In Culpepper v. Department of Agriculture, No. 10-2627 (8th Cir., December 28, 2011), a U.S. Court of Appeals struck down a federal employee’s argument that she was not selected for a job, for which she did not apply, because of discrimination. The employee argued that she did not apply for the job because doing so would have been futile. In rejecting the employee’s argument, the court clarified the standard for showing futility in a non-selection case where the aggrieved did not apply for the position in question.

Devonna Culpepper worked as a loan technician for the Department of Agriculture. From her early childhood, Culpepper suffered from a severe hearing impairment, which qualified her for protection from disability discrimination.

In May 2006, Culpepper sent a letter to USDA’s office of civil rights alleging discrimination and retaliation in a vacancy announcement for a loan specialist position for which she did not apply. Culpepper claimed the vacancy announcement was discriminatory because it required that the incumbent have "experience in listening."

After USDA failed to respond to her letter, Culpepper took her allegation of discrimination to a U.S. District Court. That court rejected Culpepper’s discrimination argument and Culpepper appealed to the 8th Circuit. The court of appeals upheld the district court’s decision. It found that although an employee normally must show that she applied for a position and was rejected in order to show discriminatory non-selection, failure to apply for the position may be excused if the discrimination she is alleging would have made application for the position futile and if she can show that absent the discrimination, she would have applied for the position.

The circuit court found that evidence showed that Culpepper did not apply for the loan specialist position because at the time of the vacancy announcement, her father had recently died. The court concluded that Culpepper had not shown a link between her failure to apply for the position and the allegedly discriminatory "experience listening" language in the vacancy announcement. The court therefore did not decide whether the "experience listening" language was discriminatory.

The circuit court also rejected Culpepper’s argument that she should have been promoted non-competitively through accretion of duties. She argued that her supervisors had initiated the accretion of duties promotion process for her non-disabled coworkers by requesting desk audits for them, but not for her. The court of appeals found Culpepper could not bring a valid claim of discriminatory failure to grant her an accretion of duties promotion, not only because she did not apply for such a promotion, but she never requested a desk audit herself, never asked her supervisors to request one on her behalf, and never complained that she was performing duties above her grade level. The court held that an employee who does not formally apply for a promotion must make it clear to her superiors that she is interested in the promotion before she can successfully bring a claim of discrimination.

The decision in this case illustrates the importance of actually applying for positions, even if one believes that the application will be futile because of discrimination; although possible, proving discriminatory non-selection is much more complicated and difficult where an employee has failed to apply.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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