Central City makes a promotion--Part C.

Palmer, Steven C. ; Weyant, Lee ; McNary, George W. 等

CASE DESCRIPTION

The primary subject matter of this case concerns the alleged discriminatory employment practices within a governmental agency. Secondary issue examined is the management policies to insure compliance with equal employment opportunity laws. The case also introduces ethical issues that should be discussed. The case has a difficulty level of four, appropriate for upper level undergraduate and graduate students. The case is designed to be taught in three class hours and is expected to require three hours of outside preparation by students.

CASE SYNOPSIS

What is an equal opportunity employment environment? What constitutes illegal retaliation under the 1964 Civil Rights Act? The Central City Police Department faces these questions concerning their recent employment practices. More specifically, what is the department's justification for not promoting the individual whose name is on top the promotion list at the time the promotion is being made? How can an employee with excellent performance evaluations and a clean discipline record not be promoted? Could it be that the individual was a woman? Was the fact the woman had previously filed a sex discrimination lawsuit a factor in the decision? Does the work environment penalize women or people who stand up for their legal rights? Finally, are supervisors and employees appropriately trained and supervised regarding employment discrimination issues?

This case explores the integration of women into a predominately white male work environment. A woman has previously filed an employment discrimination lawsuit against Central City for its discriminatory employment practices regarding women. The city eventually chose to settle the lawsuit rather than go to trial. The settlement is a comprehensive plan to address the issue of sex discrimination. The case picks up several years later when the woman is being considered for promotion. Despite her being the top candidate on the eligibility list at the time, the new police chief decides to pass her over for promotion. There is a new police chief but has the workplace environment changed?

INSTRUCTORS' NOTES

Objectives

This case can be used in a variety of undergraduate and graduate classes. The authors believe that it fits into any of the following courses: Principles of Management, Human Resource Management, Business Ethics, Business Law and Employment Law. The analysis of the case can be from a managerial, ethical or a legal perspective. The case can also be successfully used in Organizational Communications, Leadership and Conflict Management classes.

The learning objectives for this case are:

1. Students should be able to evaluate the necessity for a performance management system.

2. Students should be able to analyze a situation for disparate impact, disparate treatment and retaliatory employment discrimination practices.

3. Students should be able to synthesize managerial alternatives to alleviate employment discrimination and retaliatory practices within the workplace.

4. Students should be able to analyze a situation for potential ethical issues and develop strategies for resolving the ethical dilemmas.

5. Students should be able to recognize organizational communications issues and develop strategies for resolving the same.

RESOURCES AVAILABLE

Students may find the following U.S. Department of Labor and the U.S. Department of Justice resources on equal employment opportunity useful.

http://www.dol.gov/esa/regs/compliance/ofccp/pdf/sampleaap.pdf

http://www.eeoc.gov/

ISSUES PRESENTED

The issues that arise from the lack of proper policies and procedures quickly become apparent in this case. The city lacks a performance management system for the evaluation of their police officers. The city also appears to lack a definitive process for handling complaints of possible illegal discrimination. The city's promotion practices incorporate the goals established in its affirmative action policy and previous court rulings. However, the application of the promotion policies by the current chief administrator may lead to legal problems for the organization.

Disparate Treatment/Disparate Impact/Retaliation

Under law there are two theoretical bases for Title VII legal actions, disparate treatment and disparate impact. Disparate treatment occurs when there is evidence that the discriminatory act was an intentional act based on race, color, sex, national origin or religion on the part of the employer. Under the theory of disparate impact, the discriminatory act was the result of a facially-neutral policy that has an adverse impact on members of a protected class. Statistics are frequently used in establishing disparate impact. The four-fifths rule (sometimes called the 80% rule) is frequently used as the preliminary tool to determine disparate impact. Under this rule, it is expected that members of protected classes will have a success rate that is at least 80% of the majority's success rate on selection devices. If the success rate is less than 80%, then the employer must show that the selection device was relevant to the requirements of the position and that the there was no other devise that could be used to measure, as accurately, the applicants' performance that has a less adverse impact on members of the protected class.

