In Uwoghiren v. City of New York, 2017 NY Slip Op 01782 (App. Div. 1st Dept. March 9, 2017), the court affirmed the summary judgment dismissal of plaintiff’s claim that he suffered a discriminatory failure to promote due to his national origin.
From the decision:
Plaintiff established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. Defendants then offered legitimate, nondiscriminatory reasons for promoting two employees who were not of Nigerian origin. Decision-makers at DJJ testified to the effect that plaintiff limited his work to fulfilling the minimal requirements of his job, that he sometimes balked at assignments without good reason, and that he failed to meet all of his goals. Defendants demonstrated in contrast that the promoted employees had done outstanding work in positions relevant to the two vacancies at issue.
Plaintiff failed to raise triable issues of fact as to whether defendants’ proffered reasons for these decisions were pretextual or incomplete, given the absence of any evidence from which a reasonable jury could infer that his national origin played a role in defendants’ decision to pass him over for promotions (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [1st Dept 2011], lv denied 18 NY3d 811 ; Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 [1st Dept 2009], lv denied 14 NY3d 701 ). Plaintiff admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 309 ). Even if the promotions contravened Civil Service Rules and Regulations § 3.3(a) because the promoted individuals were provisional rather than permanent employees, this technical violation does not establish a discriminatory motive. Plaintiff’s other claims that the promotions violated policies and regulations are unsupported. His testimony that the promoted employees were appointed based on friendship with the decision-makers is unavailing.
The court also held that defendant’s failure to advertise the positions in question did not give rise to an inference of discrimination, but “merely relieves  plaintiff of [his] burden to show that [he] applied for the position[s].”
Plaintiff did not make out a prima facie showing in support of his claim that he was paid less than a peer of another national origin. While “he and the other employee had the same civil service title, they were not similarly situated in light of the differences in their experience.”