June 14, 2017  |  Articles

Employment Law: Maui Employee Discovers Boss Promoting Lunch Buddy Isn’t Illegal

Siren On Police Car

By Amanda M. Jones

A police officer sued Maui County after she was passed over for a promotion, claiming a male officer was promoted instead of her because he allegedly “lunched” with the police chief nearly every day and was a classmate of the deputy chief. A Hawai‘i judge recently dismissed the case, saying the female officer failed to demonstrate that any illegal conduct had occurred.

‘Lunching’ with chief allegedly leads to promotion

Mollie Klingman began working for the Maui Police Department in 1987. In a lawsuit she filed against Maui County last year, she claimed she applied for a promotion to police inspector in 2013 but was told she shouldn’t have bothered applying because the job was going to be filled by a male officer. The officer who was selected for the promotion was later promoted again to deputy police chief.

In November 2014, Klingman applied for the police inspector position again. She claimed she was qualified for the position because she had performed the job in an acting capacity more than 25 times in the past. Despite her qualifications, she said, her interview lasted just 23 minutes and was unstructured and informal, and she was asked very limited questions about the job. The job was again awarded to a male officer, who Klingman alleged was less experienced, less qualified, and had less seniority than she did.

Klingman sued the county for sex discrimination under Title VII of the Civil Rights Act of 1964 and negligent and intentional infliction of emotional distress. She alleged that the officer who was selected for the promotion “had socialized” with the police chief and was a classmate of the deputy chief. She also claimed that the chief and the officer who got the promotion “lunched together nearly every day.”

Maui County seeks dismissal

Maui County responded to Klingman’s lawsuit by asking the court to dismiss the case. With respect to the sex discrimination claim, the county argued that even if Klingman’s allegations were true, they didn’t establish that anything illegal had occurred. And because she didn’t claim that she had any direct evidence of discrimination (e.g., clearly sexist actions or statements), she would need circumstantial evidence to maintain her lawsuit.

The county argued that Klingman also failed to allege the facts necessary to make a case of sex discrimination with circumstantial evidence because she couldn’t show she was treated differently than any similarly situated male employee. The judge agreed that her complaint was deficient because she hadn’t alleged that she and the officer who was selected for the promotion were “similarly situated.”

The county also pointed out that the theory of Klingman’s case was that the officer got the promotion because he allegedly was friends with the deputy chief, not that the promotion decision was based on her gender. The judge agreed with the county that the officer’s “friendship with [the deputy chief] would not be within the scope of Title VII.” As a result, the court dismissed the sex discrimination claim. However, the judge gave Klingman an opportunity to refile the complaint and address the deficiencies in her sex discrimination claim that were outlined in the ruling.

Emotional distress claims fail

The court also dismissed Klingman’s claims for negligent and intentional infliction of emotional distress. The judge explained that the claims failed for two independent reasons.
First, Hawai‘i workers’ compensation statute bars separate claims for emotional distress because workers’ comp is the exclusive remedy for such claims. Second, Klingman hadn’t alleged conduct that was sufficiently severe to entitle her an emotional distress claim.

Accordingly, the judge dismissed the emotional distress claims and ruled that Klingman couldn’t reassert them in her amended complaint. Klingman v. County of Maui, No. 16-00399 (D. Haw., Nov. 29, 2016).

Bottom line

This case isn’t over for Maui County. Klingman filed an amended complaint less than a month after the judge’s decision, again asserting illegal discrimination. Because the case is still in its early stages, the county hasn’t had a chance to present the reasons it selected another officer for the promotion over Klingman.

Regardless of how the case turns out, the court’s first decision illustrates a common misconception about employment laws. People often believe that any employ-ment decision that seems unfair gives rise to an action-able claim. Selecting an applicant for a job or a promo-tion because he is “friends” with the boss would fall into the category of an action that seems “unfair.” Cer-tainly, if it’s true, promoting the boss’s friend wouldn’t be in keeping with the concept of merit-based decisions. However, unfair or unwise employment decisions aren’t necessarily illegal.

Amanda M. Jones is a partner in Cades Schutte’s Litigation Department. She is currently the editor of Hawai‘i Employment Law Letter, where this article first appeared. In that role, she is also a member of Employers Counsel Network.