Need to make a promotion decision? Better read this

Courts understand personal judgment calls play a role in deciding about a promotion. But here’s one key thing to remember: If you’re sued for bias, a court deciding if the candidate has a leg to stand on will likely want to hear exactly why you passed on them.

In Campbell v. City of Trussville, an Alabama federal judge decided one police chief’s explanation nipped an age bias claim in the bud – but found another chief’s explanation about a different promotion was inadequate.

That claim is going to trial.

The bottom line: It’s all about providing specific details – something you may want to keep in mind (and even jot down) when making the decision in the first place.

Rejected for promotion again and again

Michael Owen Campbell is a cop for the Trussville Police Department (TPD). He’s older than 40, the age when protection from bias starts under the federal Age Discrimination in Employment Act (ADEA).

Starting in 2018, Campbell began applying for promotions to sergeant. Over the next two years, he applied for six plus one open corporal position.

He got none of the jobs.

For each TPD promotion, the county personnel board provides a list of eligible candidates; a panel of TPD supervisors interviews each one; the panel narrows the field to three; and the police chief interviews the three finalists and chooses which of them to promote.

Campbell only made it to the final three once, and everyone who got promoted was at least seven years younger. After losing out to a 38-year-old and then a 45-year-old, Campbell filed an age bias charge with the Equal Employment Opportunity Commission (EEOC).

Meanwhile, the TPD got a new chief of police.

A year later, Campbell made it to the final three for an open sergeant position, but the new chief chose a 36-year-old instead.

Campbell sued the city for bias and retaliation.

He went on to not make it to the final three for three other sergeant positions and a new corporal position.

His suit not only alleged age bias but that the city retaliated against him for his EEOC charge by not promoting him and by transferring him from the night shift (7 p.m. to 7 a.m.) to the evening shift (noon to midnight).

The court found only one age bias claim based on failure to promote can go to trial, but OK’d five retaliation claims based on failure to promote and one based on his shift change.

Campbell stated a valid age bias claim by showing:

• he was older than 40
• the TPD passed him over for promotion
• his experience, training and eligibility qualified him for the promotion, and
• the job went to someone younger.

These explanations were good enough

Most of the biased promotion claims failed because the city stated valid, nonbiased reasons not to promote him that he couldn’t show were cover stories for bias:

• the panel found he wasn’t a top-three candidate, and
• the first chief explained Campbell wasn’t sergeant material because he often complained, did the bare minimum, and favored practices he’d learned in a different police department over TPD’s practices.

One claim is proceeding because the court found the second chief’s explanation for his decision inadequate.

‘Bare bones statements’ don’t fly

Employment decisions can be based on subjective criteria but to rebut a bias allegation, the employer’s decision-maker must give concrete, specific reasons.

This chief’s explanation was: “I selected Officer Dunn for the promotion based upon his compatibility for the position based upon the criteria utilized. Officer Campbell was not selected due to his negative attitude, perceived dislike for his higher-ranking officers and questionable ability to be a positive influence on subordinates.”

The court said these “bare-bones statements of subjective beliefs do not pass muster” because the chief didn’t explain why Dunn was compatible for the job, he thought Campbell had a negative attitude or disliked superior officers and questioned Campbell’s ability to be a positive influence.

The court explained that the “lack of specificity makes it impossible for Campbell to combat his explanation or for the court to objectively evaluate the stated reasons for denying Campbell this promotion.”

So this age-bias claim will go to trial along with five retaliation claims because Campbell showed a causal relationship between filing an EEOC complaint – which the law protects from retaliation – and

• his shift change, and
• four of the failures to promote him.

Campbell v. City of Trussville, No. 2:19-cv-1739-CLM, 2023 WL 113720 (S.D. Ala. 1/5/23).