A federal court in Rhode Island recently rejected a sergeant’s claim that the Providence Police Department’s (PPD) failure to promote him to lieutenant was illegally based on disability discrimination. The court found the employment decision was based in part on the chief of police’s conclusion that the sergeant was undeserving of the promotion and wasn’t well liked by his colleagues, which were legitimate reasons not to promote him.
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I ‘Kneed’ a Break
“Ralph” was a sergeant in the PPD. On November 15, 2010, he injured his right knee in the line of duty while he was chasing a suspect. As a result of his injury, he was placed on injured on duty (IOD) status and was off work until May 2011.
Ralph returned to work and was placed on light-duty status through August 2011. The police department terminated his light-duty status in August and recommended that he file for accidental disability benefits from the city.
On June 12, 2012, the city denied Ralph’s application for an accidental disability pension. He then sought to return to work on light-duty status, but the city refused to allow him to return.
Sergeant Denied Promotion to Lieutenant
On June 16, 2012, Ralph took the lieutenant’s promotional examination, which is required as part of the process for attaining the rank of lieutenant. The criteria for selecting a lieutenant include:
- 0-85 points for the applicant’s score on a 100-question written examination;
- 0-5 points for his level of education;
- 0-5 points for his level of seniority; and
- 0-5 points for his service.
The top five individuals who take the lieutenant’s exam are eligible for promotion. Based on all the criteria, Ralph scored 88.2 and was ranked seventh of the 16 sergeants who took the exam, taking him out of the running for a promotion to lieutenant.
The chief of police, Colonel Brown, graded the service section of the promotional examination. He gave Ralph zero out of five points for his service. If Ralph had received at least one point in the service section, he would have been eligible for promotion to lieutenant.
Ralph charged the city with four counts of unlawful disability-based discrimination, including violations of the Rhode Island Civil Rights Act of 1990, the Rhode Island Fair Employment Practices Act, the Americans with Disabilities Act (ADA), and the Rhode Island Civil Rights of People with Disabilities Act. The city moved for summary judgment, asking the federal court judge to dismiss Ralph’s claims of disability discrimination without a trial.
Self-Serving Statements Not Evidence of Disability
As a preliminary matter, the court decided that Ralph couldn’t show that he was protected by the antidiscrimination laws based on a disability. To establish that he is disabled, he had to prove that he has a physical impairment that substantially limits a major life activity.
The only evidence he submitted to the court was his own written statement, prepared for purposes of the motion for summary judgment, in which he stated: “At the time I sat for the June 2012 Lieutenant[‘]s Exam, my physical impairment substantially limited my ability to stand, walk, bend, lift, and work as compared to the average member of society.”
The court was not persuaded, finding that Ralph’s “self-serving affidavit misses the mark by a wide margin.” Instead of providing factually specific evidence of a disability, his affidavit was conclusory, lacked factual specificity, and merely parroted the legal conclusions required to establish a protected disability under the ADA. The court went on to analyze Ralph’s claim of disability discrimination assuming that he could establish that he has a protected disability, but found that his claims still fell short.
Disability or Likeability?
When grading the service portion of the lieutenant’s exam, Brown was required to exercise his sole discretion to evaluate and rate a promotional candidate’s overall work performance, considering letters of commendation, memoranda of merit, and other factors to determine the candidate’s service points.
According to his deposition testimony, the police chief met with members of his command staff to discuss the appropriate award of service points for each promotional candidate, including Ralph. At the meetings, promotional candidates were evaluated, and after discussing a candidate’s qualifications, members of the command staff had the opportunity to recommend a service points score for each candidate.
Brown received seven recommendations for Ralph’s service points score. Three staff members recommended a zero; the highest recommendation was a three. Further, some members of the command staff conveyed their belief that Ralph had a negative or poor attitude and was not a team player. Brown found the command staff’s recommendations and comments about Ralph to be “glaringly less favorable” than their comments about the other candidates.
Brown explained that he concluded that Ralph was unsuitable for the rank of lieutenant, a position he considered a “mini police chief” for the particular community where the lieutenant is assigned. He stated that the police department is “looking for people that become way more engaged with the work staff, with the community, and . . . present a positive direction.” By contrast, he described Ralph as an individual who “comes into work, does the job and [then] leaves.”
Failure to Promote Not Discriminatory
The city produced additional evidence that it hadn’t treated any promotional candidates less favorably because of their IOD status. For example, during the 2012 sergeant’s promotional exam, 11 candidates were on IOD status, and Brown awarded each of them a four or a five on the service points section.
The court held that the city had established a legitimate nondiscriminatory reason for failing to promote Ralph, and he couldn’t demonstrate that its reason was a pretext, or excuse, for disability discrimination. The court found that while it “may be able to infer that [Brown] thought [Ralph] undeserving, or perhaps [he] disliked him for one reason or another[,] such inferences are of no consequence. [Ralph’s] argument as to pretext rests ultimately on speculation, not evidence, and therefore must fail.”
Takeaway for Employers
You should feel confident in promotional decisions that affect disabled employees—and employees in other protected categories—if your decisions are based on a uniformly implemented process and you can reasonably articulate a nondiscriminatory reason for them.
Here, the city of Providence followed a well-established promotional process. Even though part of the process was subjective, the city was able to readily explain the legitimate reasoning behind its decision, and it was therefore able to defeat a discrimination claim without a trial.
Meghan E. Siket (msiket@whelankindersiket.com) is a Partner at Whelan, Kinder & Siket LLP and an editor of Rhode Island Employment Law Letter.