Both public and private employers should take note of a recent decision by the Sixth Circuit Court of Appeals that rejected a disgruntled employee’s contention that she was denied promotion because of a “perceived disability.” The court’s analysis in Echols v. Kalamazoo Public Schools, 2012 U.S. App. LEXIS 25509 (6th Cir. 2012) not only provides helpful legal guidance, but also gives practical suggestions on how to handle the promotion process.
Facts of the Case
The plaintiff, Charmaine Echols, began working for the defendant, Kalamazoo Public Schools (“KPS”) as a classroom teacher during the 1978-79 school year. Ten years into her tenure, she was involved in a car accident that resulted in a closed-head injury, preventing her from completing the 1988-89 school year and contributing to a leave of absence in 1993. Echols successfully returned to her position, and was later promoted to and served as the Principal of Northglade Elementary in August 1997.
Following complaints from parents and staff, falling test scores, and departures by students and employees, Echols was demoted in early 1999. Echols filed a grievance, alleging that “someone at the union” informed her that her demotion was due to her injury, and KPS resolved her grievance by offering her to transfer to an Assistant Principal position at the same salary. For the next ten years, Echols worked at three different schools as Assistant Principal until all the Assistant Principal positions were eliminated in June 2010. Echols then became a Leadership Coach, a position she still holds.
Echols filed a lawsuit against KPS in the Western District of Michigan alleging that she was denied promotion to four different positions over a year and one-half period from May 2008 through September 2009. KPS’s promotion process began with an initial determination by Mary Weber, the Assistant Superintendent of Human Resources, to determine who met the minimum qualifications for the position. Weber then scheduled initial panel interviews for the qualified applicants. Weber determined that Echols was qualified for three of the four positions, finding that Echols lacked the requisite Master’s Degree required for one of the positions.
For each of the three remaining positions, Echols participated in the second step in the three step KPS promotion process – a 30-minute panel interview. Each candidate selected for the 30-minute interview was asked the same predetermined questions in the same sequential order. Weber acted as the facilitator and timekeeper for all the interviews, and forwarded the feedback forms to the ultimate decision maker, Superintendent Dr. Michael Rice. Rice then selected candidates for a final round of interviews to be conducted by himself and another supervisor. Rice ultimately made the final hiring decisions for all of the promotions at issue.
Although Echols participated in three of the panel interviews, she did not advance to the second round for any of these positions.
Echols pointed to Weber’s actions as her proof of discrimination. During one of the interviews, Weber asked Echols whether she was referring to any “notes” while answering questions. Echols contended that this showed a perception that she would not have answered as well without notes because of her prior closed-head injury.
As further proof of discrimination, Echols pointed to a follow-up conversation with Weber. After the last unsuccessful interview, Echols approached one of the panel members for feedback and was referred to Weber pursuant to KPS’s protocol. During this meeting, Echols contended that Weber showed Echols her separate medical file, and suggested that Echols’ disjointed and fragmented interview responses may have been a result of her closed-head injury. Weber, of course, denied Echols’ account. Weber also testified that she did not know Echols had a closed-head injury at the time of the interviews, but only learned that after-the-fact in meeting with Echols. Weber also testified that she was a non-decision maker with regard to the promotion process.
The Court’s Ruling
On appeal, Echols first argued that the trial court erred by rejecting her claim that she had “direct evidence” of discrimination. First, Echols claimed that one or more of the panel interview members must have known about her closed-head injury because “they were around when the accident occurred.” The Court, however, quickly rejected this argument, finding the mere fact that some of the panel members were employed by KPS some 20 years before did not support an inference that they knew Echols suffered a closed-head injury, much less that they perceived her to be disabled as a result of it.
Next, Echols pointed to her conversations with Weber after the interview process. The Sixth Circuit rejected this claim since Echols could not produce any evidence to contradict Weber’s testimony that she knew nothing about Echols’ accident or closed-head injury during the interview process where the panel members ranked Echols too low to advance to the next stage of the promotion process. Furthermore, Echols could not dispute the testimony from the panel members that Weber never offered her opinion about Echols or any of the other candidates. Thus, the Sixth Circuit found that the trial court properly dismissed this claim before going to trial since no reasonable jury could conclude from the evidence that KPS’s decision to hire other candidates was influenced by discrimination based on a perceived disability.
The Sixth Circuit then addressed Echols’ argument that the trial court erred in rejecting Echols’ claims that enough circumstantial evidence of discrimination existed to require the trial court to at least allow a jury to decide her claims. Weber testified that she did not know about the injury at the time of the interviews, and saw the medical file for Echols for the first time during her meeting with Echols following the interview process for all of the positions. Based on this timeline, the Sixth Circuit found that the trial court did not make any error in refusing to infer that Weber was aware of Echols’ injury. The Sixth Circuit also found it significant that Weber was not the decision maker with regard to the promotion process for any of the positions.
Regardless, the Court concluded that even if Echols had made a preliminary case of discrimination, KPS had put forth a legitimate, nondiscriminatory reason for not selecting Echols based on the performance of the other candidates who were better than Echols during the interview process. The panel members independently ranked the other candidates higher, and Rice (the decision maker) evaluated the rankings and independently made the final decisions. By making this showing, KPS would have put the burden back to Echols to prove that KPS’s explanation was not legitimate, but rather a cover up for its discrimination against her perceived disability.
Again, Echols pointed to her meeting with Weber to argue that KPS’s rationale was not legitimate. Again, the Court rejected Echols’ arguments, finding there simply was no evidence to suggest that Rice’s final decisions were at all affected by Weber’s involvement. Rice had the authority to interview any candidate that he single-handedly chose. Rice, however, simply found the other candidates better suited for those positions, and his decisions were supported by each panel member who also testified that Echols was not their top candidate.
KPS benefited from a systematic approach to its promotion process that helped reduce risk of an after-the-fact attack that its decisions were based on discriminatory motives. First, the School System was smart to keep a separate medical file apart from the personnel file. The Americans with Disabilities Act’s regulations require that all employers keep medical information separate from the regular personnel files, and limit access to those records only to those with a need to know that information. Unfortunately, many employers are unaware of this requirement.
If the medical information is in a personnel file, and the personnel file is reviewed by a supervisor prior to making an employment decision (such as a request for promotion), then a plaintiff’s lawyer can argue that the supervisor was aware of, and perhaps motivated by, knowledge of the alleged disability. In this case, Weber and the School System benefited since the personnel file did not contain the medical information relating to Echols’ accident and resulting closed-head injury. This simple process made it difficult for Echols to “connect the dots” between her closed-head injury and KPS’s decision not to promote her.
KPS’s process for vetting its promotional applications also provided further insulation to attacks on the process. First, the office with the most likelihood of being aware of the prior injury – the human resources office – was limited to simply making a determination regarding whether the applicants met minimum qualifications for the position. Either the applicants met the criteria, or they did not.
The panel interview approach, coupled with using the same predetermined questions and 30-minute time limit for each candidate, further insulated KPS from claims that the decisions were discriminatory. Again, Echols simply could not “connect the dots” between her claim that KPS perceived her to have a disability, and Rice, the ultimate decision maker. Processes such as these will provide protection on the back end in case your decisions are ever challenged.