If an employment discrimination case makes it way to a jury, and a jury finds discrimination and damages in favor of an employee, reversing that result on appeal is an uphill battle. A recent Nebraska Supreme Court case involving Metropolitan Utilities District of Omaha (MUD) and allegations of sex discrimination in the denial of a promotion illustrate this point.

Background
Plaintiff Kristina Hartley was a long time employee of MUD. She had a bachelor’s degree and began in customer service at MUD in 1984. She was promoted in 1986, 1988, 1991, and in 1994 to senior engineering technician. After sixteen years in that position, she applied to become supervisor of field engineering. The position was open to current MUD employees via an internal job posting. The position involved planning, directing, and supervising the work of 17 field engineering and utility locator personnel of the plant engineering division.

The position required two years of college in an area related to engineering and utility locating experience in the last five years, preferably in an ongoing capacity. This posting was the same as a previous posting for the same position in 2003 except that the utility locating experience in the last five years was a new requirement. Stephanie Henn, Senior Plant Engineer, added the new requirement and made the decision of who to promote to supervisor of field engineering. She had been Hartley’s direct supervisor for many years. Shortly before Hartley applied for the supervisor position, Henn was a promoted and a new direct supervisor was put in place over Hartley and others. Hartley applied to be supervisor of field engineering. Ten other people applied, two of whom were female.

The promotion was awarded to a male colleague, David Stroebele. Hartley’s discrimination claim proceeded to trial and the details of how the promotion was awarded to Stroebele over Hartley and the other two female applicants were put before a jury. The jury found in favor of Hartley, awarding her $61,293 in special damages and $50,000 in general damages. After trial, the court awarded Hartley attorney’s fees of $56,800.

On appeal
MUD appealed to the Nebraska Supreme Court, which was tasked with answering whether sufficient evidence supported the jury’s verdict. The familiar McDonnell Douglas standard applied to Hartley’s case. She had to first establish a prima facie case of discrimination in the failure to promote her by demonstrating: (1) she was a member of a protected group, (2) she was qualified for and applied for a promotion to an available position, (3) she was rejected, and (4) a similarly situated employee, not part of the protected group, was promoted instead.

When an employee establishes these elements, an employer may try to rebut the prima facie case by producing “clear and reasonably specific” admissible evidence that would support finding that unlawful discrimination did not cause the denial of the promotion, i.e., by articulating a legitimate, nondiscriminatory reason for the decision.

Upon providing such a reason, a jury must decide whether the employer acted because of the protected characteristic (here, Hartley’s sex) despite the employer’s proffered reason. In other words, is the employer’s reason a pretext for unlawful discrimination in making the decision not to promote? If so, “[t]he trier of fact can infer that ‘the employer is dissembling to cover up a discriminatory purpose.’”

The first two steps were met in this case: Hartley established a prima facie case and MUD offered a legitimate, nondiscriminatory reason. Its proffered reason was that Stroebele was the better qualified candidate compared to Hartley. Hartley’s new direct supervisor and her prior supervisor, Henn, had expressed issues with her communication skills on a review just before she applied for the supervisor position. Also, they claimed she lacked the five years of locator experience needed for the position. The question on appeal was whether there was sufficient evidence for the final step: were MUD’s reasons pretextual? The evidence was sufficient, according the Nebraska Supreme Court. It recited the following evidence that the jury had before it:

Hartley worked at MUD twice as long as Stroebele.
She had supervised his work.
She had more supervisory experience than him.
She had the requisite skills at locating, though not within the past five years.
She had no “chargeable hits” in locating, but Stroebele did in recent years (showing her locating skills were more accurate).
She had more education than Stroebele.
He had previously worked as a laborer and she had inspected his work while at MUD.
The only complaints about Hartley were tied to her emotionality rather than competency to perform her job.
Other female applicants were also more qualified than Stroebele.
Hartley’s only performance appraisal in the past seven months took place just after she applied for the promotion, as did the other applicants’ appraisals.
The appraisal was not conducted in month of the applicants’ hiring anniversary, contrary to MUD policy.
Hartley’s appraisal showed a dramatic decline compared to her past appraisals.
The appraisal was conducted by the new supervisor recently put in place over Hartley but referenced incidents before he was her supervisor, when Henn was her supervisor.
Hartley’s supervisors showed hostility towards her after she complained about the timing and content of the appraisal.
There was a question of whether the five years’ locating experience requirement was a legitimate and necessary requirement for the position.
Supervisors provided inconsistent or shifting explanations about Hartley’s skills at locating in explaining why she was denied the promotion.

In response to this evidence, MUD argued the jury could not have reasonably found pretext because Hartley admitted that certain events happened. It said she did not refute that in 2008 she had a bad interaction with then-supervisor Henn, which Henn thought was unprofessional. It also said she did not refute the truth of complaints about Hartley that she did not like to do utility locating.

The Court rejected MUD’s argument. It “confuse[d] the falsity of an occurrence cited in support of the employer’s action with the falsity of the employer’s statement that the proffered non-discriminatory reason actually motivated the employer.” Regardless of the truth or falsity of the complaints against Hartley, the evidence could have led a jury to conclude those complaints were not the actual reason for denying Hartley the promotion. Viewing the evidence as a whole and in a light most favorable to Hartley, the Court found that there was sufficient evidence to support a reasonable inference that the employer’s promotional decision was because of Hartley’s gender. Therefore, the jury’s verdict was upheld, including each amount for damages and attorney’s fees. Hartley v. Metropolitan Utilities District of Omaha, 294 Neb. 870 (Sep. 30, 2016).

Takeaway for employers
The evidence put before the jury may have led jurors to conclude that policies were not followed with regard to the plaintiff that illegitimate job requirements were placed in the posting to exclude certain applicants, and that supervisors had improper justifications when excluding female applicants.

This case should show employers the importance of conducting job performance appraisal consistently and in conformity with written policies or past practices. Furthermore, job postings are important and should contain only the actual requirements and considerations involved in reviewing applicants for a position. Bonnie M. Boryca is contributing editor of the Nebraska Employment Law Letter and can be reached at (402) 397-2200.