Title VII makes it a separate violation for retaliation regardless if the underlying claim of discrimination proves to be true or not. Title VII provides that it is unlawful to discriminate against anyone for making charges, testifying, assisting, or participating in enforcement proceedings. It is also an unlawful employment practice, under the law, for an employer to discriminate against any employee or applicant for employment because he/she has opposed any practice made an unlawful employment practice or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under Title VII.

Burden Shifting/Prima Facie Case

In disparate treatment cases the plaintiff can prove the case through direct evidence of intent to discriminate. The courts, however, recognized that rarely will there be direct evidence available to prove disparate treatment. Therefore the burden shifting approach was developed. Under this approach the plaintiff must prove the existence of a prima facie case. If successful the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the alleged discriminatory action. After the employer puts forth the legitimate reason, the plaintiff has the opportunity to show that the proffered reason was pretexual.

The United States Supreme Court [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] set forth the requirements for the establishment of a prima facie case in employment discrimination cases. The elements are: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for the position; (3) the plaintiff, despite being qualified, was not hired; and (4) after plaintiff's rejection the position remained open and the employer sought others with the plaintiff's qualifications.

A prima facie;1015;1015 case of retaliation;1018;1018 under Title VII has generally been held by the courts to require a showing that: (1) employee engaged in statutorily protected activity; (2) adverse employment action was taken against him/her; and (3) causal connection exists between two events. Many courts have held that a temporal proximity is sufficient to establish the third element. However, for the most part that temporal proximity has been held to be a relatively short period of time.

Defenses

There are several defenses that an employer can raise in employment discrimination cases. The first defense available is a legitimate, nondiscriminatory reason for the employment decision. The plaintiff can counter this defense if he/she can show that the reason was actually pretext. Another defense is that there is a bona fide occupational qualification (BFOQ) that requires the discriminatory act. Race and color can never be a BFOQ under Title VII. In defense of a claim of disparate impact the employer may argue business necessity. This argument maintains that the policy was a business necessity thus making the policy a legitimate requirement of the job. Employers may also avoid liability under disparate impact even if a particular selection device is discriminatory if the overall process is not. Of course the employer may also prove that the plaintiff's evidence is not truthful or is inaccurate.

Improper Conduct Is Mentioned Throughout The Case

Some actions may individually rise to the level of illegal conduct. Other actions collectively may create a hostile work environment. Students should be able to determine if a hostile work environment exists. To do so, they will have to determine if the conduct is pervasive, abusive, offensive or intimidating workplace.

LEARNING ACTIVITIES

1. Divide the class into groups to answer this question, "Does the city police department have a performance management system?" Each group should develop a one page response for this question. The groups should be given the additional instruction "As you develop your response, consider what are the reasons an organization would, or would not, have a performance management system?" Each group should report their findings to the class. The instructor should use these responses to explore the rationale for performance management systems.

Keeping the students in the same groups, give them this instruction. "You have been hired as a HR consulting firm. The city has asked you to recommend a possible performance management system. As part of your report, the city would like for you justify your recommendation and to provide a sample of the new system." Each group should be given time to write a report with their recommendation and to present their recommendations in class.

2. Divide the class into three groups, plaintiff counsel, defense counsel and jury. Have the two groups representing the respective parties write down all of the points/arguments that they would use to support their client's position. Then each group should present their case to the third group, the jury. After hearing argument from both sides, the jury should decide which party should win and why.

QUESTIONS

1. Does the city police department have a performance management system?

Students need to define the term performance management system. For example, according Mathis and Jackson (1) (p. 328) performance management systems are "composed of the processes used to identify, measure, communicate, develop, and reward employee performances." Using this definition, students could conclude that placing Jones in the "temporary captain" position, the city is trying to develop their employees. However, the city has no apparent processes to address the other elements of the definition.

