Failure-to-Promote Claim Advances Based on Manager’s Comment

By Jeffrey Rhodes Oct 5, 2016
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​A former employee's claim of discriminatory failure-to-promote advanced to trial based on her manager's comment about her maternity leave when telling her why she was not chosen for a promotion, the U.S. District Court for the District of Maryland ruled.

Dimensions Healthcare System (DHS), a not-for-profit employer, hired Cassandra Crawford as an appeals coordinator in the company's Patient Financial Services (PFS) Department in May 2007. In 2012, Judith Selvage, assistant vice president of PFS, approached Crawford to see if she would be interested in a promotion to team leader.

The PFS management team hierarchy consists of lower-level insurance team specialists who report to team leaders, who in turn report to managers. DHS's written hiring policy requires an employee to apply for a vacant position on the company's intranet website. However, in practice, DHS had offered promotions to employees, including Crawford, and then asked them to submit a formal application. On Oct. 1, 2014, DHS posted two management positions on the company's intranet website: one responsible for handling accounts receivable and one responsible for oversight of professional billing.

Terreze Jones was hired in 2013 as an insurance team specialist in PFS. Despite having been counseled for unexcused absences at one point, in the fall of 2014, PFS Manager Christine Lewis and Selvage encouraged Jones to apply online for a team leader position. When Jones sought to apply, he found no open team leader positions but instead found the two vacant manager vacancies, which were one level higher than Crawford, and two levels higher than Jones's position at the time.

Jones applied to the PFS manager position and Selvage interviewed Jones for the position. Selvage told Jones that he was qualified for both manager positions and arranged for Jones to meet with a practice manager, Donna Wallington. After speaking with Wallington, Jones was informally offered both manager positions.

Jones' supervisor told Crawford that DHS had selected Jones to fill the PFS manager position. Crawford was distraught and spoke to Selvage about Jones's promotion. Crawford told Selvage that she believed she deserved the promotion to PFS manager over Jones because she was then serving as a team leader, a stepping-stone position to a PFS manager.

When Crawford asked Selvage why Jones was promoted over her, Selvage claimed that Jones had a "management background." Crawford challenged that representation based on her interview of Jones for the insurance team specialist position. Selvage allegedly replied, "Well, like I said, he has a management background. Plus, you were on maternity leave for a while." Crawford discussed what Selvage said with Lewis and learned that Selvage had supposedly demoted other women who had been out on maternity leave. These conversations with Selvage and Lewis prompted Crawford to resign.

After Crawford tendered her resignation, Jones accepted a manager position.

Crawford filed a complaint with the Equal Employment Opportunity Commission (EEOC) on Nov. 18, 2014. On May 11, 2015, the EEOC found reasonable cause to believe that DHS discriminated against Crawford because she used maternity leave. The EEOC then filed a complaint in district court alleging that DHS unlawfully discriminated against Crawford on the basis of sex. 

DHS filed a motion for summary judgment, seeking to have the case dismissed before trial. DHS claimed that Crawford did not apply for either of the available manager positions as required by DHS policy and that Crawford was not qualified for the PFS manager position. DHS also claimed that Jones was more qualified than Crawford for the position.

The court rejected the argument that Crawford had not applied for the manager positions, finding that Selvage's statement to Crawford made it futile for her to apply. The court also rejected the arguments concerning Crawford's qualifications, finding that her positive evaluations and experience as a team leader created a jury issue as to why she was not promoted.

The court found particularly significant the comment allegedly made by Selvage concerning Crawford's use of maternity leave. Selvage denied making the statement, creating an issue of fact for a jury to decide. Crawford also presented evidence that Selvage demoted other women after they took maternity leave.

EEOC v. Dimensions Healthcare Sys., D. Md., No. PX 15-2342 (Sept. 2, 2016).

Professional Pointer: Employers should carefully train managers not to make decisions based on employees' life choices and never to comment on these choices. If a manager makes such a comment in the context of an employment decision, a court can easily infer discrimination.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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