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