The city could address these missing elements through the adoption of a performance appraisal system. According to Mathis and Jackson (p. 329), this system is "the process of evaluating how well employees perform their jobs and then communicating that information to the employees." Possible methods for appraising employees include (Mathis & Jackson, 342-350):

* Graphic Rating Scales

* Behavioral Rating Scales

* Ranking

* Forced Distribution

* Critical Incident

* Management by Objectives

* 360[degrees] Systems

2. Does the evidence indicate a prima facie case of retaliation? If so, does Jones have a good case?

In order to establish a prima facie case of retaliation, Jones must show that (1) employee engaged in statutorily protected activity; (2) adverse employment action was taken against him/her; and (3) causal connection exists between two events.

The first element is not difficult to show. Jones filed a federal, class action lawsuit accusing Central City of employment discrimination based on sex in violation of Title VII. It also could be argued that Jones' meeting with Chief Adams regarding the FBI National Academy in which she claimed that Deputy Chief Schmidt was retaliating against her was also a protected activity

There can be little doubt but that Jones suffered an adverse employment action. Jones was passed over for promotion to captain. It also could be argued that her not being sent to the FBI National Academy constituted an adverse employment action. So the real question comes to the third element of the prima facie case.

It is based on this third element, the causal connection, that it might be argued that Jones does not have a strong case. The City will argue that there is no evidence of a causal connection. It has been more than four years since the lawsuit was settled. Four years is too long of a period of time for temporal proximity to be established. The case shows no other evidence of retaliatory intent.

However, it may also be argued that a causal connection can be made based on temporal proximity. Several events could be argued to have created the causal connection:

A. This was the first opportunity the city had to retaliate against Jones in the promotion process. So even if four years had passed, the City could not have retaliated earlier because it was the first opportunity that the retaliatory action could be taken.

B. The meeting that Jones had with Adams constituted a protected activity. The decision making process regarding the captain promotion was within a short window of time after that protected activity.

C. Chief Adams was potentially impacted by the Jones Agreement when his hiring as chief was challenged in court as a violation of the Jones Agreement. That occurred less than six months prior to the captain promotion decision.

D. The Jones Agreement was still impacting policies and decisions being made by the police administration. Its terms had not been completely met and therefore it was in full force and effect. In Title VII law there is a recognition of the concept of continuing violation. Under this doctrine, if any act of discrimination within a continuing practice of discrimination occurred within the statute of limitations period, then all discriminatory acts within the continuing violation are actionable. This same doctrine should be extended to the temporal proximity test of retaliation. Since the Jones Agreement still must be considered in the decision and policy making processes, it is a continuing protected activity.

3. Can an argument be made by Jones that she is the victim of disparate treatment or disparate impact discrimination? How strong is the claim, if there is one?

It is doubtful that a case of disparate impact discrimination would be successful. Disparate impact discrimination occurs when the employer has a policy that appears to be neutral on its face but in practice treats a protected class in an unfair manner. Nothing presented in this case indicates that any facially-neutral policy impacted the captain promotion decision.

An argument may be made that disparate treatment occurred. Disparate treatment is intentional discrimination against a person because they are a member of a protected class. The elements of a disparate treatment prima facie case are: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied and was qualified for the position; (3) the plaintiff, despite being qualified, was not hired; and (4) after plaintiff's rejection the position remained open and the employer sought others with the plaintiff's qualifications. There is no question that Jones met the first two elements. Jones would argue that she was qualified and Central City will argue she was not qualified for the job. However, for the purpose of the prima facie case she did meet the technical qualifications for the position. She had been a lieutenant on the Central City Police department for more than two years at the time she applied, she tested successfully for the position and she was within the top three names on the eligibility list at the time of the promotion. Since Jones, who was on top of the eligibility list at the time, was not promoted, it can be argued that the city continued to seek another candidate.

