Failure-to-Promote Claim Properly Dismissed; Proposed Comparators Did Not Engage in Similar Conduct

In Wood v. New York City Transit Authority, 2017 WL 4871371 (2d Cir. Oct. 30, 2017) (Summary Order), the court affirmed the dismissal of, inter alia, plaintiff’s failure-to-promote claim. Plaintiff, a New York City bus driver, filed this lawsuit after he was not promoted to dispatcher.

The court gives us an overview of the applicable law:

To establish a prima facie claim for failure to promote, plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for the position at issue; (3) he was denied the position; and (4) the circumstances of the adverse employment decision give rise to an inference of unlawful discrimination. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Once an employer has proffered a non-discriminatory reason for failure to promote an employee, the employee must proffer evidence that his credentials were so superior to the person hired that “no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.”

Applying the law, the court explained:

We agree with the District Court that, although Wood established a prime facie claim for failure to promote, he subsequently failed to proffer any evidence that the NYCTA’s legitimate, non-discriminatory reason for not promoting him to dispatcher was pretextual. The record indicates that Wood was not promoted because he had a prior 30-day suspension for gross misconduct for a “major preventable accident.” In June 2006, he collided with a car at an intersection and crashed his bus into a nearby house, injuring multiple people. The NYCTA later found that Wood had failed to exercise appropriate defensive driving techniques and that he had been driving at an excessive speed. Though the NYCTA first recommended that Wood be terminated, it ultimately settled on a 30-day suspension. In an effort to rebut these undisputed facts, plaintiff pointed to other employees who had been promoted over him. However, none of these employees had been penalized for similar or worse conduct, and each had better driving and disciplinary records. Plaintiff thus failed to establish that the NYCTA’s decision to promote other employees over him amounted to pretext for an otherwise discriminatory action, and the District Court properly found for defendant in this respect.

The court also found that plaintiff “failed to prove that a similarly-situated NYCTA employee outside of his protected group received preferential treatment in promotion.” In particular, neither of plaintiff’s proposed comparators engaged in misconduct as serious as plaintiff’s.