TO: John Brown, Attorney
FROM: Melissa Myer, Paralegal
RE: Smith v. TSA
ISSUE(S):
1. Whether a female plaintiff may establish a prima facie case for sexual discrimination under 42 U.S.C. Sec. 2000e (Title VII) when the plaintiff fails to receive a promotion over a less qualified male who is not considered a member of a protected class.
2. Whether a party receives a promotion under 42 U.C.S. Sec. 2000e (Title VII) when a party applies for a position that is more prestigious but does not include a significant pay increase.
ANSWER(S):
1. A female plaintiff establishes a prima facie case for sexual discrimination under 42 U.S.C. Sec. 2000e (Title VII) when the plaintiff fails to receive a promotion over a less qualified male who is not considered a member of a protected class.
2. A party receives a promotion under 42 U.C.S. Sec. 2000e (Title VII) when the party applies for a position that is more prestigious but does not include a significant pay increase.
FACTS:
Client, Linda Smith, was formerly employed in a supervisory capacity for Texas State Agency (TSA) since 1985. Prior to accepting this position, the client performed similar duties at a county office. The client’s direct supervisor was Deputy Commissioner Richard Jones, who also hired her.
During the client’s tenure at TSA, she received excellent evaluations. She went from a supervisor of 15 to 30 employees, ten of which were inspectors. The client’s section produced 50 percent of TSA’s fines and recovered 50 percent of its fines and compliance agreements from resultant inspections. The client was also named “employee of the year” in 1989.
Recently, the client applied for one of two managerial positions. The client’s salary as manager would have yielded only a slight increase in pay, with the promotion being within a different classification (“manager”). Mr. Jones selected John Brown, who worked as one of the client’s team leaders. Mr. Brown had been employed by TSA since 1988.
When the client asked Mr. Jones for an explanation for his choice, he informed her that Mr. Brown held a four-year degree (the client has an associate’s degree in business) and had an “aggressive style.” (Note: no degree requirements were specified for the managerial position.) Mr. Brown had limited supervisory experience; however, his team’s recovery of fines was the highest in the client’s section. Mr. Jones further stated that the client’s inspections had dropped in fine production (two percent) since 1989. More specifically, he stated to the client that the position would yield an insignificant raise, so “why bother?”
The client gave Mr. Brown excellent evaluations; however, she had expressed concern over his ability to "work as a team member."
Since the time the client joined TSA with six other female employees, four upper level positions had been open, yet none of the females received promotions; two were refused interviews. The client indicates that she and fellow female co-workers had not been invited to attend the same national conferences as male coworkers holding the same supervisory position. Additionally, the client received inappropriate sexual innuendos from male coworkers. While she did not file a formal complaint, she did mention this to Mr. Jones.
After the client was denied promotion, she resigned from TSA, claiming constructive discharge and “humiliation” that one of her male employees was selected over her. The client has received a “right to sue” letter from the EEOC on grounds on gender-based discrimination and has 30 days to file an initial pleading.
DISCUSSION:
To prove a prima facie case of discrimination based on gender, the client must first establish that a prima facie case exists. See McDonnell Douglas Corp. v. Green, 411 U.S. 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the Supreme Court established a four-prong criteria scheme that a party must meet in order to prove that such a case exists. Namely, the party must demonstrate that 1) No promotion was received; 2) the party was qualified for the position sought; 3) the party fell within the protected class at the time of the failure to promote; and 4) either the position sought was filled by someone not within the protected class or that the party was not promoted due to race. See id. at 802.
The client has specified that she applied for a promotion that was not received. Furthermore, based on the client’s statements regarding upper-level management positions at TSA being filled by males, one may assume that the client, a white female, falls within the protected class category and therefore is protected under 42 U.S.C. 2000e-2(1-2), which prohibits an employer from discriminating against an employee with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The two issues left to address, then, are if the client was suitably qualified for the position sought; and if so, if this position constituted a “promotion,” as no substantive raise in compensation would have been given to the client had she received it.
