a plaintiff must present clear and sufficient evidence to establish pretext — simply calling the employer's decision into question is insufficient. Further, when an employer presents substantial evidence in support of its decision, a plaintiff's inability to present contradictory evidence will likely preclude a finding of pretext. 

Niyah Dantzler is an attorney with Duane Morris LLP in Philadelphia.