Denial of Promotion OK’d When Employee Failed Assessment

By Jared L. Grisham September 30, 2020
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An employer was not liable for age discrimination when it denied a promotion to a septuagenarian who had failed the employer's standard assessment test, according to the 7th U.S. Circuit Court of Appeals.

The plaintiff began working for his employer as an engineer when he was 53 years old. In 2013, when the plaintiff was 73, he received a promotion following his successful written and verbal examination for the position of operating engineer–group A.

One year later, the plaintiff sought another promotion—this time to the role of assistant chief operating engineer. To be promoted again, he had to pass a three-part examination: two-parts written and one-part verbal.

One of the questions during the verbal exam asked applicants to describe the steps necessary to put a centrifugal pump into service. The plaintiff asked his proctors if he could answer the question by explaining the process of putting a turbine-powered centrifugal pump into service. He was given permission, and he proceeded to answer the question in that manner.

Although the plaintiff successfully completed the two-part written exam, he did not receive a passing score on the verbal exam. The completed rubrics evaluating the plaintiff's verbal exam revealed that he did not receive full credit because he limited his answer to discussing a turbine-powered centrifugal pump. As a result, the plaintiff did not receive his promotion.

He filed suit against his employer alleging that he was denied a promotion due to his age. His employer denied any liability and moved for summary judgment.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The district court granted the employer's motion for summary judgment, and the 7th Circuit affirmed. The appellate court found that the plaintiff had failed to point to at least one similarly situated younger applicant—someone who also scored below the minimum on the verbal exam—who was nevertheless promoted. Further, even if the plaintiff had shown that a younger person failed the verbal exam and was nevertheless promoted, he failed to present any evidence that the failing score he received on his verbal exam was pretext for age discrimination.

Ultimately, the crux of the plaintiff's claim was that his employer improperly scored his verbal exam and therefore used his failing grade as pretext to deny him the promotion. But an employer is permitted to set the necessary qualifications for an employment position. Unless there was sham scoring in the evaluation of the plaintiff's exam, his claim would be unsuccessful.

The plaintiff argued that his scoring was a sham because his failing grade was merely pretext to deny him a promotion. Here, the court observed that to show pretext, a plaintiff "must do more than simply allege that an employer's stated reasons are inaccurate; he must still have some circumstances to support an inference that there was an improper motivation proscribed by law." The plaintiff had pointed to no evidence of improper motivation other than the proctors' knowledge of his age relative to that of the other candidates. That was not enough.

Tyburski v. City of Chicago, 7th Cir., No. 18-3000 (July 1, 2020).

Professional Pointer: This case illustrates the importance of using standardized assessments in evaluating employee qualifications as a means of protecting employers from age-discrimination claims. So long as there are objectively identifiable nondiscriminatory reasons for denying an employee a promotion, the employee will have a difficult time succeeding on a claim for age discrimination.

Jared L. Grisham is an attorney with Neel, Hooper & Banes PC, the Worklaw® Network member firm in Houston. 

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