Employees Have Tough Road In Challenging Promotional Decisions

By Mark Crabtree

A number of recent cases reaffirm the general proposition that suing to obtain a promotion can be an uphill battle for the employee who feels slighted as a result of a supervisor’s decision not to promote. Courts are leery to intervene in an area in which management is still accorded substantial discretion to promote or not promote employees.

For example, in State ex rel. Killingsworth v. George, No. ED 85262 (Mo.App. May 31, 2005), six candidates for the position of fire captain with the City of St. Louis requested a court order directing the Chief to promote them. The City’s Department of Personnel had certified a list of approved candidates for promotion, including the six candidates. The list was set to expire on September 1, 2004, despite the existence of two vacancies in the position of battalion fire chief and eight vacancies in the position of fire captain.

On appeal from a lower court ruling granting an order in favor of the six candidates, an appeals court noted that a court may intervene in the employer’s decision-making “only where there is an unequivocal showing that the public official failed to perform a ministerial duty imposed by law.” The Court went on to review the local ordinance describing the appointment process, which provided that “if no selection is made within the prescribed or authorized period, the certification shall be null and void.” According to the Court, the Chief could, consistent with the local ordinance, exercise appropriate discretion by waiting until the expiration of the appointment period and allowing the list to become null and void.

The bigger-picture component to the Killingsworth decision is that the Court will often go to great lengths to afford management the discretion to promote as it sees fit. A second example of just this sort of deference to management is Ryther v. City of Gahanna, No. 04AP-1220 (OhioApp. May 31, 2005). In Ryther, a policeman for the City of Gahanna, Ohio for over 23 years, filed a complaint against the City after not receiving a promotion to the rank of lieutenant.

An appeals court dismissed the officer’s claim, citing the City’s local rules and regulations concerning the promotion of employees. Rule 6.02 of the City’s civil service rules provided that management could petition the Civil Service Commission to abolish an eligibility list after one year, if it felt it was in the public interest. Pursuant to that authority, in the fall of 1998, management requested that the Commission abolish the 1997 eligibility list, which included the officer. The list ultimately was not abolished; however, a position came open shortly thereafter for which the officer was not selected for promotion.

On review, the Court sidestepped the claim based on violation of the civil service rules and deferred to the parties’ collective bargaining agreement, which specifically incorporated the promotional rules contained in Rule 6.02, and held that the officer’s dispute over the promotion procedure had to be addressed in the context of the grievance procedure set forth in the collective bargaining agreement and not in court.

A strong declaration of management rights is contained in Faison v. Mahoning County Sheriff’s Dept., No. 03-9341 (6th Cir. May 23, 2005). In Faison, the plaintiff, a 24-year veteran of the Sheriff’s Department, filed a charge of discrimination with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission claiming that he had been denied promotion to the rank of captain and that he had been denied a pay increase on account of his race. The plaintiff’s allegations against the Department were that all officers who have ever held the post of jail administrator were white and were promoted to the position of captain, but that there had not been an African-American person promoted to the rank of captain in any job in the Department.

The undisputed facts showed that the plaintiff met the collective bargaining agreement’s criteria for achieving the rank of captain. Thus, Faison presented the Court with not only a situation where an officer felt slighted as a result of the promotional process, but one who also felt the slight was on account of his race. The lower Court rejected the plaintiff’s complaint, finding that the Department had legitimate, nondiscriminatory reasons for not promoting the plaintiff.

The Court also concluded that any failure to follow the collective bargaining agreement was because of political, not racially discriminatory, reasons; and that, ultimately, there was no obligation to promote the plaintiff because the policies of the Department provided that the plaintiff did not need to be promoted to perform his role as a jail administrator. The appellate Court remanded the case for further factfinding, but the conclusion to be drawn from the opinion is clear – promotions in and of themselves are a decision of management that courts are unwilling to intertwine themselves with.

An exception to the general lack of success employees have had challenging promotional decisions deals with the application of a state’s veteran preference statutes. In State ex rel. Slusher v. City of Leavenworth, No. 91,641 (Kan. June 3, 2005), the Court determined that a police sergeant and City police officer had stated a claim for relief, to compel the City Police Department to apply statutory veterans’ preference with respect to their applications for promotions within the Department and to compel the Department to promote them. The Kansas statute provides that military veterans “shall be preferred for appointments and employed to fill positions in every public department.”

The Court concluded that the statute was unambiguous in its application to internal promotions as well as to initial hiring and granted the plaintiffs the relief they sought. As such, there was no room for the exercise of discretion by the Police Department and, therefore, no reason to defer to management under the particular circumstances.

This article appears in the July 2005 issue