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Today, our employment discrimination lawyers look at the recent case of Hankerson v. Legacy Treatment Services Inc., No. 21-3043, 2022 WL 17091116, at *2 (3d Cir. Nov. 21, 2022) out of the United States Court of Appeals for the Third Circuit. In the case, the plaintiff-employee, Julia Hankerson, was hired for a staff position but shortly after agreed to supervise clinical operations. After some time, Hankerson applied for a promotion to a posted position, but was denied the promotion because she did not have the preferred licensure. Around the same time, Hankerson’s supervisor rejected her proposal for changing the intake process. Apparently upset by these circumstances, Hankerson stated that she would no longer supervise the clinical operations “effectively immediately.” The employer then fired Hankerson because her abrupt resignation as a supervisor did not allow for transition planning.

Hankerson then sued for race discrimination under Title VII of the Civil Rights Act of 1964 as well as age discrimination under Age Discrimination in Employment Act of 1967 (“ADEA”).

Can I sue for being denied a promotion because of my race or age?

Title VII makes is unlaw to deny employee a promotion based on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, disability, or age. In order to be successful on a claim for failure to promote, the employee must present evidence: (1) the employee in one of the above protected classes; (2) the employee was qualified for and applied for the position; (3) the employer rejected the employee; and (4) the employer promoted an equal or lesser qualified person who was not a member of the same protected class. (Best Law Read: What does prima facie mean?). If the employee meets this initial burden of proof, the employer then has the opportunity to provide a legitimate non-discriminatory reason for not promoting the plaintiff-employee. Should the employer provide a non-discriminatory basis, the employee can then prevail by presenting evidence that the employer’s reason was pretextual. (Best Law Read: Employment Discrimination Question: What Is Pretext? ).

Our employment discrimination attorneys have already addressed some common problems that will sink a discriminatory failure to promote case. (Best Law Read: There Must Be An Open Position To Prove Failure To Promote Case Under Title VII; Applying For A Job Is Key To Failure To Promote Claim).

Obviously, if a particular licensure is required for a position, an employee’s failure to have such licensure will clearly block a failure to promote claim. However, what about a situation where the licensure is merely a preference and not a requirement? Under that circumstance, the employee will still have a difficult time showing that the licensed person who received the promotion was an “an equal or lesser qualified person.” This doomed Hankerson failure to promote claims.

That being said, all cases are different, and you should consult an employment law lawyer about whether the stated preference for the qualification were merely pretextual, such as when the licensure would have no real impact on doing the job.

Can I be legally fire for refusing to perform duties that outside of my job description?

Yes. Absent a contract that specifically defines the job requirements, employers can make employees’ employment contingent on performing the tasks dictated at the times required. (Best Law Read: Can My Job Require Mandatory Overtime?; Yes, You Can Be Fired For Bitching About Your Schedule And Showing Up Late; Can I be Fired For Clocking Out At The End Of My Shift?).

In this case, Hankerson exercised her option to no longer do part of her designated job duties and the employer exercised its option to end her employment because of it. Absent direct comments about her race or age relating to this decision to terminate Hankerson would be difficult to overcome. Indeed, the United States Court of Appeals for the Third Circuit held that despite Hankerson’s arguments about race and age, “ all the evidence points the other way: Hankerson’s decision to leave her supervisory duties without warning caused her termination.” Id. at *2.

What impact does an unemployment decision have on a subsequent wrongful termination claim?

In order to get unemployment benefits, state agencies typically determine if the employee was fired without cause. In some states, this decision will have a binding effect on subsequent wrongful termination cases. For example, if the administrative proceeding in one of these states concludes that the employer fired the employee without proper cause, the employer will be blocked from arguing that there was proper cause in a later wrongful termination lawsuit. The legal term for precluding arguing this point for a second time after a determination is called collateral estoppel. Whether collateral estoppel applies following a state agency determination in an unemployment proceeding varies from state to state. Many states provide that because of the different process and burdens of proof, the state agency determination regarding whether a termination of employment was justified will have absolutely no bearing on subsequent wrongful termination litigation. As our wrongful firing lawyers have previously blogged, Ohio law is one of the states where the administrative unemployment determination will not be considered. (Best Law Read: Employment Law: Do I Still Have A Wrongful Termination Claim If My Unemployment Was Denied?).

In Hankerson, the employee was awarded unemployment benefits because the New Jersey Department of Labor Board of Review found Hankerson’s job description “did not require her to supervise” other social workers, and that she had been supervising solely “as a professional courtesy.” To that end, the  Department of Labor Board concluded that “her request to continue working as a mental health therapist was improper and a disregard of the employer’s standards of behavior.” Hankerson argued that her employer was thus collaterally estopped from arguing that it had a justified reason for firing her. The United States Court of Appeals for the Third Circuit rejected this argument: “Federal law requires federal courts to give a state administrative decision the same preclusive effect it would receive in that state. See Dici v. Pennsylvania, 91 F.3d 542, 547–48 (3d Cir. 1996). And New Jersey state law provides that, unlike most other state administrative proceedings, New Jersey Department of Labor unemployment decisions are not entitled to preclusive effect in state courts. Olivieri v. Y.M.F. Carpet, Inc., 897 A.2d 1003, 1014–15 (N.J. 2006).” Id. at *3.

How do I find out if I have a claim for wrongful termination?

Best Employment Lawyer Answer: Because every employee faces different circumstances that may have lead to being wrongfully fired or terminated, or that may have lead to a failure to promote or other types of discrimination based on race, national origin, gender, age, religion or disability; the best way to find out is you have a viable claim is to talk directly with an employment discrimination attorney.  You can do that by calling the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Spitz Lawyers Win $1.33 Million Verdict; Employment Law: Avoid Hiring The Wrong Attorney). Call our Ohio, Michigan, and North Carolina attorneys to get help now. Spitz, The Employee’s Law Firm is dedicated to helping employees just like you.


This employment law website is an advertisement. The materials available at the top of this wrongful termination page and at this employment discrimination law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I sue if I was not promoted because I’m Black”, “What should I do if I was fired for no reason,” “My discriminates against older workers”, or “I was fired today because I refused to work not in my job description”, it would be best for to contact our top attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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