Failure-to-Promote Claim Survives Dismissal Against BNY Mellon

In Wheeler v. The Bank of New York Mellon, 2018 WL 3730862 (N.D.N.Y. August 6, 2018), the court held, inter alia, that plaintiff – a Mexican woman – plausibly asserted a failure-to-promote employment discrimination claim. In reaching this conclusion, the court pointed to plaintiff allegation that the less-qualified American woman was given the position instead. This, held the court, was sufficient at this stage to survive dismissal

From the decision:

Here, the Court finds that Plaintiff’s allegations provide “plausible support to a minimal inference of discriminatory motivation.” Vega, 801 F.3d at 83. Plaintiff argues that she is a Mexican woman who has repeatedly applied for the Account Administrator II position since 2011, but that, in 2015, Dailey was hired instead of Plaintiff. SAC at 3. Furthermore, Plaintiff alleges that she was more qualified than Dailey. To support this claim, she appended several documents to the SAC, including her resume and a document that appears to describe BNY’s requirements for the Administrator II position. Dkt. No. 43 at 25–39 (“Exhibits”) at 25. The position requires a “Bachelor’s Degree or equivalent” and “[t]wo to four years [of] experience.” Id. As the Court found in the June 2017 Order, June 2017 Order at 13, Plaintiff’s resume indicates that she possesses both of these requirements, Exs. at 25. Furthermore, the Account Administrator II position involves various client service duties, with which Plaintiff claims to have decades of experience. Id. at 25, 29.

*6 By contrast, Plaintiff alleges that Dailey, an American woman, only had one year of experience as an Account Administrator I before being promoted to Account Administrator II. SAC at 3. The Court finds that Plaintiff has plausibly alleged that Dailey was less experienced than her and, thus, less qualified for the Account Administrator II position. Therefore, because Defendant does not state any other grounds for dismissing Plaintiff’s Title VII failure to promote claim with respect to Dailey’s promotion, that claim survives dismissal to the extent that it is premised on Defendant’s promotion of Dailey.