The person who promoted me later demoted me. That’s sexist, the plaintiff claimed.


Unfortunately for the plaintiff, a federal judge disagreed.

The plaintiff began her employment with the defendant as corporate counsel. After a few years of positive performance reviews and raises, the plaintiff was promoted to Acting General Counsel and Chief Compliance Officer on a 12-month trial basis.

The trial did not go well.

Among other things, the former General Counsel, who had since been promoted to President, indicated that the plaintiff needed to “stop being defensive,” learn to say “yes” or “I agree,” “listen more” and “talk less,” and be less “sloppy.” Two months later, a legal assistant accused the plaintiff of disability discrimination.

Around this time, the company determined that the trial run had to end. So, the President recruited an outside candidate, a man, to fill the GC/CCO permanently (at a slightly higher salary) and demoted the plaintiff, a woman, to Assistant General Counsel.

This did not sit well with the plaintiff, who eventually sued for sex discrimination.

In cases like these, the plaintiff bears the ultimate burden of proving sex discrimination once the employer offers legitimate, non-discriminatory reasons for the allegedly adverse employment actions (the decision to make her Acting General Counsel and her subsequent demotion to Assistant General Counsel) by showing that the defendant’s decision was a pretext for unlawful bias.

What I didn’t tell you already is that the President had documented significant doubts about the plaintiff’s abilities and growing dissatisfaction with her performance.

The plaintiff claimed she was more qualified for the GC/CCO job than her male replacement. Indeed, she had more experience in private practice, clerked for a federal judge, and attended a more prestigious law school. But the court was nonplussed, viewing these as not “so superior…that no reasonable person, in the exercise of impartial judgment, could have chosen him over her.”

But the “final nail in the coffin of [plaintiff’s] Title VII sex discrimination claim,” according to the court, was that the President was the same person who promoted and later demoted the plaintiff. When “the person who decided to “impose an adverse employment action was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire.”

This so-called same-actor inference is not necessarily the smoking gun to disprove discrimination in all cases. However, it does impede the plaintiff’s ultimate burden of proof to establish that the one decisionmaker suddenly became sexist.

In this instance, case dismissed.

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