Failure-to-Promote Claim Proceeds

​The U.S. District Court for the Northern District of Alabama held that a former railway employee could proceed with her claim of discriminatory failure to promote, even though she filed her administrative charge several years after the alleged discriminatory act that formed the basis of her claim. Although, generally, a Title VII of the Civil Rights Act of 1964 claimant must file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days following the alleged act of discrimination, the court held that the doctrine of "equitable tolling" saved the plaintiff's claim, thus allowing it to proceed.

Under this doctrine, where there is evidence to support that an employer attempted to mislead a plaintiff, "the statute does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for her rights."

Marita Tubbs, who is black, worked as a conductor for Norfolk Southern Corp. for more than two years. She was then promoted to the position of locomotive engineer in 2009 and remained in that role until the end of her employment in June 2014.

In 2009, Tubbs learned of openings for the position of remote intelligent terminal (RIT) trainer throughout the southeast United States. After inquiring with a supervisor, she was allegedly informed that the RIT trainer positions were only open to employees who were conductors. As a result, because she was qualified as both as a locomotive engineer and a conductor, she understood that she was not eligible to pursue the RIT trainer position.

From 2009 until 2012, the company selected five individuals for the RIT trainer position in the southeast. As alleged by Tubbs, the company did not advertise the positions, nor did it notify other employees of its selections for the positions. In August 2012, several years after Tubbs had expressed interest in the RIT trainer position, she alleged that she learned that none of the individuals selected in the southeast were black. Rather, they were all white males. Two selectees also held both the locomotive engineer and conductor qualifications.

Upon learning the foregoing, Tubbs filed a charge of discrimination with the EEOC in September 2012. She subsequently filed a Title VII race discrimination failure-to-promote suit on her own behalf, as well as on behalf of a punitive employee class. In seeking to dismiss Tubbs' failure-to-promote claim, Norfolk Southern argued that because her charge of discrimination filed with the EEOC was untimely, her lawsuit was barred.

[SHRM members-only sample job posting policy: Staff Promotions]

In response, Tubbs asserted that her claim should be allowed to proceed based on the doctrine of equitable tolling.

In permitting Tubbs' claim to proceed, the court noted that it "was not persuaded that Ms. Tubbs' supervisor told her the truth when he informed her that she was ineligible for the RIT trainer position because only conductors were eligible." In this regard, the court stated that a reasonable person could have interpreted the supervisor's alleged statement that "only conductors were eligible" to mean that those individuals with both the conductor and locomotive engineer qualifications were not eligible.

However, as noted above, two of the individuals selected for the position held both qualifications. Thus, the court concluded, because there was a question as to whether Tubbs was misled, there was also a question of material fact as to the application of the doctrine of equitable tolling to her failure-to-promote discrimination claim. As a result, the court denied Norfolk Southern's motion to dismiss the claim.

Tubbs v. Norfolk Southern Corp., N.D. Ala., No. 2:15-cv-01547 (Sept. 27, 2017).

Professional Pointer: Employers should take steps to clearly document and communicate the qualifications necessary to apply for promotional opportunities. Employers should also ensure that they openly advertise promotional openings throughout their workforce. Such steps not only help ensure the largest pool of qualified applicants but can also help defend against claims of alleged discriminatory promotional practices.

Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C.

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