To address the issue of qualifications, we turn to Beverly Thomas v. Texas Dept. of Criminal Justice, 220 F3d 389 (5th Cir. 2000). Plaintiff Beverly Thomas, who had been employed by TDCJ since 1979 in a variety of capacities, including Sergeant of Correctional Officers and Lieutenant of Correctional Officers, applied for a promotion to Captain in December 1996 and January 1997. She failed to receive the promotion on both occasions; instead, three white males were hired to fill these positions. Thomas filed a charge with the EEOC, stating that she had been denied the promotion of Caption “due to discrimination on the basis of race and gender, and retaliation.” See id at 1. A federal trial court found in Thomas’ favor on all counts and issued compensatory damages. A district court entered the final judgment, adjusting the amount of compensatory damages, and awarded back pay based on the salary adjustment and attorney’s fees. TDCJ appealed to the Fifth Circuit court, which applied the reasoning in McDonnell Douglas to ascertain if Thomas’ qualifications were an issue in establishing a prima facie case. See id. at 2.
The position Thomas sought required four years of full-time correctional custody/law enforcement experience, two years of supervisor position experience, one year minimum of mid-level managerial experience, and 30 semester hours from a college or university. Thomas met and exceeded these qualifications. TDCJ argued that the applicants selected had “more mid-level supervisory experience and gave better answers at the interview.” However, during trial, Thomas presented evidence that proved that one of the applicants for the Captain position failed to meet the 30-hour minimum qualification, having only 18 credit hours. The other applicant specified that he had 38 credit hours on his application but received only 32. The court acknowledged “conflicting evidence presented to the jury regarding TDCJ’s failure to promote” and found that Thomas presented adequate evidence to suggest that TDCJ engaged in gender and racial discrimination. See id. at 2.
If we assume that the client is then able to prove a prima facie case for gender discrimination, TSA must provide a legitimate, nondiscriminatory reason for rejecting the client for promotion and prove this by preponderance of the evidence. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 253, 101 S.Ct. 1093, 67 L.Ed.2d 215 (1981). That is to say that the client failed to meet the qualifications set forth for the managerial position that the client sought or that Mr. Brown met these qualifications more precisely.
While Mr. Brown has more credit hours in college, having received a bachelor’s degree, unlike Thomas, there were no minimum qualifications set forth with respect to whether the candidate should have an associate’s degree or bachelor’s degree. Therefore, this factor should be disregarded. In addition to an exemplary track record at TSA, the client has been employed by TSA for three more years than has Mr. Brown. In the Thomas case, TDCJ argued that the candidates promoted had more “mid-level experience” than Thomas, listing this as a factor in their hiring decision. Our client does not have to prove that she has less experience than Mr. Brown; in fact, her years with TSA in a supervisory capacity, including acting as Mr. Brown’s supervisor, indicate that she in fact has more experience in this area. Mr. Jones’ reasoning behind the hiring of Mr. Brown based on his “aggressive style” could therefore be incidental and anecdotal.
This issue was also addressed in Alvarado v. Texas Rangers, 505 F.3d 408 (5th Cir. 2007). After working nine years at the Department of Public Safety in various capacities, including working in the Highway Patrol Division and the Criminal Law Enforcement Division, Juanita Alvarado applied for a Sergeant position with the Texas Rangers, an “elite unit within DPS ... [with] a unique and illustrious history.” See id. at 5. When selecting the top ten candidates for the positions to be filled, Alvarado’s written examination scores and interview score placed her at the twenty-ninth ranking. All of the positions filled were filled by males. See id. at 2. Alvarado was ultimately unable to supply the district court a definitive prima facie case of gender discrimination, and the court granted summary judgment to the defendant. On appeal, the Fifth Circuit Court, which reversed and remanded the findings of the district court, addressed Alvarado’s contention that her oral examination scores were scored lower than that of the male candidates, suggesting possible gender bias. However, the court ascertained that because there were no written marks on the questionnaire presented which indicated the subjective state of mind of the interviewers of Alvarado and the males interviewed, a jury could not determine if indeed Alvarado’s non-selection was based on intentional sex discrimination. Further proof must be rendered by both Alvarado and defendant on the remanded trial. See id. at 6-7.
The second issue to address is whether the client’s failure to receive the position of manager can be construed as a failure to promote, given that this position paid roughly commensurate with her current salary and incentives put together. This too was addressed in Alvarado. The Fifth Circuit Court of Appeals sought to ascertain if a denial of a transfer into a more desirable position (which paid commensurate with Alvarado’s current position) was in fact a denial of promotion and therefore, actionable as an adverse employment action under 42 U.S.C. Sec. 2000e-2. The court, in making this determination, considered several factors, “including whether the position entails an increase in compensation or other tangible benefits; provides greater responsibility or better job duties; provides greater opportunities for career advancement; requires greater skill, education, or experience; is obtained through a complex competitive selection process; or is otherwise objectively more prestigious.” While Ranger appointments were not formally classified as a promotion because they do not entail a pay increase, they are generally viewed as such within DPS due to the prestigious nature of the Rangers and the duties and competitive selection process entailed. See id. at 5.
