Employee's Discrimination Claim Based on Accretion-of-Duties Promotion Fails Because She Did Not Convey Her Interest in Promotion, Eighth Circuit Rules

An employee's discrimination claim based on an accretion-of-duties promotion fails because the employee did not convey her interest in a promotion, the Eighth Circuit ruled recently.

In this case, the employee, who suffered from a severe hearing impairment, began working for the U.S. Department of Agriculture (USDA) in 1979. Over the course of her employment, the employee filed numerous complaints of workplace discrimination on the basis of her disability and retaliation for her prior complaints. Among other things, the employee alleged that the USDA discriminated against her when it failed to promote her through the non-competitive "accretion of duties" process. The case eventually made its way to the Eighth Circuit, which ruled on the case last month.

In its decision, the Eighth Circuit began by explaining that the "accretion-of-duties" process is a non-competitive promotion process by which employees performing work above their General Schedule (GS) grade level can seek to have their grade level reclassified to a level commensurate with the work they actually are performing. In order to establish a prima facie case of discrimination over failure to receive a non-competitive promotion, a plaintiff has to demonstrate that: (1) she was a member of a protected class, (2) she applied for and was generally qualified for the promotion, (3) she did not receive the promotion, and (4) similarly situated employees who were not members of the protected class did receive non-competitive promotions.

Here, the Eighth Circuit stated, there is no question the USDA employee did not apply for an accretion-of-duties promotion. Instead, the employee argued 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. However, the Eighth Circuit stated that this contention, even if true, would not entitle the employee to relief. The appeals court stated that the rule is that an 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 can prevail on a discrimination claim. In this case, the USDA employee admitted 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 admitted that she never complained to her supervisors that she was performing duties above her grade level without a commensurate increase in her grade level. Since the USDA employee did not make "every reasonable attempt" to convey her interest in an accretion-of-duties promotion, the Eighth Circuit concluded that her discrimination claim must fail.

The case is Culpepper v. Vilsack, U.S. Court of Appeals for the Eighth Circuit, No. 10-2627, December 28, 2011.

Posted in Case Law Update

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