Lieutenant Sufficiently Alleges Discriminatory Failure to Promote and (Limited) Retaliation Claim

In Feliciano v. City of New York, No. 14 CIV. 6751 PAE, 2015 WL 4393163 (S.D.N.Y. July 15, 2015), the Southern District of New York held that plaintiff, a Hispanic Lieutenant employed by the New York City Sheriff’s Department, sufficiently alleged a prima facie case of discriminatory failure to promote based on race and national origin under Title VII of the Civil Rights Act of 1964, the NYS Human Rights Law, and the NYC Human Rights Law.

Judge Engelmayer explained:

To establish a prima facie case of discriminatory failure to promote under Title VII, a plaintiff must demonstrate that: (1) [he] is a member of a protected class; (2) [he] applied and was qualified for a job for which the employer was seeking applicants; (3) [he] was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff’s qualifications from [I]n establishing a prima facie case the plaintiff must show that [he] applied for an available position for which [he] was qualified, but was rejected under circumstances giving rise to an inference of unlawful discrimination.

The only dispute was “whether, as to the facts pled, the decision not to promote Feliciano occurred under circumstances giving rise to an inference of discrimination.”

Here, plaintiff satisfied his pleading burden:

Under governing Second Circuit precedent, Feliciano has pled sufficient facts to show an inference of discrimination. The Circuit has held that when a plaintiff applies for and is denied a position, the fact that the position was filled by someone outside of the plaintiff’s protected class is itself enough to give rise to such an inference. … Here, it is undisputed that [the employee] selected as Under–Sheriff[] is not Hispanic and thus is not in Feliciano’s protected class. Given this Circuit’s standard, the Amended Complaint, although otherwise barren of factual allegations indicative of discrimination, has pled a prima facie case of discriminatory failure to promote.

The court rejected defendants’ argument “that any inference of discrimination is negated by the fact that a member of Feliciano’s protected class … was selected for an interview”, noting that “courts have consistently emphasized that the ultimate issue [in Title VII cases] is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace.” (Emphasis in original.)

The court dismissed plaintiff’s hostile work environment and section 1981 and 1983 claims against the individual defendants and the City, and narrowed his retaliation claim to limit it to retaliatory failure to promote based on his having filed two previous discrimination lawsuits.

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