Promotion Bypass Withstands Race-Discrimination Claim


By Roger S. Achille June 11, 2019

​An employee who was bypassed for a promotion yet was similarly qualified to the successful applicant failed to provide evidence that the employer's reasons for its choice were a pretext for race discrimination, according to the 8th U.S. Circuit Court of Appeals.

The plaintiff began working at Arkansas Blue Cross and Blue Shield (ABCBS) in May 2004 as a customer service representative. She subsequently became a claims specialist and then a market service representative. Prior to working at ABCBS, she received a master's degree in management and worked as a salesperson for 11 years in retail clothing stores. In March 2014, ABCBS's customer service supervisor announced that she was planning to retire. In anticipation of the vacancy, ABCBS upgraded the customer service supervisor position to manager of operations for the southeast region and Pine Bluff office.

ABCBS's regional executive for the southeast region interviewed three employees for the position, including the plaintiff, who is black. The other two applicants were both white. The regional executive asked each applicant the same questions and scored their responses from 1 to 5 in 11 separate categories.

During the interviews, the regional executive told the candidates that he was looking for someone with retail experience because the new manager of operations would be responsible for developing a retail storefront concept at the Pine Bluff office where customers could come in, ask questions and select insurance products. In their respective interviews, the successful applicant scored 45, and the plaintiff scored 42.5.

The successful applicant began working at ABCBS in March 2004 as a customer service representative, eventually becoming a product specialist and then an internal service representative. In October 2013, the successful applicant assumed the position of regional financial risk manager trainee for the southeast region. Prior to working at ABCBS, she earned a bachelor's degree in business administration and worked for almost three years at a wireless service provider as a key account representative.

In May 2014, the regional executive chose the successful applicant, noting that she scored the highest during the interviews, and her previous employment duties were most similar to what he envisioned for the Pine Bluff location. The plaintiff alleged race discrimination based on ABCBS's failure to promote her.

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The 8th Circuit acknowledged that the plaintiff met her initial burden because she was in a protected class, qualified for the operations manager position and denied that position, and ABCBS filled the position with a person not in the same protected class.

But ABCBS offered legitimate, nondiscriminatory reasons for not hiring the plaintiff. ABCBS contended that the plaintiff scored lower on the interview, and the successful applicant's prior retail experience was more relevant to the storefront concept that ABCBS wanted to develop at the Pine Bluff office.

The burden then shifted back to the plaintiff to demonstrate that the reasons offered by ABCBS were pretext for discrimination. A plaintiff can show pretext in at least two ways: by showing that the employer's explanation is unworthy of credence because it has no basis in fact or that a prohibited reason more likely motivated the employer.

The 8th Circuit concluded that a comparative analysis of their qualifications gave the court no reason to disbelieve ABCBS's reasons for its employment decision. The court noted that both women scored well on the interview and were well-acquainted with ABCBS products. In addition, the plaintiff's retail experience was largely transactional, while the successful applicant's experience involved providing full customer service. Because the court's comparison revealed that the plaintiff was only similarly qualified, no inference of race discrimination arose.

The plaintiff also claimed that the regional director had preselected the successful applicant for the position and reduced the minimum job requirements to ensure that she qualified. Specifically, the plaintiff indicated that, unlike other manager of operations positions, this position did not require a college degree or management experience. Even assuming the minimum job requirements were reduced, the 8th Circuit declared, the plaintiff presented no evidence that the regional director had any role in the reduction or that the reduced requirements failed to accurately represent the responsibilities of the position.

Nelson v. USAble Mutual Insurance Co., 8th Cir., No. 18-1439 (March 22, 2019).

Professional Pointer: Evidence of preselection or arbitrary manipulation of job requirements to benefit a preselected applicant may discredit an employer's alleged legitimate business explanation.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.


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