"Because the interim assignments were temporary and not accompanied by higher pay, the person discriminated against may not have had a legal basis or a practical occasion to press a lawsuit. But the victim may discover later that he has been defeated by a discriminatory series of personnel actions that effectively cloaked the identity of the decisionmaker."
Judge Richard D. Cudahy
Where an employer promoted persons who were already serving on an "acting" basis in the positions to which they were promoted, a plaintiff claiming race and age discrimination failed to make a prima facie case, the Seventh Circuit held on Jan. 28.
However, the court suggested that if the appointments to the "acting" positions were discriminatory, the statute of limitations could be tolled until the official promotion.
Mickey Grayson is an African-American man born in 1944. In 1985, he was hired by the City of Chicago as a carpenter in the Department of Public Works.
In early 1995, three job openings were posted, for which Grayson, then age 50, applied: General Foreman of General Trades; General Foreman of Carpenters; and Foreman of Carpenters. At that time, Grayson had been serving as a Sub-foreman of Carpenters (a position identical in all but name to Foreman of Carpenters) for about four years and had been working for the City of Chicago for 10 years.
Grayson had over 25-years experience as a journeyman carpenter, as well as substantial formal training and education. Grayson applied and interviewed for, but did not get, any of the three positions.
Instead, each position was filled by a younger, white candidate. According to Grayson and other witnesses, Grayson was better qualified, had more training and education, and had more seniority than some or all of the men selected for the jobs.
According to the City, each candidate hired was, at the time of the job posting, working in an acting capacity in the positions to which they sought promotion. Thus, the Acting General Foreman of General Trades become the General Foreman of General Trades, and so on.
Grayson sued the City of Chicago in Illinois federal court for age and race discrimination, but the district court granted summary judgment in favor of the City. The court found that, with respect to the Foreman of Carpenters position, Grayson suffered no adverse employment action, because the position was identical to his present position in all but name.
With respect to the other two positions, the court ruled that Grayson was not similarly situated to the applicants who received the promotions because he had not attained their level of experience.
Grayson appealed, but the Seventh Circuit affirmed in a decision by Judge Richard D. Cudahy.
Prima Facie Case
To establish a prima facie case in a failure-to-promote context, the plaintiff must show the following: 1) he belongs to a protected class; 2) he applied for and was qualified for the position sought; 3) he was rejected for that position; and 4) the employer granted the promotion to someone outside of the protected group who was not better qualified than the plaintiff. Johnson v. Nordstrom, Inc., 260 F.3d 727, 732 (7th Cir. 2001), cert. denied 122 S. Ct. 1299 (2002).
What the court held
Case: Mickey Grayson v. City of Chicago, No. 01-2001
Issue: Was summary judgment properly granted to an employer alleged to have discriminated by promoting employees who were already serving on an acting basis in the positions to which they were promoted.
Holding: Yes. The experience in the interim positions provided a nonpretextual reason for promoting those employees over the plaintiff who lacked such experience.
Counsel: Ayesha S. Hakeem, Chicago, for appellant; Meera Werth, Chicago, for appellee.
There was no dispute that Grayson met the first two criteria for each position. However, the court held that, with respect to the Foreman of Carpenters position, Grayson failed to meet the third criteria, and with respect to the other two, he failed to meet the fourth.
Addressing the positions of General Foreman of Carpenters and General Foreman of General Trades positions, the court reasoned, "Grayson did not show that he has held equivalently demanding positions or has had job experience comparable to the successful applicants. Graysons experience as a Sub-foreman of Carpenters is not equivalent to the experience [the successful candidates] have had in serving on an acting basis in the very positions to which they have been promoted."
The court further concluded that, even if Grayson could make out a prima facie case, the Citys reasons for the promotions they made – that the successful candidates were already serving in the acting positions – was a legally sufficient reason that Grayson had not shown to be pretextual.
With respect to the Foreman of Carpenters position, the court found that Grayson easily showed that he was similarly situated to the successful candidate, because both were serving in positions identical in all but name to Foreman of Carpenters.
Nevertheless, the court concluded that, because Graysons position as Sub-Foreman of Carpenters is identical in all but title to the position of Foreman of Carpenters, his rejection was not a materially adverse employment action.
Before concluding, however, the court went on to address hypothetical situations in which a plaintiff could prevail on similar facts, but found that Grayson failed to fit within those situations.
The court stated, "should there be in the future a possible promotion to a clearly higher (with higher responsibilities, salary or benefits) position open to both a Foreman and to a Sub-foreman, an actual promotion, it might well be suspicious if [the City] were to promote based on which one of the two identical positions the applicant held. Such a basis (title only) for promotion would not only be likely to allow a potential plaintiff to meet the fourth element of his prima facie discrimination case …, but would also hint that the earlier denial of a promotion was actually a materially adverse employment action. That is, if the City of Chicago has a habit of distinguishing between promotion candidates in equivalent but differently titled positions, title alone may be more significant than it appears to be here."
Noting that just one year after the rejection of the promotion, Grayson actually was promoted to Foreman, however, the court found no basis for such an inference.
A second hypothetical addressed by the court concerned where promotions are made based on experience gained through interim assignments, which were in turn made on a discriminatory basis.
The court noted, "because the interim assignments were temporary and not accompanied by higher pay, the person discriminated against may not have had a legal basis or a practical occasion to press a lawsuit. But the victim may discover later that he has been defeated by a discriminatory series of personnel actions that effectively cloaked the identity of the decisionmaker."
The court stated, "At the very least, such a plaintiff would have the opportunity to plead his set of apparently related actions and ask us to treat this series as a continuing violation or perhaps request equitable tolling."
However, the court found that Grayson presented no evidence that his situation fell within this hypothetical, either. Accordingly, the court affirmed.
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