Race-Based Failure-to-Promote Claim Insufficiently Alleged, Court Holds

In Hunt v. Consolidated Edison Company of New York, Inc., 18-CV-7262, 2021 WL 3492716 (EDNY Aug. 9, 2021), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s race-based failure-to-promote claim asserted under Title VII of the Civil Rights Acts of 1964 (Title VII) and the New York City Human Rights Law (NYCHRL).

After summarizing the “black letter” law governing these claims, the court explained:

Plaintiff fails to identify any relevant positions for which he could have been considered and therefore fails to state a claim.

To give plausible support to the second element of the prima facie case at the motion to dismiss stage, a plaintiff must ordinarily “allege that she or he applied for a specific position or positions and was rejected therefrom, rather than merely asserting that on several occasions she or he generally requested promotion.” Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998); see also Barrett v. Forest Lab’ys, Inc., 39 F. Supp. 3d 407, 442 (S.D.N.Y. 2014) (granting motion to dismiss failure to promote claims because the plaintiffs’ “general assertions that they were ineligible to apply for promotions [were] insufficient to state plausible … claims,” as they did not allege “that they were interested in a promotion or that there was an open position to which they could have (or would have) applied” (footnote omitted)); Williams v. City of New York, No. 11-CV-9679, 2012 WL 3245448, at *6 (S.D.N.Y. Aug. 8, 2012) (holding that the plaintiff did not state a failure to promote claim because he did not allege that he applied for or was rejected from any position); Anderson v. Davis Polk & Wardwell LLP, 850 F. Supp. 2d 392, 414 (S.D.N.Y. 2012) (same). However, “a plaintiff’s failure to apply for a position is not a bar to relief when an employer’s discriminatory practices deter application or make application a futile endeavor.” Malarkey v. Texaco, Inc., 983 F.2d 1204, 1213 (2d Cir. 1993) (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 364–67 (1977)); see also Thelwell v. City of New York, 733 F. App’x 561, 563 (2d Cir. 2018). Where an application would be futile, a plaintiff can instead “allege the specific positions to which [he] would have applied had the alleged discriminatory practices not existed.” Brown, 163 F.3d at 711.

*7 Plaintiff alleges that applying for a promotion would have been futile because minority employees are typically not selected for sponsorship inside the department and because he is continuously placed on a probationary status that bars him from applying for promotions outside the department. (SAC ¶¶ 36, 46, 49.) Accordingly, Plaintiff has plausibly alleged at the pleading stage that applying to be promoted would have been a “futile gesture.” Int’l Bhd. of Teamsters, 431 U.S. at 366.

However, Plaintiff must still allege specific promotion opportunities that he would have sought had application not been futile. See Brown, 163 F.3d at 711 (“Accepting as true [plaintiff’s] bare allegation that she ceased applying after 1995 for specific positions because such application would have been futile, [the plaintiff] has failed to allege the specific positions to which she would have applied had the alleged discriminatory practices not existed.”); Barrett, 39 F. Supp. 3d at 442–43 (explaining that, although the plaintiff alleged that her manager’s words and actions implied that applying to a regional sales trainer position would be futile, she still did not state a claim because “she d[id] not allege that she would have been interested in [that] (or any other) position or that the position was open between the time her manager made this comment and the time [the plaintiff] left the [c]ompany”).

Plaintiff fails to allege specific positions he would have applied for within the limitations period. Because Plaintiff has failed to identify the position or positions that he would have applied to had application not been futile, the Court cannot infer that there were positions for which Plaintiff would have applied during the relevant time period. See Barrett, 39 F. Supp. 3d at 442 (“[I]t is difficult to say that a plaintiff was injured with respect to a promotion if there were not any open positions to which [he] could have been promoted or in which [he] would have been interested”). Moreover, Plaintiff also has not alleged that he expressed to Defendant his interest in being considered for any positions. See id. (noting that expressing interest in a promotion gives the defendant notice); Taylor v. City of New York, 207 F. Supp. 3d 293, 306 (S.D.N.Y. 2016) (holding that the plaintiff’s failure to promote claim failed because the plaintiff “merely aver[red] that she ‘made numerous inquiries related to the possibility of a promotion [to the positions in question] and each time she was denied because she is a woman’ ” and that general expression of interest in a promotion did not excuse her from the specific-application requirement); McCalla v. City of New York, No. 15-CV-8002, 2017 WL 3601182, at *49 (S.D.N.Y. Aug. 14, 2017) (“[T]he [specific application] requirement ensures that the fact finder is not left to speculate as to the qualifications of the competing candidates, the damages to be derived from the salary of unknown jobs, the availability of alternative positions, [or] the plaintiff’s willingness to serve in them ….” (quoting Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004))).

Further, even construing the facts in the light most favorable to Plaintiff to allege that at least some intradepartmental promotions are informally filled through a sponsorship system, (SAC ¶ 38), Plaintiff nevertheless fails to point to any positions that he could have been informally considered for within the relevant time period. See Brown, 163 F.3d at 710 (noting that where an employer fills open positions through informal means, “a specific application [may be] a quixotic requirement”); see also Digilov v. JPMorgan Chase Bank, N.A., No. 13-CV-975, 2015 WL 685178, at *11 (S.D.N.Y. Feb. 18, 2015) (“There is some tension among Second Circuit precedents on the specific application rule regarding the extent to which a formal application — and not merely a specific-but-informal one — is required.” (first citing Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 129 (2d Cir. 2004); and then citing Petrosino v. Bell Atl. Corp., 385 F.3d 210, 226 (2d Cir. 2004))). Plaintiff alleges that supervisors “normally” sponsor employees for promotions within a department and “initiate the promotion process” and also alleges that employees can apply for posted positions in different departments. (SAC ¶¶ 38–39.) Construing this description as setting forth an informal process that excuses the need for Plaintiff to have applied for a specific position within his department, Plaintiff still does not point to any positions Defendant staffed informally during the relevant time period for which he could have been considered. Although the application requirement may be excused in a “narrow” set of circumstances where “the vacancy at issue is not posted,” see Petrosino, 385 F.3d at 227, Plaintiff does not allege any vacancy, not even an informally filled vacancy that he learned of after it was filled.

(Citations omitted; cleaned up.)

Having reached this conclusion with respect to plaintiff’s Title VII claim, the court held that his “failure to identify specific positions into which he was not promoted is also fatal to his NYCHRL claim.”


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