Litigators often counsel witnesses to answer, “I don’t recall,” rather than guess or speculate the response to a question at a deposition. But, sometimes, that approach can backfire.
The female plaintiff in this recent Third Circuit opinion I read last night worked as a manager in the defendant’s finance department. Two years earlier, the company hired a man for a similar position. The defendant promoted the plaintiff and her male colleague to Senior Manager in 2011. By 2017, each sought promotion to Director. In 2018, the defendant promoted the man but not the plaintiff.
According to the defendant, the man took on “substantial responsibilities beyond the regular scope of his position.” At the same time, the woman “offloaded assignments and did not take on the special projects necessary for promotion to Director.”
Ok, that sounds reasonable.
But, the plaintiff noted that she expanded her responsibilities since her 2011 promotion and took on several special projects. She also received positive performance reviews during this period.
But the smoking gun was her “Individual Development Plan/Career Development Plan” (“IDP/CDP”) forms, on which her direct supervisor rated her as “promotable.” Her direct supervisor corroborated the rating and testified that he submitted this rating to his supervisors. However, the defendant later lowered the plaintiff’s 2017 rating to “expandable.”
No one could explain. Indeed, the supervisor’s supervisors could not recall the reason.
Plus, in the year after the defendant promoted the male coworker, the defendant rated the female plaintiff “promotable” again.
Yeah, that’s what the Third Circuit Court of Appeals thought too:
A reasonable factfinder could find that [the defendant’s] proffered reasons for not promoting [the plaintiff]—that she offloaded tasks and did not take on special projects—were pretextual…[The plaintiff’s] immediate supervisor rated her as “promotable” on her IDP/CDP forms for years 2015. Others higher in the chain of command, however, downgraded her potential from “promotable” to “expandable” for 2017 without explanation, just a few months before [her male co-worker’s] promotion. [One of the second-level supervisors] could not explain why the downgrade was made and [the other] specifically stated that he could not “recall that there was any particular individual reason” for this decision. This unexplained downgrade around the time of [the male coworker’s] promotion presents a genuine dispute as to whether the proffered reasons for the decision not to promote [the plaintiff] were pretextual. (cleaned up).
So, the plaintiff survives summary judgment and will head to trial on her gender discrimination claim.
Like the employer in yesterday’s post, the defendant here nearly avoided a discrimination claim. Had it documented not just the decision to rank the plaintiff “promotable,” but also “expandable” (whatever that means), it may have been able to articulate a legitimate business reason for not promoting her.
Instead, the defendant was forced to rely on fading memories and “I don’t recall,” which is generally not a good formula for justifying employment decisions.