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Job rewrite used to defend Title VII claim

Can a change-up on a job description help an employer prove a job was no longer open after it fired the person who had the job and she filed a Title VII case?

A court may take on that question now that a public affairs officer at a federal agency gets a chance to try her race-discrimination case.

Last month, the 4th Circuit U.S. Court of Appeals vacated a grant of summary judgment to defendant Stuart W. Bowen Jr., Special Inspector General for Iraq Reconstruction.

Bowen recruited plaintiff Denise Burgess, an African-American female, to be the agency’s chief public affairs officer in 2007. In her legal complaint, Burgess alleged a supervisor targeted her and an African-American assistant and fired both staffers, allegedly for budgetary reasons. But after being told her job was eliminated, a less-qualified white woman was hired to handle public affairs, Burgess said. She said the supervisor told her that “people who file discrimination complaints are weak links in the chain” who are “looking to excuse their own personal failings.”

Alexandria Senior U.S. District Judge James C. Cacheris accepted the agency’s assertion that the public affairs office had been reorganized and the job had changed.

But the appellate court said neither party articulated a standard for properly assessing whether a job remains open in the face of some changes in the written job description. Cacheris did not credit the plaintiff’s evidence showing the positions were intended to be “functionally equivalent” and involve “the same managerial and oversight responsibilities.” The transfer of most of Burgess’ job duties to the new position was enough to make out a prima facie case, the 4th Circuit panel said in its unpublished opinion.

And the agency couldn’t necessarily fall back on budgetary pressures as the basis for Burgess’ termination.

Judge Albert Diaz wrote in Burgess v. Bowen that a jury could reasonably find the decision to terminate Burgess and to hire her replacement occurred only after Burgess had complained about discrimination.

The appellate panel vacated summary judgment for the agency and remanded the case for trial on Burgess’ claims related to her termination and retaliation claims.
–Deborah Elkins

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