In Falu v. Cty. of Orange, No. 16-CV-0448 (NSR), 2017 WL 2889513, at *6 (S.D.N.Y. June 30, 2017), the court held that the plaintiff – a female corrections officers – sufficiently alleged a failure-to-promote gender discrimination claim.
The court summarized the legal framework for such a claim:
As noted, Falu’s Amended Complaint can be construed as alleging that she suffered discrimination when Defendants failed to promote her. See, e.g., Stewart v. City of N.Y., No. 11-CV-6935, 2012 WL 2849779, at *6 (S.D.N.Y. July 10, 2012) (“Failure to promote … qualif[ies] as an adverse employment action under Title VII.”). In order to establish a prima facie case of discrimination due to a failure to promote, Plaintiff must show that “(1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the [P]laintiff’s qualifications.” Opoku v. Brega, No. 15-CV-2213 (KMK), 2016 WL 5720807, at *11 (S.D.N.Y. Sept. 30, 2016) (quoting Rodriguez v. City of N.Y, No. 13-CV-6552, 2014 WL 1399415, at *2 (E.D.N.Y. Apr. 10, 2014) (internal quotation marks omitted)).7 With regard to the fourth prong of this test, the Second Circuit has held that an inference of discrimination may be drawn either from (1) direct evidence of discriminatory intent, or (2) a showing by the Plaintiff that “she was subject to disparate treatment … [compared to persons] similarly situated … [to herself].” []
However, for a complaint to survive in an employment discrimination case it “does not rest on whether it contains specific facts establishing a prima facie case under McDonnell Douglas.” Lax v. 29 Woodmere Blvd. Owners, Inc., 812 F.Supp. 2d 228, 236 (E.D.N.Y. 2011). This is because, at the pleading stage, the Court does not apply the McDonnell Douglas burden shifting test to analyze the evidentiary support for the discrimination claims. See Gonzalez v. Carestream Health, Inc., 520 Fed. Appx. 8, 9-10 (2d Cir. 2013) (“To survive a motion to dismiss, a complaint alleging workplace discrimination … need not allege specific facts establishing a prima facie case under McDonnell Douglas …”); Rosario v. City of New York, No. 11-CV-09008 (PAC) (SN), 2013 WL 782408, at *6 (S.D.N.Y. Jan. 9, 2013), adopted by 2013 WL 782581, at *2 (S.D.N.Y. Mar. 1, 2013) (“An ‘employment discrimination plaintiff need not plead a prima facie case of discrimination [under McDonnell Douglas Corp. v. Green.’ ” (quoting Bermudez v. City of New York, 783 F.Supp. 2d 560, 575 (S.D.N.Y. 2011))). Indeed, “[t]o measure a plaintiff’s complaint against a particular formulation of the prima facie case at the pleading stage [would be] inappropriate,” because “the prima facie case operates as a flexible evidentiary standard” that “should not be transposed into a rigid pleading standard for discrimination cases. []
Rather, “[this Court] consider[s] only whether the complaint includes factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” Carestream Health, 520 Fed. Appx. at 10 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955); see also Boykin v. KeyCorp, 521 F.3d 202, 212-13 (2d Cir. 2008). In other words, “the Court asks only whether a plaintiff has pled a prima facie case, not whether a plaintiff has established that case. Thus, the standard is simply whether [the] plaintiff’s complaint, construed liberally, satisfies the federal pleading requirements for a claim” of discrimination.
Applying the law, the court held that plaintiff met her pleading burden:
[On] June 7, 2011, Falu took a promotion examination, and she ranked within the top twenty candidates for a sergeant promotion. As far as the Court is able to deduce the gender of the candidates listed, Falu seems to be one of the top three women on the eligibility list. (See Defs.’ Notice Mot. to Dismiss, Ex. C). Nevertheless, from 2011 to 2015 Defendants allegedly passed over Falu for a sergeant position, which was instead given to twenty other male employees. (Compl. ¶ 25.) “During the life of the [ ] eligibility list, [D]efendants failed to promote any of the ten (10) qualified females from the eligibility list to the rank of sergeant.” (Id. ¶ 28.) Falu remained on the list, despite being “reachable for promotion under extant Civil Servant rules,” or “better qualified than at least some of the males promoted.” (Id. ¶ 29.)
In the Court’s view, based on these allegations, Falu has pleaded with particularity that she was not given the promotions because of her gender. Indeed, based on these allegations, it is plausible that due to her sex, that Falu was treated less favorably than her similarly-situated male counterparts.