Ms. Roberson-King began working for the State of Louisiana as an eligibility examiner with the Office of Family Support in November 1989. She was promoted to Fraud Investigator in August 1993. She transferred to LRS in April 2001, initially as a Rehabilitation Counselor. On April 8, 2013, LRS promoted Ms. Roberson-King to Rehabilitation Counselor Master. (See Ex. 3, Ms. Roberson-King’s application for promotion to district supervisor, an exhibit to her affidavit).
LRS unlawfully passed Ms. Roberson-King over for promotion to the position of LRS District Supervisor based on her race, African-American, in favor of a less-well-qualified white candidate. On October 16, 2014, LRS Regional Manager John Vaughn announced the selection of Mara Lott Patten, Caucasian female, for promotion to the position of LRS District Supervisor. (Ex. 3, announcement attached as part of grievance, to Ms. Roberson-King’s affidavit). The selection of Patten was unlawfully based on discrimination against Ms. Roberson-King based on her race, African-American.
In discriminatory denial of promotion cases, Title VII prohibits an employer from discriminating against an employee with respect to “compensation ,terms,conditions or privileges of employment” because of race. 42 U.S.C.§ 2000e-2(a) (1). Terms and conditions of employment include the opportunity to obtain promotions. See Munoz v. Orr, 200 F. 3d 291, 299 (5thCir.2000). In our recent case, the plaintiff alleged that her employer discriminated against her on the basis of her race in failing to promote her to District Supervisor over rehabilitation counselors at Louisiana Rehabilitation Services, a division of Louisiana’s Office of Workforce Development. The Fifth Circuit has applied the McDonnell Douglas framework when examining such claims. Chim v. Univ. of Texas, 836 F.3d 467, 470 (5 Cir. 2016). To succeed on a failure to promote claim, a plaintiff must ultimately show that (1) he belongs to a protected class; (2) he applied for and was qualified for a position for which applicants were being sought; (3) he was rejected; and (4) a person outside of his protected class was hired for the position. Burrell v. Dr. Pepper/SevenUp Bottling Grp., Inc., 482 F.3d 408, 412 (5 Cir. 2007). LRS conceded that the plaintiff had established her prima facie case. “If he makes that showing, a presumption of discrimination arises, and the employer must articulate a legitimate nondiscriminatory reason for the adverse employment action.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5 Cir. 2016). The burden then shifts back to the plaintiff “to produce evidence from which a jury could conclude that the employer’s articulated reason is pretextual.” Id. “A plaintiff may show pretext either through evidence of disparate treatment or by showing that the employer’s proffered explanation is false or unworthy of credence.” Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378-79 (5 Cir. 2010). “An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action.” Laxton v. Gap Inc., 333 F.3d 572, 578 (5 Cir. 2003). “In the context of a summary judgment proceeding, the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext.” Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 646 (5 Cir. 1985). LRS’ alleged “legitimate nondiscriminatory reason” for not promoting Ms. Roberson-King was “because she was not the most competitive candidate for the position” due solely to her possession of the Certified Rehabilitation Counselor designation, which is not a requirement for the position, nor was it identified as “desired” or “preferred.” The Supreme Court has recognized that evidence of a plaintiff’s superior qualifications may establish pretext. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456-57 (2006) (per curiam). In Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc., 482 F.3d 408, 412 (5 Cir. 2007), the Fifth Circuit recognized that a plaintiff may prove pretext by showing that he was “clearly better qualified than the person selected for the position.” See also Runnels v. Texas Children’s Hospital Select Plan, 167 F3d.Appx. 377, 383 (5 Cir. 2006) (applying the “clearly better qualified” standard); Lara v. Kempthorne, 673 F.Supp.2d 504 (S.D. Tex. 2009) (same).
To be sure, this is a supervisory position, and it requires supervisory experience, a history of success, and leadership skills. Ms. Roberson-King was far better qualified than Patten to be promoted to LRS District Supervisor.
Employment: Both were currently employed as Rehabilitation Counselor-Masters (“Master Counselors”). Patten’s application reflects that she had been a Master Counselor since 2008, in contrast to her deposition testimony, in which she testified she became a master counselor in 2011.
Education: Both had Master’s Degrees, but Ms. Roberson-King had earned an additional 15 hours of graduate credit in Assistive Technology, related to the provision of AT devices and services provided to LRS consumers (hearing aids, wheelchairs, home and vehicle modifications, etc.).
