Open Mouth. Insert Foot. Lose Case

In one of our most popular pieces (Just. Stop. Talking) we wrote about how even justifiable employment actions can be undermined by improvident or improper remarks about an employee’s protected classification.  Too bad the manager in a recent 10th Circuit decision is not a Minnesota Employment Law Report subscriber.

Anjela Greer, a security guard with the Wichita Art Museum, was one of two applicants for promotion to the job of “Operations Supervisor.” However, Greer was not interviewed for the promotion, which led her to sue the Museum under the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Greer alleged that the Museum’s Executive Director, Dr. Patricia McDonnell, was biased against her because of her continuing service in the U.S. Naval Reserves and that such bias motivated the decision not to advance her along in the promotion process.

Talk is Not Cheap

Greer’s proof of McDonnell’s bias consisted of recollections of various comments that McDonnell allegedly made about her military service, including:

∗ When Greer was called to attend her annual two-week training, McDonnell allegedly asked: “[C]an’t they reschedule that? Don’t they know you have a real job?”

∗ When Greer previously expressed interest in the position of “Weekend Supervisor,” McDonnell allegedly responded: “[Y]ou’re still in the military, military thing, the crap, whatever . . . . [Y]ou’re not going to be considered or promoted or you’re not going to do anything here.”

∗ When a security guard slammed a door into Greer’s shoulder, McDonnell reportedly admonished Greer and said “[B]eing [in the] military, I figured you would be able to handle it.”

Greer further alleged that after she learned that she would not be interviewed for the job, she confronted Olivia Hensley, the employee who screened the applications.  Hensley supposedly told Greer that McDonnell ordered her to leave her “right where she was” and that Greer “wasn’t going anywhere” regardless of how many applications she put in.

The District Court dismissed Greer’s claim, finding that she was not qualified for the job because she lacked the required supervisory experience for the position.  Therefore, no reasonable fact-finder could conclude that McDonnell’s anti-military animus was the motivating factor in the denial of Greer’s quest for this promotion.

Manager’s Word Was Her Bond – And Her Undoing

Greer appealed to the 10th Circuit Court of Appeals, who reversed the dismissal and remanded the case for trial.  The Appeals Court concluded that summary dismissal was improper because a very real question existed as to whether McDonnell’s animus motivated the denial of the promotion.

First, there was a legitimate fact dispute as to whether Greer did in fact meet the supervisory experience requirement for the promotion.  Greer alleged that she was the Museum’s security supervisor for the second shift and that she prepared schedules, approved time off and provided work oversight of the crew members. In addition, Greer stated on her application that she supervised 2 people. Hensley testified that while it was not completely clear if Greer had the requisite supervisory experience, she had discretion in cases of such ambiguity to advance applications to the next stage if she felt that they were deserving.

Since Hensley had the authority to accept debatable applications, a reasonable fact-finder could decide that McDonnell’s feelings about Greer’s military service influenced the Hensley’s decision not to exercise her discretion to process Greer’s submission.  McDonnell’s sentiments about Greer’s military service were well known, and Hensley actually testified that she was in fact influenced by McDonnell’s feelings.

Therefore, the Appeals Court remanded the case back to the lower court so that Greer could have her chance to prove to a jury that she was denied a promotion because of McDonnell’s bias against her military service, not because she lacked the necessary qualifications.

Bottom Line

This could easily have been a simple matter of denying an application because of a legitimate question about whether the minimal requirements were met.  Instead, McDonnell and the Museum snatched defeat from the jaws of victory by openly expressing views that the law says are not proper considerations for workplace decisions.  A reasonable jury could find that such expressions motivated the employer’s decisions.

As is so often the case, the manager in this instance should have Just. Stopped. Talking.