The client has the advantage that the position she sought as manager was classified as a promotion within TSA, although in her case, she could not have received marked compensation for this promotion. Additionally, the additional duties entailed of manager make this a desirable option for the client, who has served in the same capacity for many years and no doubt wishes for career advancement based on personal merit.
CONCLUSION:
The client is likely to support a prima facie case for failure to promote based on gender discrimination: As a white female, she qualifies as a protected class under 42 U.S.C. Sec. 2000e-2; she applied for a higher-level position for which she was amply qualified and was not promoted; and someone other than a member of a protected class was promoted instead.
Based on reasoning in the Thomas case, in which a female applicant was able to prove that she met and exceeded the qualifications for a promotion, the client should have no difficulty proving her extrinsic qualifications for the position of manager, leaving only her oral interview in question for a possible reason (Burdine) for Mr. Jones to deny her this position in lieu of a male applicant who was less qualified in other areas. While Alvarado supplied the notion that no written notes on a candidate’s oral evaluation did not directly lend itself to sexual discrimination in cases when a candidate was scored lower than male competitors, given TSA’s history of passing over equally- and better-qualified female applicants for promotion into managerial positions, as well as the anecdotal evidence supplied by the client herself regarding sexual innuendos and remarks made by Mr. Jones that Mr. Brown displayed a more “assertive” (masculine) style, the client’s case becomes far less ambiguous.
It is likely that the position the client was denied is considered a promotion, regardless of the fact that her pay would remain commensurate. Alvarado states that even a position that is considered a lateral transfer with no additional pay raise can be viewed as a promotion if it meets a certain level of prestige, responsibility and opportunity for further career advancement. The managerial position the client sought is clearly classified higher in ranking and meets all other criteria set forth in Alvarado, even though the pay increase would have been minimal.
FROM: Melissa Myer, Paralegal
RE: Smith v. TSA
ISSUE(S):
1. Whether a female plaintiff may establish a prima facie case for sexual discrimination under 42 U.S.C. Sec. 2000e (Title VII) when the plaintiff fails to receive a promotion over a less qualified male who is not considered a member of a protected class.
2. Whether a party receives a promotion under 42 U.C.S. Sec. 2000e (Title VII) when a party applies for a position that is more prestigious but does not include a significant pay increase.
ANSWER(S):
1. A female plaintiff establishes a prima facie case for sexual discrimination under 42 U.S.C. Sec. 2000e (Title VII) when the plaintiff fails to receive a promotion over a less qualified male who is not considered a member of a protected class.
2. A party receives a promotion under 42 U.C.S. Sec. 2000e (Title VII) when the party applies for a position that is more prestigious but does not include a significant pay increase.
FACTS:
Client, Linda Smith, was formerly employed in a supervisory capacity for Texas State Agency (TSA) since 1985. Prior to accepting this position, the client performed similar duties at a county office. The client’s direct supervisor was Deputy Commissioner Richard Jones, who also hired her.
During the client’s tenure at TSA, she received excellent evaluations. She went from a supervisor of 15 to 30 employees, ten of which were inspectors. The client’s section produced 50 percent of TSA’s fines and recovered 50 percent of its fines and compliance agreements from resultant inspections. The client was also named “employee of the year” in 1989.
Recently, the client applied for one of two managerial positions. The client’s salary as manager would have yielded only a slight increase in pay, with the promotion being within a different classification (“manager”). Mr. Jones selected John Brown, who worked as one of the client’s team leaders. Mr. Brown had been employed by TSA since 1988.
When the client asked Mr. Jones for an explanation for his choice, he informed her that Mr. Brown held a four-year degree (the client has an associate’s degree in business) and had an “aggressive style.” (Note: no degree requirements were specified for the managerial position.) Mr. Brown had limited supervisory experience; however, his team’s recovery of fines was the highest in the client’s section. Mr. Jones further stated that the client’s inspections had dropped in fine production (two percent) since 1989. More specifically, he stated to the client that the position would yield an insignificant raise, so “why bother?”