Seniority with state and LRS: Ms. Roberson-King had worked for the state of Louisiana since 1989 and with LRS since 2001; Patten had worked for the state and LRS since 2008.
Supervisory Experience: Ms. Roberson-King had supervisory experience, having been a First Sergeant of the 917th Medical Squadron, and then retired from the U.S. Air Force Reserves. While working in the Air Force Reserves for more than 20 years, Ms. Roberson-King supervised approximately ten enlisted personnel assigned to the 917th Medical Squadron. Patten’s supervisory experience was limited to supervising one rehabilitation counselor associate, Deviona Newsom, for about two years.
The decision maker, Vaughn, testified that he was previously selected over Bertha Gray for the district supervisor position notwithstanding Gray’s greater seniority with LRS, because he “had previous supervisory experience.” This supervisory experience was with a manufacturing company, AFCO Metals, and another named TSE International, and he had no supervisory experience working in LRS. Despite this testimony, Vaughn astonishingly testified initially that he considered that neither Ms. Roberson-King nor Patten had more supervisory experience than the other. Later in the deposition, Vaughn testified he was familiar with Ms. Roberson-King’s extensive supervisory experience within the military for many years before she applied for the district supervisor position; this time he changed his previous testimony to state that he took into consideration Ms. Roberson-King’s supervisory experience, and his knowledge of Patten’s lack of supervisory experience outside LRS, in making his decision.
Leadership Academy: LRS had a program known as Leadership Academy, described by Vaughn as “a program in which individuals could take training or be prepared to move up in promotional– move up in promotional opportunities within the agency.” He regards it as training in leadership skills and abilities. He knew that Ms. Roberson-King had been selected for and attended Leadership Academy. Vaughn also knew Patten had not been selected for or attended Leadership Academy. Vaughn testified that the focus of the Leadership Academy was not on the field of rehabilitation counseling, but in leadership training to gain leadership skills so that one could be a leader and supervise others. Vaughn stated that he counted Ms. Roberson-King’s Leadership Academy credential in her favor, and that doing so would be legitimate, given that he was looking for a supervisor and not just a rehabilitation counselor to be the district supervisor.
Production quotas: In LRS’ position statement submitted to the United States Equal Employment Opportunity Commission, LRS submitted “VR Performance Statistics,” which LRS also attached to Vaughn’s affidavit and which he discussed in his deposition. In his affidavit, Vaughn states, “The Closed-Rehab Objective is the factor/statistic that is directly referred to on the employees’ Performance Evaluation System (PES). It is the primary goal of LRS as it is the most measurable way to show that LRS is making effective use of funds and resources to actually put people to work.” The identical language appears in LRS’ Position Statement. Patten testified that the closed rehab objective is the most important because it tells how many people have been employed at least 90 days.
Vaughn acknowledged in his deposition that some of the numbers provided by LRS in its position statement to the EEOC are incorrect. He has not alerted the EEOC that the information that he provided is incorrect. LRS submitted a chart showing the original, incorrect numbers sent with the position statement alongside the accurate numbers for each relevant year.
In the year before the promotion process, Ms. Roberson-King achieved 104% of her closed-rehab objective; Patten achieved only 38%– less than half– of her production quota. In the year before that, Ms. Roberson-King achieved 125% of her closed-rehab objective, while Patten achieved 92%.
In an apparent attempt to make the numbers appear less lopsided, LRS prepared and examined less relevant performance statistics charts going back to the reporting year 10/1/08-9/30/09, which was the beginning of Patten’s employment. Clearly, it was impossible, due to Ms. Roberson-King’s relative seniority, to compare Patten’s records to Ms. Roberson-King’s records before that year. Even upon examining all years since Patten began employment with LRS, the actual numbers favored Ms. Roberson-King. On average, she achieved 94.67% of her closed-rehab objective, while Patten achieved 91.17% of her closed-rehab objective.
CRC: Patten had a Certified Rehabilitation Counselor certification. Vaughn explained that CRC is a national certification for rehabilitation counselors, requiring a certain level of education and then ongoing continued education to maintain the certification. He testified that the certification is not about supervision of employees or about management or about leadership training or gaining leadership skills. Patten testified that the CRC addresses primarily skills and competencies related to rehabilitation counseling and not to supervisory skills and those related to supervising other persons. York stated the CRC “basically says that you’ve acquired a certain amount of knowledge and skill as it relates to the delivery of services and to individuals with disabilities especially as it relates to rehabilitation. . . . I would imagine that theories of counseling, medical aspects of disability, those kinds of things.”
