In the Trenches: To your health

Acme learns something about selecting candidates for promotion.

Recognizing an apparent gender gap and fears about the brain drain resulting from anticipated retirements within the next few years led Acme management to make a concerted effort to hire, integrate and promote women into what are considered to be nontraditional jobs. To make the program more successful, management sought to identify female employees who could serve as role models and mentors for new hires.

One such candidate was Cassie Opia. She joined Acme’s maintenance department as a technician in early 2001. Highly competent, Cassie proved her mettle and, through several promotions, rose to maintenance manager by mid-2002. Some of the reasons were her willingness to help others succeed and never refusing to help solve technical and management problems in other departments.

During his “state of the company” address at Acme’s 2003 year-end celebration, president and CEO Cornelius Kegg named Cassie “Employee of the Year.” Indeed, Cassie was a rising star.

But life isn’t always fair. Even before Acme hired her, Cassie had been diagnosed with autosomal dominant polycystic kidney disease. It’s a no-win situation in which numerous cysts form in the kidneys and then fill with fluid. This slowly replaces much of the kidney’s mass, which reduces renal function.

Cassie had learned to cope with the frequent back pains, headaches, urinary tract infections and bloody urine that are symptomatic of the malady.

Several months after her promotion, Cassie’s condition worsened and the updated diagnosis was end-stage renal disease (ESRD). This means outright kidney failure, the ultimate outcome in nearly half the cases such as hers. This twist complicated her coping mechanism. Until a suitable replacement kidney could be found, Cassie underwent hemodialysis, a process that circulated blood through a machine for cleaning it before it reenters the body. Each dialysis session requires about four hours.

Staring in late 2002, Cassie began her treatments at a downtown kidney clinic. This required her to be out of the plant for three afternoons each week. To maintain a 40-hour work week, Cassie sought and received approval to use a flex-time schedule. She arrived at work two hours early on her treatment days, which allowed her to leave early. On the mornings after a treatment, Cassie was in some amount of discomfort. Quite often, she arrived nauseous, only to became weak and listlessness by noon. It’s not fun, and she prayed for the magic tissue match that must exist somewhere.

When her boss, Otto Hizmine, the plant manager, decided to retire early and enjoy life by circumnavigating the globe in his 18-foot sailboat, Cassie expressed a deep interest in taking over the job he was going to vacate. Otto indicated that he was already considering both her and Mollie Gwaynia, who managed the project engineering department.

Mollie had been with Acme for about a year-and-a-half, having been hired from a major competitor. Although she never graduated from college, she had been working in Acme’s industry for at least 26 years. Her job history, too, showed a pattern of regular promotions. Cassie, on the other hand, earned her undergraduate degree in mechanical engineering, but worked in the industry for less than 10 years.

Also, she was familiar with Acme’s computerized maintenance management system and the various software packages for producing the management reports that formed the basis for many of the decisions the department made.

Otto announced at one of the weekly executive staff meetings that Mollie would be replacing him when he sailed into the sunset. After the meeting, in Cornelius’ presence, Cassie asked Otto why she didn’t get the position.

Otto replied that it was her “situation.” Then, Cornelius pointed out that being an effective plant manager requires working a lot of hours. Surely, he said, a kidney transplant is in her future, and she’d be recuperating for at least half a year. Cassie expressed her opinion that promoting Mollie was not in Acme’s best interest and that she would never work as Mollie’s direct report.

Cornelius asked Cassie if she was interested in replacing Mollie to head the project engineering department when staffing changes became effective. He added that he’d view Cassie’s acceptance as a personal favor to him because operations in the project department were somewhat chaotic and disorganized. It needs to be straightened out, he said. Otto then chimed in to ask Cassie if she would please help to train Mollie on the maintenance software and bring her up to speed.

Cassie said she would only assist the others who were going to be training Mollie. Then she asked to be assigned as a maintenance foreman in one of the operating departments, but at her current pay rate and without the burdens of management responsibilities. This request was granted.

During the next few months, in addition to helping train Mollie, Cassie went back to swinging a wrench and working directly with the technicians. She found this new role offered a greater psychic reward than dealing with being passed over for a deserved promotion. Her personality, competence and attitude were now in demand. Her ego was soothed. Because several operating department foremen specifically asked if Cassie could be transferred to their department to straighten out some problem or other, she turned into a roving generalist. Then, when Acme tried to move her into a technician position – the same job she had when she started with the company – Cassie found another job and resigned her position at Acme.

Transplanting healthy kidneys into ESRD patients is now a common procedure. If the new kidney is healthy, it won’t develop post-transplant cysts. Such was the luck that befell Cassie and she no longer requires dialysis.

Nevertheless, Cassie sued Acme, claiming a disability-based failure to promote and constructive discharge.

How could this situation have been avoided? Is fitness for service a valid selection criteria for a promotion? Would it have been better for Cassie to get herself classified as totally disabled? Is it fair to ask a bypassed candidate to help train the successful candidate? Was it a good strategic move for Cassie to ask to be relieved of her maintenance management position? Should Otto’s explanation to Cassie have included Mollie’s more extensive experience? Does Cassie have a case?