It can also be argued that there is direct evidence of disparate treatment against Lt. Jones. In the chief's interview as part of the promotion process, it can be argued that an illegal question was asked and was part of the basis for the decision. The chief acknowledged that part of his reason for not promoting Jones was her failure to answer one particular question in the interview. The question was only asked of Jones, and no candidate other than Jones was asked different questions than the other candidates. Also the question itself related to a claim of discrimination that Jones had made previously. Therefore, the asking of an illegal question and basing the decision in part on the lack of answer constitutes disparate treatment discrimination.

Finally, an argument concerning disparate treatment could be made because Chief Adams did not investigate her claim of employment discrimination and retaliation. In fact he testified that he would never investigate such a claim because Jones was simply expressing her opinion. An employer has a duty to investigate claims of illegal actions under Title VII. The failure to do so implicates the employer in any illegal conduct that occurred.

4. If a prima facie case of discrimination is shown, what might the city articulate as a legitimate, nondiscriminatory reason for its decision?

As the attorney for the city I would argue that there were legitimate, non-discriminatory reasons for the hiring decision. Lt. Jones was not qualified to be a captain because she lacked trust and confidence in leadership, she did not demonstrate the ability to meet deadlines, and finally her reactions under stress were questionable. In addition, secondary reasons for her lacking qualifications were demonstrated by her improperly pressuring citizens to write letters of recommendations and her lack of networking with citizens during the open house. In regard to the disparate treatment claim, Central City would also argue that they were not discriminating against women because they promoted a woman to the position.

5. Is there evidence of pretext?

It appears that all of the legitimate, non-discriminatory reasons that the chief has given are pretext. Below is an examination of each reason set forth by Central City for not promoting Lt. Jones:

A. Lt. Jones lacked trust and confidence in leadership: This argument is based the meeting Chief Adams had with Jones regarding the FBI National Academy. Chief Adams says that she challenged his veracity. However, Jones paints a much different picture, with a tape recording to support her position. She will testify that after the point in the conversation that Chief Adams claims he lost trust in her, he started talking about a politically embarrassing issue. If the chief did not trust her, why would he share information that could result in political embarrassment? The chief can give no other incidents in which Jones demonstrated an alleged lack trust or confidence in his leadership. This particular incident involved Jones complaining to the chief that she was being treated illegally by a deputy chief; this would be a protected activity.

B. Lt. Jones did not demonstrate the ability to meet deadlines: Chief Adams based this determination on one assignment issued to Jones while she was acting captain. Adams testified that he did not investigate the circumstances of this incident. He simply blamed Jones for being late. Adams gave the assignment to Deputy Chief Schmidt. Adams did not blame Schmidt for the assignment being late. Likewise, he did not blame the lieutenant assigned to do the task, Wayne Fox. Rather, Adams placed sole blame for the assignment being late was Lt. Jones. Adams also admitted that he never looked at Jones' file to see if she was late on other assignments. He also stated that he did not know, nor cared, if the person who was promoted, Patricia Meyer, was ever late with any assignments.

C. Lt. Jones' reactions under stress were questionable: This finding was based on Jones' inability to answer one question in the chief's interview. Chief Adams could not identify any time in her career that Lt. Jones did not perform under pressure in the field. Another problem with this item was that the question was only asked of her and no other candidates for promotion. None of the other people were asked a meaningful question that was not asked of all the candidates. Regarding the question there is also an argument to be made that the question was an illegal question as it went to Jones' prior claim to Adams that Schmidt had been discriminating against her. It should also be noted that Chief Adams could not answer more than 100 questions in his deposition.

D. Lt. Jones improperly pressuring citizens to write letters of recommendations: The problem with this claim was that Adams admitted that he also included letters of recommendation with his application to be Central City police chief, despite the process not requesting letters of recommendation. Adams tries to justify the difference as Jones' letters were job specific while his letters were in general and not to a particular person or potential employer. Also without talking with any of the people who wrote letters or looking in Jones' personnel file, Adams assumed that Jones put undue pressure on these people to write letters.

