‘Mr. (Doe) was the only Above Average score. Promoting Mr. (Doe)…will also add diversity…’
(Will Doran, The News & Observer (Raleigh, N.C.) When Wendy Johnson applied for a promotion at the North Carolina Department of Public Safety, she was passed over for the job. She talked to a female co-worker who had also been passed over, and who said she heard that the bosses wanted a man for the job.
So Johnson sued the state, claiming gender discrimination. Complicating the case are two issues.
On one hand, the man who was ultimately hired for the job was rated as the most qualified applicant. He was the only one of the seven candidates who scored above-average in an interview test.
On the other hand, state officials do indeed appear to have hired him in part because he is a man. They said at the time — before the lawsuit ever began — that it actually should be seen as a diversity hire: The office he was applying to join had an all-female staff.
The man is not named in the lawsuit, which simply calls him John Doe.
The DPS manager in charge of interviewing candidates, Lou Ann Avery, wrote in an email that she was recommending the man who was ultimately hired. She said he was the most qualified, and also that his gender was a plus. A different manager, Lisa Murray, then approved the request using the exact same language as in Avery’s email.
The position in question was a human resources assistant manager job in the state prison system’s Western Foothills Regional Employment Office, located between Hickory and Morganton.
“On February 22, 2017 we interviewed a total of 7 applicants,” Avery wrote in the email, according to the Court of Appeals ruling. “Three applicants scored Average, three scored Below Average, Mr. (Doe) was the only Above Average score. Promoting Mr. (Doe) to the WFREO will also add diversity to an all female staff. I am recommending $42,159 salary for Mr. (Doe), a 10% increase from his current salary.”
For a while, it appeared that the state’s argument would win — that officials had not committed gender discrimination. Johnson lost her original challenge, at the state’s Office of Administrative Hearings.
But she appealed the decision, and on Tuesday the North Carolina Court of Appeals ruled that the administrative law judge in the original case mishandled it.
“It strains credulity to argue that Avery’s statement (regarding the man’s gender), made on an official employment document listing the ‘JUSTIFICATION’ for hire, does not bear directly on the contested employment action — which candidate to hire,” the judges wrote in their ruling.
So they sent Johnson’s case back down to the administrative hearings office for a new hearing.
The judges did rule against Johnson in one regard, saying she didn’t have any grounds to claim that she was discriminated against for being a veteran.
But on the question of whether being a woman cost her this promotion, the judges believed she may have a point.
Their ruling said U.S. courts generally recognize different types of evidence and arguments about discrimination cases, including what they believe to be the case here, they wrote, “where an employment decision is the result of both legitimate and discriminatory motives.”
That type of case was explored by the U.S. Supreme Court in a landmark 1989 case, Price Waterhouse v. Hopkins. The North Carolina Court of Appeals ruling said the state also has its own legal framework and procedures for how to handle these cases.
They found that the administrative law judge who handled Johnson’s complaint did not follow that framework, so his ruling in favor of the state was flawed. Using the correct procedures, they said, there’s a chance that Johnson might prove she was the victim of discrimination, and not simply a less-qualified candidate.
But the judges said that “it is beyond our role as an appellate court” to look at the evidence themselves and make a decision, so they sent the case back to the Office of Administrative Hearings “to apply the correct framework, reweigh the evidence accordingly, and issue a new final decision.”
The decision was unanimous. Judge Hunter Murphy, a Republican, wrote the opinion and was joined by fellow judges Chris Dillon, a Republican, and John Arrowood, a Democrat.
©2019 The News & Observer (Raleigh, N.C.). Distributed by Tribune Content Agency, LLC.