The client gave Mr. Brown excellent evaluations; however, she had expressed concern over his ability to "work as a team member."
Since the time the client joined TSA with six other female employees, four upper level positions had been open, yet none of the females received promotions; two were refused interviews. The client indicates that she and fellow female co-workers had not been invited to attend the same national conferences as male coworkers holding the same supervisory position. Additionally, the client received inappropriate sexual innuendos from male coworkers. While she did not file a formal complaint, she did mention this to Mr. Jones.
After the client was denied promotion, she resigned from TSA, claiming constructive discharge and “humiliation” that one of her male employees was selected over her. The client has received a “right to sue” letter from the EEOC on grounds on gender-based discrimination and has 30 days to file an initial pleading.
DISCUSSION:
To prove a prima facie case of discrimination based on gender, the client must first establish that a prima facie case exists. See McDonnell Douglas Corp. v. Green, 411 U.S. 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the Supreme Court established a four-prong criteria scheme that a party must meet in order to prove that such a case exists. Namely, the party must demonstrate that 1) No promotion was received; 2) the party was qualified for the position sought; 3) the party fell within the protected class at the time of the failure to promote; and 4) either the position sought was filled by someone not within the protected class or that the party was not promoted due to race. See id. at 802.
The client has specified that she applied for a promotion that was not received. Furthermore, based on the client’s statements regarding upper-level management positions at TSA being filled by males, one may assume that the client, a white female, falls within the protected class category and therefore is protected under 42 U.S.C. 2000e-2(1-2), which prohibits an employer from discriminating against an employee with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The two issues left to address, then, are if the client was suitably qualified for the position sought; and if so, if this position constituted a “promotion,” as no substantive raise in compensation would have been given to the client had she received it.
To address the issue of qualifications, we turn to Beverly Thomas v. Texas Dept. of Criminal Justice, 220 F3d 389 (5th Cir. 2000). Plaintiff Beverly Thomas, who had been employed by TDCJ since 1979 in a variety of capacities, including Sergeant of Correctional Officers and Lieutenant of Correctional Officers, applied for a promotion to Captain in December 1996 and January 1997. She failed to receive the promotion on both occasions; instead, three white males were hired to fill these positions. Thomas filed a charge with the EEOC, stating that she had been denied the promotion of Caption “due to discrimination on the basis of race and gender, and retaliation.” See id at 1. A federal trial court found in Thomas’ favor on all counts and issued compensatory damages. A district court entered the final judgment, adjusting the amount of compensatory damages, and awarded back pay based on the salary adjustment and attorney’s fees. TDCJ appealed to the Fifth Circuit court, which applied the reasoning in McDonnell Douglas to ascertain if Thomas’ qualifications were an issue in establishing a prima facie case. See id. at 2.
The position Thomas sought required four years of full-time correctional custody/law enforcement experience, two years of supervisor position experience, one year minimum of mid-level managerial experience, and 30 semester hours from a college or university. Thomas met and exceeded these qualifications. TDCJ argued that the applicants selected had “more mid-level supervisory experience and gave better answers at the interview.” However, during trial, Thomas presented evidence that proved that one of the applicants for the Captain position failed to meet the 30-hour minimum qualification, having only 18 credit hours. The other applicant specified that he had 38 credit hours on his application but received only 32. The court acknowledged “conflicting evidence presented to the jury regarding TDCJ’s failure to promote” and found that Thomas presented adequate evidence to suggest that TDCJ engaged in gender and racial discrimination. See id. at 2.
If we assume that the client is then able to prove a prima facie case for gender discrimination, TSA must provide a legitimate, nondiscriminatory reason for rejecting the client for promotion and prove this by preponderance of the evidence. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 253, 101 S.Ct. 1093, 67 L.Ed.2d 215 (1981). That is to say that the client failed to meet the qualifications set forth for the managerial position that the client sought or that Mr. Brown met these qualifications more precisely.
