Over the next 4 years, Chambers pursued an "informal method" of promotion with HHS: the creation of a higher-graded vacancy with the same responsibilities as her current job. Chambers' supervisor told her that he supported such a promotion, but that he lacked authority to create a new position--that could only be done by his superiors. He then told Chambers he would ask for such a position to be created.
When no vacancy was created, Chambers met with her supervisors to vent frustrations and then she filed a complaint with the EEO office at HHS alleging that she had been denied promotion in October 2011 because of her race and disability. Chambers claimed that at the same time she had been told that HHS lacked the funds to create her position, the agency created positions to promote three white, sighted department heads from a GS-14 to a GS-15 pay grade and had created a new GS-14 network security position. She also asserted that the other Section 508 Coordinators elsewhere in HHS were paid at a higher grade than she was, despite serving smaller divisions. In an attempt to resolve Chambers' EEO claim, the parties agreed to an expedited desk audit, but the audit concluded that Chambers' job was properly classified at the GS-9 level.
District Court Decision
Chambers filed suit in district court alleging that she was not promoted to a GS-11 level because of her race and disability in violation of Title VII and the Rehabilitation Act. The district court granted summary judgment to HHS, reasoning that an employee could not suffer a cognizable adverse employment action when the position she sought did not exist and when her supervisor lacked authority to create it. Chambers appealed and the Court of Appeals for the District of Columbia affirmed, but on different grounds.
D.C. Circuit's Decision Affirming
The D.C. Circuit affirmed the district court's granting of summary judgment, but on different grounds. The Court stated that the "district court was right that Chambers must show that she suffered a cognizable adverse employment action to prevail under Title VII and the Rehabilitation Act," and that "Chambers attempts to meet this burden by arguing that Curtis (her supervisor) failed to ask his supervisors to create a new GS-11 Section 508 Coordinator position. This failure, in her view, amounted to the denial of a promotion."
HHS argued that denial of promotion is an adverse employment action but it is only cognizable if a vacancy for a desired position already exists. The district court agreed with this argument, but the DC Circuit held that, "there is no such categorical rule in our case law. Instead, we affirm the district court's grant of summary judgment to HHS on a different ground: Chambers did not produce evidence from which a reasonable juror could find that she was denied the promotion because of her race or disability."
The DC Circuit found HHS' and the district court's logic fundamentally flawed with respect for the need for there to be a position in existence for a denial of promotion to occur:
The government argues that the lack of a vacancy dooms her claim. We disagree. We have recognized that claims alleging an unlawful denial of promotion come in at least two forms: the denial of a promotion to a vacant position and the denial of an increase in pay or grade. ... Precedent makes clear that employees who pursue, and are denied, pay or grade increases can still suffer a materially adverse employment action. Chambers advances this type of claim, and she did not need to identify an available vacancy to survive summary judgment.Thus, the DC Circuit held that Chambers' failed to show that she was denied her promotion because of her race or disability. Chambers claimed that she was the victim of unlawful discrimination because her supervisor did not request the creation of a GS-11 position from his superiors. However, the Court found that no reasonable juror could find that her supervisor contributed to the agency's inaction and that her supervisor routinely supported Chambers and treated her quite favorably. The Court also noted that a reasonable juror could not conclude from the record that Chambers' supervisor's supervisor denied the request for the GS-11 position because of Chambers' race or disability because he did not know who was asking for the GS-11 position as a promotional opportunity.
This approach avoids creating an unacceptable loophole in our antidiscrimination law.
The case is Chambers v Burwell, DCCir, May 31, 2016, Griffith, T.