In Pollock v. Dermot Shea & City of New York, 20-cv-6273, 2021 WL 4962736 (S.D.N.Y. Oct. 26, 2021), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s gender discrimination claims against the defendants under Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law.
Initially, the court held that plaintiff sufficiently alleged two adverse employment actions, namely, defendants’ failure to promote her, and demoting her.
The court also held that plaintiff satisfied her burden, at the motion to dismiss stage, to present sufficient facts to establish “at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Specifically, “[a]n inference of discrimination may be supported at this stage by showing more favorable treatment of an employee not in the plaintiff’s protected class.”
Here, plaintiff alleged that a man was appointed to replace her as Chief of Crime Control Strategies, and that men were promoted to Chief of Detectives and Deputy Commissioner of BCP instead of her. This, the court held, was sufficient at this stage.
The court rejected defendants’ argument that plaintiff’s complaint does not raise an inference of discrimination because she has not shown that her credentials were “so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the [plaintiff] for the job in question”, which “overstate[s] [plaintiff]’s burden at this stage.”
Rather, it was “sufficient to raise a minimal inference of discrimination that a man replaced Pollock as the Chief of Crime Control Strategies, and that men were chosen over Pollock for the positions of Chief of Detectives and Deputy Commissioner of BCP.” And since plaintiff “does not need to show at this stage that she was more qualified than the men who received more favorable treatment than her, the qualifications of those men are irrelevant.”
Continuing, the court noted that in the case of Littlejohn v. City of N.Y., 795 F.3d 297 (2d Cir. 2015), the U.S. Court of Appeals for the Second Circuit “rejected the same argument that the defendants advance here;” the Littlejohn court “concluded that the plaintiff did not need to allege that her qualifications were ‘so superior’ to those of the employee who replaced her because, [a]t the prima facie stage, the mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination.” (Internal quotation marks omitted.)
The court also rejected defendants’ attempt to rebut the inference of discrimination by “highlight[ing] several recent appointments of women to some of the NYPD’s highest ranks” which “demonstrate the NYPD and Commissioner Shea’s commitment to ensuring that women in the NYPD are provided with equal promotional opportunities.”
Even assuming that this evidence could be considered at the motion to dismiss stage, it was “irrelevant”, since (1) most of the promotions cited by the defendants occurred after plaintiff filed her complaint in this case, and (2) plaintiff’s complaint “alleges sufficient facts to raise a minimal inference of discrimination against” plaintiff, which “cannot be rebutted by the defendants’ treatment of other women in other positions.”