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The Court of Appeals for the District of Columbia Circuit Holds that a Failure to Promote to a Non-Existent Position Can be a Materially Adverse Employment Action

Yarelyn Mena

On May 31, 2016, in Janean E. Chambers v. Sylvia Mathews Burwell, the Court of Appeals for the District of Columbia Circuit held that an employee may suffer an adverse employment action where an employer refuses to promote the employee to a non-existent position. Janean Chambers—a longtime, legally blind, Black employee of the U.S. Department of Health and Human Services (“HHS”)—filed a complaint alleging race and disability discrimination in violation of the Civil Rights Act of 1964, Title VII, and Rehabilitation Act against the HHS after HHS denied her several requests for promotions.

In 2006, HHS promoted Ms. Chambers to management analyst. In 2007, she applied for a another promotion; however, her supervisor, Michael Curtis, informed her that her position was capped at the current pay level and that she could apply for other positions within HHS of a higher pay level or request a “desk audit” to demonstrate that her skills warranted a higher pay level. Ms. Chambers instead decided to continue working in her position and sought an “informal” promotion by requesting the creation of a higher pay level vacancy with the same responsibilities as her current position, which HHS commonly granted. Mr. Curtis supported Ms. Chamber’s efforts but advised her that he did not have the authority to create a new position.

In 2011, Ms. Chambers had a meeting with several supervisors to inquire about the creation of a position; however, due to budgetary constraints, HHS could not create the position. HSS had recently, despite the purported “budgetary constraints,” promoted three white, non-disabled employees. Ms. Chambers filed a complaint alleging race and disability discrimination.

The District Court granted summary judgment to HHS, dismissing Ms. Chambers’s claims, reasoning that an employee cannot suffer an adverse employment action—a necessary element of an employment discrimination claim—due to a failure to promote where the position did not exist at the time of the application. The Court of Appeals, however, disagreed, stating that there is no such rule that an adverse employment action goes unrecognized solely because the position sought does not exist. The Court of Appeals held that there are two ways to show adverse employment action in failure to promote cases: an employer actually denied a promotion to a vacant position or denied an increase in pay or grade. The court reasoned that an employee who applies for and is subsequently denied a pay or grade increase, suffers materially adverse employment action, and the additional burden of identifying an available position ignores the reality that employers informally promote employees by raising their pay or grade, which constructionally promotes them to a “non-existent” position. Nonetheless, the Court of Appeals did agree with the district court’s ultimate conclusion, finding that Ms. Chambers did not provide sufficient evidence that a reasonable juror could find that she was denied promotion due to protected characteristics.

If you think you have been denied a promotion due to discrimination, contact The Harman Firm, LLP.

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