ADA Denial-of-Promotion Claim Properly Dismissed; Pretext Argument Was “Mere Speculation”

In Carvalho v. Associated Brands Inc., No. 17-622-cv, 2017 WL 6616707 (2d Cir. Dec. 28, 2017) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s denial-of-promotion claim under the Americans with Disabilities Act (ADA).

As to that claim, plaintiff argued that the defendant discriminated against him based on his anxiety disorder by denying him a promotion to a machine-operator position.

First, some law:

Claims alleging discrimination under the ADA are subject to the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (per curiam). Under that framework:

once a plaintiff produces minimal evidentiary support for the claim of discriminatory motivation, the burden of production shifts to the employer to articulate a non-discriminatory reason for the adverse employment action. But once the employer has set forth its non-discriminatory justification, the plaintiff must then produce evidence capable of carrying the burden of persuasion that the employer’s action was at least in part motivated by discrimination.

When a plaintiff sets forth a prima facie case of discriminatory motive (which we assume Carvalho has), and the defendant satisfies its burden of production with admissible evidence showing a legitimate, non-discriminatory justification (which Associated has), “[t]he plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action

Applying the law, the court concluded that plaintiff’s claims did not survive the “pretext” portion of the analysis.

From the Order:

As to at least one of Associated’s proffered non-discriminatory reasons for denying Carvalho the promotion––its decision not to fill the position to which Carvalho applied, a “bouillon machine operator”––Carvalho has failed to produce evidence supporting a rational finding of pretext. It is undisputed that Associated, after accepting applications from four individuals for the position, made a business decision that the position was no longer necessary and elected not to fill it. “Although courts must be careful not to second-guess an employer’s business judgment that it makes in good faith, [a] plaintiff must be allowed to show that h[is] employer’s asserted reasons … were a pretext and that the real reason was h[is] [disability].” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1226 (2d Cir. 1994). Carvalho’s claim of pretext is based on mere speculation. He provides no evidence that Associated’s business judgment to not fill the position––and in doing so, also reject other candidates––was mere pretext for its purported actual motivation: discriminating against Carvalho because of his disability.3 Therefore, we affirm the district court’s decision to grant summary judgment in favor of Associated on Carvalho’s ADA denial-of-promotion claim.

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