While Mr. Brown has more credit hours in college, having received a bachelor’s degree, unlike Thomas, there were no minimum qualifications set forth with respect to whether the candidate should have an associate’s degree or bachelor’s degree. Therefore, this factor should be disregarded. In addition to an exemplary track record at TSA, the client has been employed by TSA for three more years than has Mr. Brown. In the Thomas case, TDCJ argued that the candidates promoted had more “mid-level experience” than Thomas, listing this as a factor in their hiring decision. Our client does not have to prove that she has less experience than Mr. Brown; in fact, her years with TSA in a supervisory capacity, including acting as Mr. Brown’s supervisor, indicate that she in fact has more experience in this area. Mr. Jones’ reasoning behind the hiring of Mr. Brown based on his “aggressive style” could therefore be incidental and anecdotal.
This issue was also addressed in Alvarado v. Texas Rangers, 505 F.3d 408 (5th Cir. 2007). After working nine years at the Department of Public Safety in various capacities, including working in the Highway Patrol Division and the Criminal Law Enforcement Division, Juanita Alvarado applied for a Sergeant position with the Texas Rangers, an “elite unit within DPS ... [with] a unique and illustrious history.” See id. at 5. When selecting the top ten candidates for the positions to be filled, Alvarado’s written examination scores and interview score placed her at the twenty-ninth ranking. All of the positions filled were filled by males. See id. at 2. Alvarado was ultimately unable to supply the district court a definitive prima facie case of gender discrimination, and the court granted summary judgment to the defendant. On appeal, the Fifth Circuit Court, which reversed and remanded the findings of the district court, addressed Alvarado’s contention that her oral examination scores were scored lower than that of the male candidates, suggesting possible gender bias. However, the court ascertained that because there were no written marks on the questionnaire presented which indicated the subjective state of mind of the interviewers of Alvarado and the males interviewed, a jury could not determine if indeed Alvarado’s non-selection was based on intentional sex discrimination. Further proof must be rendered by both Alvarado and defendant on the remanded trial. See id. at 6-7.
The second issue to address is whether the client’s failure to receive the position of manager can be construed as a failure to promote, given that this position paid roughly commensurate with her current salary and incentives put together. This too was addressed in Alvarado. The Fifth Circuit Court of Appeals sought to ascertain if a denial of a transfer into a more desirable position (which paid commensurate with Alvarado’s current position) was in fact a denial of promotion and therefore, actionable as an adverse employment action under 42 U.S.C. Sec. 2000e-2. The court, in making this determination, considered several factors, “including whether the position entails an increase in compensation or other tangible benefits; provides greater responsibility or better job duties; provides greater opportunities for career advancement; requires greater skill, education, or experience; is obtained through a complex competitive selection process; or is otherwise objectively more prestigious.” While Ranger appointments were not formally classified as a promotion because they do not entail a pay increase, they are generally viewed as such within DPS due to the prestigious nature of the Rangers and the duties and competitive selection process entailed. See id. at 5.
The client has the advantage that the position she sought as manager was classified as a promotion within TSA, although in her case, she could not have received marked compensation for this promotion. Additionally, the additional duties entailed of manager make this a desirable option for the client, who has served in the same capacity for many years and no doubt wishes for career advancement based on personal merit.
CONCLUSION:
The client is likely to support a prima facie case for failure to promote based on gender discrimination: As a white female, she qualifies as a protected class under 42 U.S.C. Sec. 2000e-2; she applied for a higher-level position for which she was amply qualified and was not promoted; and someone other than a member of a protected class was promoted instead.
Based on reasoning in the Thomas case, in which a female applicant was able to prove that she met and exceeded the qualifications for a promotion, the client should have no difficulty proving her extrinsic qualifications for the position of manager, leaving only her oral interview in question for a possible reason (Burdine) for Mr. Jones to deny her this position in lieu of a male applicant who was less qualified in other areas. While Alvarado supplied the notion that no written notes on a candidate’s oral evaluation did not directly lend itself to sexual discrimination in cases when a candidate was scored lower than male competitors, given TSA’s history of passing over equally- and better-qualified female applicants for promotion into managerial positions, as well as the anecdotal evidence supplied by the client herself regarding sexual innuendos and remarks made by Mr. Jones that Mr. Brown displayed a more “assertive” (masculine) style, the client’s case becomes far less ambiguous.
It is likely that the position the client was denied is considered a promotion, regardless of the fact that her pay would remain commensurate. Alvarado states that even a position that is considered a lateral transfer with no additional pay raise can be viewed as a promotion if it meets a certain level of prestige, responsibility and opportunity for further career advancement. The managerial position the client sought is clearly classified higher in ranking and meets all other criteria set forth in Alvarado, even though the pay increase would have been minimal.
