Discrimination claims based upon an employer's failure to promote or hire remain among the more difficult claims for employees. As discussed in the recent case of Nunn v. NHS Human Services, No. 13-cv-3140, 2015 U.S. Dist. LEXIS 74176 (E.D. Pa. June 9, 2015), in the U.S. District Court for the Eastern District of Pennsylvania, employees seeking to demonstrate discriminatory animus must demonstrate both comparable qualifications to the selected candidate and pretext in the decision-making process.

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Restructured HR Department

Sabrina Nunn, an African-American female, had worked for NHS Human Services Inc. for about 18 months when, in mid-2010, the company announced that it would be restructuring its human resources department, according to the opinion. At the time, Nunn was working for NHS as its corporate senior director for HR information systems/HR projects. In that role she primarily managed NHS's HRIS system (Kronos). She supervised two employees. Before joining NHS, Nunn had worked for 14 years for various companies—primarily managing HRIS systems. Nunn's final pre-reorganization evaluation was overall “superior”—with the caveat that she had “issues with teambuilding” and in her “interpersonal skills,” the opinion said.

As part of the reorganization, Nunn applied for the position of director of human resources services in early 2011. Although Nunn, a high-school graduate, was facially underqualified for the position, which listed a “master's or advanced-level degree” as a qualification, she advanced to be among the final three candidates from an original pool of eight to 10.

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White male selected for job

Ultimately, however, she was not selected for the position. The successful candidate, Michael Oglensky, a white male, had not initially even applied for the position, but was identified by the company after he had interviewed for another HR position as an external candidate. He did, however, have a Bachelor of Arts in industrial relations, an MBA and had 18 years of HR experience, including a number of years as a high-level HR manager.

When Nunn learned that she had not been selected for the HR director position, she applied for the position of director of human resources information systems, a lower-level position that would have required that she take a pay cut from her then-present position.

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Second candidacy fails

Oglensky was the decision maker for this position, and he selected a white male, Randy Gilbert. Oglensky based his decision largely on Nunn's interview, in which she stated that she did not believe in “best practices” and did not offer any suggestions to improve the company's Kronos system, the opinion said.