An admissions representative claimed that her employer discriminated against her on the basis of her age when it failed to promote her to a director’s position.

What happened. “Bailey” worked as an admissions representative at National American University (NAU) at the Rapid City, South Dakota, campus. When the director of admissions position opened up in 2004, Bailey applied. She was 56 years old. A hiring committee conducted interviews with Bailey and five other candidates. Bailey and two men were selected as finalists. The committee offered the job to one male finalist and then to the other, but both declined.

Instead of hiring Bailey, the committee decided to expand its search, and the university president asked Bailey to take over most of the director’s duties on an interim basis. After NAU hired a 34-year-old woman to fill the director’s position, Bailey submitted a letter of resignation. The president told Bailey that she was the better short-term choice for the position, but that the 34-year-old was the better long-term choice, a comment that Bailey believed was age related.

Bailey filed a charge of age discrimination with the Equal Employment Opportunity Commission (EEOC), then filed suit against NAU, claiming that the university had violated the Age Discrimination in Employment Act (ADEA) and that its failure to promote her amounted to constructive discharge. A court granted summary judgment on Bailey’s constructive discharge claim, and a jury said NAU had discriminated against Bailey, awarding her $17,565 in compensatory damages—a figure that was doubled to $35,130 because the jury concluded that the discrimination was willful.

NAU appealed to the 8th Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.

What the court said. The appeals court affirmed, saying that Bailey “presented sufficient evidence for the jury to conclude that NAU’s proffered reason for the failure to promote was a pretext for age discrimination … [She] presented evidence that between the time of its EEOC charge response and the trial, NAU shifted its reasons for failing to promote her to the director position.”

Specifically, the court noted that NAU’s response to the EEOC charge cited Bailey’s poor performance, but that at trial, the university pointed instead to her lack of managerial and marketing experience. Jones v. National American University, U.S. Court of Appeals for the 8th Circuit, No. 09-3007 (6/23/10).

Point to remember: Be sure to get your facts straight. University officials initially cited poor performance as the reason Bailey was not promoted, although she had apparently received positive reviews during her 6-year tenure with NAU. Bailey also presented evidence that the candidate hired “lacked the extensive management experience that the hiring committee asserted had been their primary qualification.”