Ken York: LRS would make much of the fact that Ken York, LRS Assistant Director, was African American. In fact, York testified that he could not recall discussing with Vaughn the relative amount of supervisory experience between Patten and Ms. Roberson-King, and that relative seniority would be a relevant consideration, as well as supervisory experience, but he could not recall discussing those issues with Vaughn and was not aware of Ms. Roberson-King’s extensive military supervisory experience, nor could he recall discussing the fact that Ms. Roberson-King carried a specialty case load, which he stated would have been a relevant consideration, and he did not recall discussing production quotas, which he stated would have been a relevant consideration. York did not discuss with Vaughn the fact that Ms. Roberson-King had been selected for and had attended the Leadership Training Academy and Patten had not. York did not undertake any kind of a comparison or analysis of Patten’s qualifications vis-a-vis the other candidates, stated that this was not his role, and testified he could not recall ever not accepting a recommendation from one of his managers for a promotion. York testified that Martin had never failed to support a recommendation from him, nor could he recall Moore rejecting a recommendation that came to him from Martin.
Mark Martin: Martin, LRS Director, was out on extended sick leave at the time of the promotion process, and had no input into the selection of Patten. Martin testified that after he returned, Moore, the appointing authority was trying to re-do the promotion process, but he understood that such was not possible because of Civil Service and its rule preventing removal of someone out of a classified Civil Service position.
Ms. Roberson-King’s Grievance: Ms. Roberson-King filed a grievance concerning Vaughn’s selection of Patten to the position of LRS District Supervisor, pointing out many of the points made here and discussing white employees who had previously been promoted to district supervisor without the CRC credential, among other things.
Bryan Moore: LRS also seeks to capitalize on the fact that Moore was African American. On December 2, 2014, Moore, LRS’ “appointing authority,” wrote to Ms. Roberson-King in response to her grievance regarding the selection of the district supervisor position in the LRS Shreveport Regional Office, alleging race discrimination. Moore stated, “After careful review of your grievance, the decision has been made to overturn the selection process. This means that the position will be announced again and all interested persons will have to re-apply. . . . The individuals selected for interview will be scored according to objective criteria with established benchmarks.” Moore also promised “a thorough investigation” regarding Ms. Roberson-King’s allegations of race discrimination. Moore testified that he advised Ms. Roberson-King that he was rescinding Patten’s promotion “in order to try to stop the process, to look more deeply into it to find out if in fact everything was done clean and above board.” Later, however, in a March 5, 2015, letter to Ms. Roberson-King, Moore stated, “in my letter to you dated December 2, 2014, I informed you that I had made a decision to overturn the selection of Mara Lott and re-announce that position. At the time that I signed that letter, I was advised and understood that I had the authority to rescind the appointment of Ms. Lott; however, I have been advised and now realize that I do not have that authority.” Moore testified, “I did make an attempt to pump the brakes, if you will, on this decision until such time that I could have some comfort level. People were going to go down to Shreveport and take a closer look at what’s going on. As I stated earlier, I take these types of allegations seriously.” He testified that later it was conveyed to him from Human Resources that he lacked authority to un-do the promotion process. He testified that once he discovered that there may have been some mistake or unfairness he tried to rescind the promotion, he was unable to do so.
Moore testified that he did not compare the qualifications of Patten and Ms. Roberson-King before approving the recommendation of Patten, and after the recommendation he became aware, through Ms. Roberson-King’s grievance, that approving the recommendation may not have been the appropriate course to take. A comparison of the qualifications did take place after Ms. Roberson-King’s grievance. Moore tried to rescind the promotion so there could be some investigation and an increased comfort level for everyone, but to no avail. There was no rescission of the promotion and no ultimate possibility of reversing the process.
The appointing authority of LRS himself sought to rescind Patten’s promotion based on a comparison of the relative qualifications of Patten and Ms. Roberson-King. He was unable to do so, however, as he was advised by Human Resources that he lacked such authority. This case would seem to present genuine disputes of material fact as to whether Ms. Roberson-King was unlawfully discriminated against based on her race in LRS’ decision to promote Patten over her to district supervisor.