Failure to apply for vacancy does not bar discrimination claim where record fails to show employer had clear promotion procedures

Law Reporter, Oct 2002

Lockridge v. Board of Trustees of Univ. of Ark., 294 F. 3d 1010 (8th Cir. 2002).

The Eighth Circuit Court of Appeals held that a college professor who was not promoted after he failed to apply for an advertised vacancy could sue for race discrimination where the record fails to show that the school had estabfished clear promotion procedures.

Here, an African-American college professor filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that he was discriminated against when he was not promoted to a dean's position. The EEOC determined that his claim was not supported, in part, because he had not applied for the position, which the college advertised on the college e-mail system and in newspapers. The professor sued the college and others, alleging race discrimination. The trial court rejected defendants' motion for summary judgment, finding that fact questions existed regarding defendants' promotion policies and practices that made it uncertain plaintiff's failure to formally apply for promotion was fatal to his claim.

Affirming, the Eighth Circuit noted that to establish a prima facie case of discrimination in a failure-to-promote case, employees generally must satisfy certain prima facie elements, including proof they applied for a promotion.

Here, the court found that plaintiff had satisfied all the prima facie case requirements except the application requirement. Nevertheless, the court said, a plaintiff's failure to formally apply for a position may be excused in certain circumstances, including where an employer has failed to establish a clear personnel procedure for promotions. In addition, under Watson ro. National Linen Serv., 686 F.2d 877 (11th Cir. 1982), an employer's failure to establish clear promotion procedures may itself be direct evidence of discrimination.

Here, the court found that the record indicated the college used a variety of procedures for hiring and promotions that demonstrated a seemingly subjective process. The court noted that after plaintiff formally applied for a position in 1988, he was told that he would be notified when the school decided to fill the position. He said the school never advertised the position but hired a white applicant four years later. Plaintiff also alleged that a less qualified white applicant was hired for an unposted associate dean's position and, when plaintiff formally applied for that position when it reopened about five years later, he was again rejected in favor of a white applicant. The court also cited evidence that the school had promoted an associate dean to a deanship for which she had not applied.

Under these facts, the court said, plaintiff has raised fact questions regarding the manner in which the school hired and promoted faculty members, which positions were announced as vacancies, whether everyone was required to apply for promotions, and the time limits between vacancy announcements and application deadlines. Because a jury could find that the manner in which defendants handled these matters was direct evidence of discrimination, summary judgment was inappropriate, the court said.

Plaintiff's Counsel

John W. Walker, Little Rock, Ark.

Robert Pressman, Lexington, Mass.