Filling Vacancies With Internal Candidates Without Application Process Leads to Discrimination Claim

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S.G. v. Norristown Area S.D., No. 20-1682, 2021WL 6063122 (E.D. Pa. Dec. 22, 2021) (Federal court allowed a discrimination claim of part-time teacher to proceed arising from a school district’s practice of hiring internal candidates to vacant positions without an application process).

BACKGROUND

S.G. was a sixty-year-old, African American female who was employed as a high school Spanish teacher by Norristown Area School District. In spring 2014, S.G. applied for a “Per Diem Substitute Spanish Teacher” position with the School District through an online portal. One week later, S.G. was hired by the School District and after the end of the 2014 school year, she was offered and accepted three different teaching positions with the School District: a “Per Diem Substitute Spanish Teacher”; a “.4 part-time Spanish Teacher”; and a “.8 part-time Spanish Teacher,” all which came with salary increases and increased benefits. Importantly, S.G. did not apply for the aforementioned positions.

During her time as a School District employee, S.G. did not have an individual workspace and had to share textbooks with other teachers. During the 2016-2017 school year, S.G. told her Assistant Principal that she believed she was being discriminated against because of her race and age due to the fact that her younger, non-African American language teacher colleagues had their own classrooms, workspaces, and textbooks.

After S.G. reported the alleged discrimination, her Assistant Principal instructed her to begin including students who received individual education plans (“IEPs”) in her student learning objectives (“SLOs”), which are designed to measure educator effectiveness based upon student achievement. While all language teachers in the District were advised to do this, S.G. claimed that, because she was forced to include special education student’s IEPs in her reports, her performance ratings were lowered. However, it was undisputed that S.G. received a “Satisfactory” performance review during the 2016-2017 school year.

After S.G. was told to include student IEPs in her SLOs, she filed a complaint with the Pennsylvania Human Relations Commission and a union grievance. S.G. claimed that district administrators and counselors had solicited complaints from students and parents about her performance and she was subjected to unannounced and frequent visits and reviews from school administrators. She also claimed that administrators instructed a school secretary to prevent her from signing into work on three different occasions during the 2017-2018 school year.

S.G. was eventually informed by School District administrators that due to District budget cuts and decreased enrollment, there was a possibility that her contract would be decreased. However, after providing notice of potential budget cuts, two full-time Spanish teachers resigned and the School District posted job openings to fill both vacant positions. While the job openings were posted on an online portal for ten days, S.G. did not apply for either of the positions. In fact, during the ten-day application window, S.G. was informed that her employment would be changed from a “.8 part-time Spanish Teacher” to a “.4 part-time Spanish Teacher” due to budget cuts, resulting in a salary decrease and loss of certain benefits. The School District ended up hiring two Latina women to fill the open full-time Spanish Teacher positions and both women were younger than S.G. and there was a question of whether one was even qualified for the position.

S.G. subsequently filed discrimination claims under Title VII and the ADEA in addition to retaliation claims under Title VII against the School District. However, the School District moved for summary judgment (dismissal) with regard to both issues. The court determined that there were disputed issues of fact that precluded summary judgment with regard to S.G.’s discrimination claim, but it granted summary judgment with regard to the retaliation claim because S.G. did not present sufficient evidence demonstrating that she suffered professional repercussions resulting in an adverse employment action.

DISCUSSION

S.G. asserted that she was discriminated against under a disparate impact theory, meaning that she believed she was singled out and treated less favorably than others based upon her race and age. To make out a prima facie case of failure to hire or promote under the ADEA, a plaintiff must prove that (1) they belong to a protected class; (2) she applied for and was qualified for the job; (3) she was subject to an adverse employment action despite being qualified for the job; and (4) under the circumstances that raise an inference of discrimination, the employer continued to seek out individuals with similar qualifications for the position.

While the School District argued that S.G. was not offered a full-time teaching position because she did not apply for either open position, the court rejected that argument. The court noted that because S.G. was promoted three times without applying for any of the positions, the school had a practice of hiring internal candidates for open positions without requiring them to submit applications. The court believed that it was unclear whether the School District handled the hiring for full-time positions differently, but because there was a disputed question of material fact, it refused to dismiss S.G.’s claim and indicated that a jury should decide if the School District’s conduct constituted discrimination under Title VII and the ADEA. However, the court rejected S.G.’s retaliation claim, because she failed to establish that her inclusion of IEPs in her SLOs led to an adverse employment action that harmed her professional advancement.  

PRACTICAL ADVICE

The court’s decision in S.G.is instructive for any School District who has a pattern or practice of filling vacancies without adhering to a consistent hiring process. In this case, the lack of an organized system for the solicitation and appointment of candidates to open positions provided the premise for the potential finding of a discriminatory hiring decision. The development and consistent use of a structured hiring process promotes an equal opportunity among persons that may be interested in vacancies, facilitates reasoned employment decisions and, thus, ultimately aids a school district to refute claims of discriminatory practices.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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