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Culpepper v. Vilsack, No. 10-2627 (8th Cir. Dec. 28, 2011)

Employees who believe they are not getting ahead in their jobs because of sex, race, disability, age or other factors, take heed: unless you actually apply for - or at very least, express interest in - a promotion, you may not have a claim for discrimination. Such an application is an important step to preserving your rights, even if you think the outcome is preordained against you.

Culpepper v. Vilsack, No. 10-2627 (8th Cir. Dec. 28, 2011): The employee in this case had a three-day bench trial (i.e., one decided by a judge, instead of a jury) on a variety of claims against the Department of Agriculture, all related to discrimination on account of her disability (i.e., hard of hearing) or retaliation for protected activity under the Rehabilitation Act of 1973. The court entered a judgment entirely in favor of the government.

Her principal argument on appeal was that the district court erred in denying her claim against the agency for its failure to promote her to a loan specialist position. Culpepper admitted that she did not formally apply for the job, but argued that this formal step ought to be excused under the doctrine of "futility," given what the plaintiff claimed was a continuing pattern of discrimination - and because of the allegedly discriminatory "inclusion of explanatory language in the job announcement referring to 'successful activity/experience in listening.'"

The court of appeals affirms. Rather than take on the question of whether the job announcement suggested a discriminatory animus against the deaf and hard-of-hearing, the panel affirms instead on the finding that the employee more likely had a different reason for not applying for the promotion: 

"[T]he district court found credible the testimony of Alta Mullinax, one of Culpepper's co-workers, that Culpepper told her that she did not apply for the loan specialist position because of the recent death of her father. . . . We see no clear error in the district court's finding of fact that the death of Culpepper's father caused her failure to apply for the loan specialist position, and we affirm the district court's determination that Culpepper's failure to apply for the position was not excused for futility."

On a separate claim, that the agency did not properly reclassify her at a higher rank (with higher pay), Culpepper also lost - at trial and on appeal - once again on the ground that she did not seek the reclassification, referred to as "accretion-of-duties." . In agency parlance, "[t]he accretion-of-duties process to which Culpepper refers is a non-competitive promotion process by which employees performing work above their GS grade level can seek to have their grade level reclassified to a level commensurate with the work they actually are performing." The panel holds:

"She argues . . . that in her office the accretion-of-duties promotion process could be initiated by either an employee or a supervisor requesting a desk audit and that her supervisors never requested a desk audit for her while they had requested desk audits for her similarly situated, non-disabled co-workers. This contention, though, would not entitle her to relief even if true. '[A]n employee who does not formally apply must make 'every reasonable attempt to convey his [or her] interest in the job to the employer' before he or she may prevail on a discrimination claim." [Citation omitted.] Culpepper admits that, in addition to not requesting a desk audit herself, she did not ask her supervisors to request a desk audit on her behalf. She also admits that she never complained to her supervisors that she was performing duties above her grade level without a commensurate increase in her grade level. As Culpepper did not make 'every reasonable attempt to convey [her] interest' in an accretion-of-duties promotion, . . . her claim fails."

From this decision, the lesson is clear enough - the employee must take every step to obtain a desired promotion (or transfer or reclassification), even if the employee feels that it is futile, or she may emperil her discrimination or retaliation claim.

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