Failure-to-Promote Race Discrimination Claim Survives Dismissal

In Hunt v. Con Edison Co. N.Y.C., 16-CV-0677, 2017 WL 6759409 (E.D.N.Y., 2017), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s failure-to-promote race discrimination claim under Title VII of the Civil Rights Act of 1964.[1]The court also, inter alia, dismissed plaintiff’s retaliation claims.

The court summarized the basic legal framework:

To establish a prima facie case of employment discrimination based on a failure to promote claim under Title VII, a plaintiff must show that (1) he is a member of a protected class, (2) he applied and was qualified for a position for which the employer was seeking applicants, (3) he was not selected for the position, and (4) the failure to promote occurred under circumstances giving rise to an inference of discriminatory intent.

The court held that plaintiff sufficiently alleged each element of this claim. As to the last element, the court explained:

To survive a motion to dismiss an employment discrimination claim, a plaintiff must allege “facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Kpaka v. City Univ. of N.Y., — F. App’x – — , — 2017 WL 3866642, at *1 (2d Cir. Sept. 5, 2017) (quoting Vega, 801 F.3d at 87). Whether facts give rise to a plausible inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.’ ” Howard v. MTA Metro-N. Commuter R.R., 866 F. Supp. 2d 196, 204 (S.D.N.Y. 2011) (quoting Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). “The facts required … to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination,” but rather “need only give plausible support to a minimal inference of discriminatory motive.” Id.; see also Vega, 801 F.3d at 87 (“[A] plaintiff must allege that the employer took adverse action against [him] at least in part for a discriminatory reason, and [he] may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.”) “Courts making the plausibility determination should do so mindful of the elusive nature of intentional discrimination and the concomitant frequency by which plaintiffs must rely on bits and pieces of information to support an inference of discrimination, i.e., a mosaic of intentional discrimination.” Opoku v. Brega, No. 15-CV-2213, 2016 WL 5720807, at *5 (S.D.N.Y. Sept. 30, 2016) (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998)) (some citations and internal quotation marks omitted). *9 “An inference of discrimination can arise from circumstances including, but not limited to, ‘the employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.

Plaintiff sufficiently alleged this element:

[Plaintiff] specifically states that no minority candidate has been promoted to a supervisory role. Plaintiff also states that the mechanics who have been promoted are all white, that Plaintiff trained more than half of them, and many of them have less experience than Plaintiff.

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1. The court also, inter alia, dismissed plaintiff’s retaliation claims.