E. Lt. Jones did not network with citizens during the open house: First, Adams could not remember whether or not this was a factor in his decision. Even though he made the decision six weeks earlier and the lawsuit was filed immediately after the decision was made. Chief Adams testified that he had no knowledge of Jones' relationship with any of the attendees. Also he did not know what she was talking about with people as she served drinks and cookies.

6. If you were the judge, how would you decide this case? Explain your decision.

(The students' answers to this question will vary.)

EPILOGUE

Although this case has been fictionalized to protect the identities of the people involved, "Central City Makes a Promotion--Part C" is based on a true story. Below is a summary of what happened in the real-life case.

Central City Makes a Promotion Parts A and B outline the circumstances of Jones' protected activities that were the foundation of Part C. Originally, Jones was passed over for promotion to sergeant by Robert White. Jones was number two on the original eligibility list for that promotion and the city was making two promotions. White was 19 on the original eligibility list. Although Jones was successful in temporarily blocking White's promotion, the federal district court extinguished the temporary restraining order after a hearing and the city's assurance that Jones would also be promoted. Central City did promote both White and Jones at the same ceremony, but back-dated White's promotion to the original date White was to be promoted. This meant that White had seniority over Jones. Because in the settlement agreement between Jones and Central City Jones was promoted to lieutenant, the seniority issue became moot.

When the circumstances in Case C arose, Jones, based on state law, asked the state court to temporarily restrain the city from promoting any one before Mary Jones. The judge ruled that there would be no irreparable harm from promoting Patricia Meyer. In the judge's ruling he stated that Jones could be made whole through damages and injunctive relief if she is successful in her lawsuit. The city promoted Meyer.

Jones then filed an EEOC claim, as required by Title VII. The EEOC District Director learned of the pending lawsuit based on state law and administratively dismissed the EEOC claim. In doing so, the District Director issued Jones a right-to-sue letter.

Once the right-to-sue letter was issued, Jones' case was amended to include Title VII claims of disparate treatment and retaliation. Central City removed the amended case to federal court. Shortly thereafter, due to a conflict of interest that had arisen, Jones' attorney had to withdraw from the case. Matlock had represented Jones in the first case. He was extremely well versed in the issues, personalities and nuances of the case. Jones retained new counsel.

The matter went to trial in the federal district court. After the plaintiff's case was presented, the judge granted the city's motion for directed verdict. The judge based his decision on the plaintiff's failure to prove the third element of the prima facie case, a causal connection exists between the protected activity and the failure to promote Jones.

In hindsight Jones stated that her new attorney was not as well versed on her case as Matlock was. This resulted in her new attorney oversimplifying the facts of the case in the presentation of evidence. Jones stated that she wished Matlock had been able to remain on the case because he understood how to present the case to the jury and judge. Rumor has it that Mason also made comments to members of the legal community that Matlock withdrawing from the case made their efforts easier.

THE REST OF THE STORY: Ten years after being passed over for promotion, Jones was a lieutenant preparing for retirement with 25 years of service. Retirement was just six months away. Robert White had become police chief in Central City. Five months earlier, Jones was passed over for promotion to captain a second time. Again Jones was the top name on the list at the time of the promotion. The city, again, dropped down the eligibility list to take another female rather than promote Jones. Again Jones had been an acting captain for three months when the promotion decision was made. By this second occasion Central City had instituted a performance evaluation system. Jones' evaluations were very good. There were no apparent reasons in her records that would indicate that she was not promotable. However, White decided not to promote her. Jones decided not to fight the decision. On this day with about six months left in her tenure with Central City Jones' phone rang unexpectedly. It was Chief White congratulating Mary Jones. He advised her that he decided to promote her to captain.

ENDNOTE

(1) Mathis, R. L., & Jackson, J. H. (2006). Human Resource Management (11th ed.). Mason, OH: South-western

[NOTE: This case is a fictionalized version of a real-life situation. Names and other potentially identifying information have been changed to protect identities. The applicable fact situation is true to the real case.]

Steven C. Palmer, Eastern New Mexico University

Lee Weyant, Kutztown University of Pennsylvania

George W. McNary, Creighton University