2d Circuit: Lack of Qualification Justifies Dismissal of Failure-to-Promote Race/National Origin Discrimination Claims

In Patel v. City of New York, 2017 WL 4862745 (2d Cir. Oct. 27, 2017) (Summary Order), the court affirmed the dismissal of plaintiff’s failure-to-promote employment discrimination claim.

The court summarized the law as follows (paragraphing altered):

[C]laims for race and national origin discrimination under Sections 1981 and 1983 are analyzed under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). Under the McDonnell Douglas framework, “a plaintiff must first establish a prima facie case of discrimination.” Id. “Once a plaintiff meets th[e] initial burden, the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason” for the alleged discriminatory action. Id. at 492. “If defendant does so, the burden returns to the plaintiff to show that the real reason for [the alleged discriminatory action] was…race and national origin.” Id. In the failure-to-promote context, a plaintiff ordinarily must demonstrate the following elements to make out a prima facie case: (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 plaintiff’s qualifications. Estate of Hamilton v. City of New York, 627 F.3d 50, 55 (2d Cir. 2010). “Of course, the fourth element is also established if the employer fills the position with a person outside the protected class who was similarly or less qualified than the plaintiff.”

The court considered, and rejected, plaintiff’s claims as to his lack of promotion as to three positions. As to one, plaintiff presented “no evidence demonstrating that he applied for the position …, or that the City failed to post a notice about the availability of the position, which would relieve him of the obligation to apply[.]” As to the two other positions, plaintiff failed to rebut the City’s legitimate, nondiscriminatory reason for hiring candidates other than plaintiff, “chiefly because he has not demonstrated that his qualifications were comparable to those of the other two candidates.”