An attorney says:

Cornelius Kegg has bought Acme a disability discrimination lawsuit that Acme very likely can’t win. By informing Cassie that she didn’t get the promotion to plant manager because of her kidney condition and the likely absence from work a kidney transplant would cause, Kegg furnished Cassie with the admission she needed to prevail in her suit.

Cassie’s kidney condition, resulting in back pain, headaches, urinary tract infections, nausea and listlessness as well as the need for hemodialysis and a kidney transplant, likely would be considered a disability under the Americans With Disabilities Act. As a “disabled” employee, Acme couldn’t lawfully discriminate against her on the basis of the disability, and that includes refusing to promote her because of her disability.

Had Cornelius and Otto not admitted that her medical condition was the reason for her non-promotion, Cassie would have had a much tougher case. She and Mollie had different strengths: Cassie an engineering degree and Mollie many years of industry experience. Comparing their credentials on paper, Cassie wasn’t the obvious top candidate. The scales were fairly evenly balanced. Between Cornelius and Otto, however, their admissions tipped the scales in Cassie’s favor.

Cassie wouldn’t fare nearly as well in her constructive discharge claim. Demoting an employee to a lower level position normally doesn’t constitute a constructive discharge. Demoting the CEO to janitor and giving him a closet for an office with no work to do, on the other hand, probably would amount to a constructive discharge.

Cassie has one more potential claim to raise, the demotion to a technician position. Nothing in the facts suggests a business reason for the demotion, because Cassie appeared to do well in the position of maintenance foreman. Absent a valid business reason for the demotion, Cassie might well prevail in a claim that she was demoted because of her disability.

Perhaps the next succession planning Acme ought to consider is replacing its president and CEO with an individual with some modicum of knowledge about employment laws.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:

The cornerstone of this case was Otto's statement that he chose Mollie because of Cassie's illness. He had numerous other options. He could have cited Mollie's particular strengths; he could have ensured the job description outlined competencies that only Mollie possessed; he could have offered to help her secure a meeting with HR if she felt she had been treated unfairly; or he could have said that multiple parties were involved in the decision, offering no further details. Absent this one statement from Otto, the case may never have been filed. It seems incredible to me that Otto would make such a statement. He may as well have hung a neon sign on himself inviting suit. Even if her case is frivolous, this is the kind of suit that companies will settle just to avoid expensive litigation and negative press. But settling is still costly. Does Acme not brief its managers on what's potentially litigious? Do they not even try to reduce the likelihood that employees will say something as inane as Otto’s statement?

Fitness for service must be a criterion for promotion -- or even for hiring. If one isn't fit to perform the requisite duties, why should they be considered? I can't think of anything that should be subordinated to fitness; not tenure, popularity, loyalty or desire. If one isn't fit to perform the duties of the job, there's nothing to discuss.

Although it seems unfair to ask a bypassed candidate to help train the successful candidate, this can be overcome if the situation is well-managed. For example, when the unsuccessful candidate is informed that she won’t be selected, there should be a discussion of career objectives and an action plan developed to help ensure the necessary training and development takes place. There should also be a discussion about how unlikely it is that anyone who takes on a new job would have full knowledge of everything that needs to be done, thus stressing the need for support of the successful candidate from multiple individuals. A smart candidate will approach the unsuccessful candidate, confessing specific learning needs, and ask for help and support.

It's unclear whether Acme was insisting Cassie give up her roving generalist function and revert to her original position, or whether they merely offered the position to her. It's also unclear whether the two positions are equal. So it's hard to tell whether Cassie actually has a case. It seems unlikely, though, because she requested and was granted reassignment, and because she apparently resigned without being deprived of her roving generalist position.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

Acme first must decide what qualifications are needed for success in each of its job functions (salaried and hourly), post those for everyone to see then use them as a basis for hiring and promotion decisions. The biggest mistake a company can make is to promote for reasons other than qualifications, for example, because the person is well-liked or a relative of one of the executives.

Often several candidates qualify for an opening and someone must make the tough decision as to which will best serve the current need. While both Cassie and Mollie might be equally qualified, I’d have reservations about Cassie’s absence for three afternoons each week. Most plant managers are expected to be on-site from early morning through well beyond dinner time, and Cassie simply isn’t available to meet these expectations.

That should have been a part of the job requirements and Cassie should have known this up front when she was thinking of applying, which probably would have eliminated much of the problem. I also would have highlighted Mollie’s skills and experience once she was chosen, not just to Cassie, but to all employees. People want to know that the person leading them has some smarts and skills and has the background for the job.

I have no problem with Cassie training Mollie. Cassie is still part of the company and should be willing to help where she can. This isn’t a Cassie-versus-Mollie issue. What’s best for the company is the issue. If Cassie had a problem with that, it would be time for her to leave.
Does Cassie have a case? I will let the attorneys sort that out.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

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