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Exciting news came from the Sixth Circuit last month when a three-judge panel ruled on Philbrick v. Holder

Posted by Leizer Goldsmith | Oct 07, 2014 | 0 Comments

Our Firm had a big success at the United States Court of Appeals for the Sixth Circuit last month when a three-judge panel ruled in our client's favor of in the case of Philbrick v. Holder, reversing a lower Michigan federal court's decision and ruling that it must be permitted to go to trial. Our plaintiff, Susan Philbrick, a Deputy U.S. Marshal with the United States Marshals Service, was denied promotions to Assistant Chief Deputy U.S. Marshal, in both 2009 and 2011.

Supervisor Philbrick's 2009 case is built around the fact that she: a) had superior qualifications to the selectee's; and b) had the recommendation of the Marshal for the Eastern District of Michigan–a fact which would almost always assure her selection. The selectee was a minority male, while Supervisor Philbrick is white. In this case, management made no direct statements of discriminatory intent, or even of malice. Instead, discriminatory intent becomes apparent from viewing the context. The focus is on the Marshal's surprise at being overruled, and the admission of the Career Board Chair, that Supervisor Philbrick really was better qualified (although he blames her for allegedly not demonstrating that sufficiently in her application). The Sixth Circuit reversed as to this management action, under a sex discrimination theory. In a part of the ruling that songwriter Shel Silverstein and the late, great Johnny Cash would have enjoyed, the Court held that that it was irrelevant that the Career Board Chair did not know Supervisor Philbrick when he decided not to promote her, since he obviously could have inferred that Supervisor Philbrick was a woman, since her name was Susan.

Regarding the 2011 non-selection, we primarily alleged retaliation. Management had cross examined the Marshal sternly at the hearing on our 2009 case, and he responded to the pressure by again rejecting Supervisor Philbrick for the same position as in 2009. The Court agrees with us that the first time the Marshal acted adversely to Supervisor Philbrick is a key date for discerning management's retaliatory intent, not when the final decision to reject her promotional application was taken. What happened is that Marshal Grubbs first signed off on a ranking of candidates in which he placed our client third, behind a particular candidate who was obviously inferior to her. That was key evidence of retaliatory intent despite the technicality that the final selection was based on a different list upon which that unqualified candidate did not appear.

The Court also holds that a five-week interlude between activity discrimination complaint and non-selection would not be enough to require a trial, without more.

As Philbrick's non-selections have been reinstated for trial, on our most favored bases, this decision is a great success.

By The Goldsmith Law Firm | Posted on October 7, 2014

About the Author

Leizer Goldsmith

Position: Principal Born: Halifax, Nova Scotia, Canada, June 22, 1962 Bar Admissions 1988, Massachusetts 1989, District of Columbia 1992, Maryland, U.S. Court of Appeals, Fourth, Fifth and District of Columbia Circuits; 1995, U.S Supreme Court Education University of Michigan (B.A...


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