In a recent case, Chenn & Bonnick v. MTA-New York City Transit Authority, Case No. 20-CV-2827 (FB) (JAM), 2023 WL 8891411 (E.D.N.Y. Dec. 26, 2023), the court, inter alia, denied defendant’s motion for summary judgment dismissing plaintiff’s failure-to-promote claims asserted under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.
In sum, the plaintiffs – a 56-year-old Asian woman and a 58-year-old African American woman; both attorneys – allege that they were passed over for a promotion for the position of Assistant General Counsel that was awarded to a 33-year-old white man.
In assessing plaintiffs’ claims, the court discussed two types of evidence – namely, the applicants’ relative qualifications, and evidence contradicting defendant’s stated non-discriminatory reasons.
As to the first point, the court explained:
First, Plaintiffs raise a material issue of fact about the qualifications for the position. Plaintiffs contend that their credentials were far superior to Granata’s. A plaintiff may prevent summary judgment based on the discrepancy in qualifications alone, although this burden is “weighty” and requires “the plaintiff’s credentials … to be 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.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001), superseded in part and on other grounds by Fed. R. Civ. P. 37(e) (internal quotations omitted); see also Martinez v. City of Stamford, No. 22-702-CV, 2023 WL 3162131, at *2 (2d Cir. May 1, 2023) (applying this standard in a failure-to-promote case). However, even if a plaintiff cannot meet her burden on this issue alone, this discrepancy is still probative, as a “reasonable trier of fact is entitled to find that it does bear on the credibility of the employer which must finally be evaluated from the perspective of the entire record.” Byrnie, 243 F.3d at 104.
On paper, it appears that both Plaintiffs had superior credentials to Granata. At the time of the hiring, Granata had been practicing law for roughly seven years — six as an associate attorney at private law firms and around one-and-a-half years at Transit. By contrast, Bonnick had around twenty-two years of legal experience, including thirteen years as a partner in private practice and around four years at Transit; Chenn had twenty-four years of legal experience, including about twenty-one years at Transit. According to Chenn, George admitted that Granata had “nothing” over her, see Chenn Dep. 36:23-37:6, and that George, like Granata, “wasn’t the most qualified attorney for that job and the other people who interviewed were more qualified than him,” id. at 185:10-13. While the Court is reluctant to conclude that no reasonable person could have selected Granata over Plaintiffs, the discrepancy in their qualifications can be probative of discrimination. See Walsh v. New York City Hous. Auth., 828 F.3d 70, 78 (2d Cir. 2016). Here, “it is up to the trier of fact, not the Court at summary judgment, to weigh [the] respective qualifications and decide what inferences to draw.” Oliphant v. Caldwell, 212 F. Supp. 3d 480, 487 n.7 (S.D.N.Y. 2016).
Relatedly, there is a disputed issue of material fact as to whether Granata met the minimum qualifications of the AGC II position, which required “two years (2) of managerial or equivalent supervisory experience.” As Granata worked at Transit for only a year and a half at the time he applied, he could not have met the minimum requirement there — in fact, Plaintiffs present evidence that Granata did not have managerial or equivalent supervisory experience in his role as Agency Attorney III at Transit. See Granata Dep. 46:18-48:17 (stating that he was not responsible for managing or supervising anyone “on paper” and that he did not know if his experience counted as “managing or supervising or working situation”).
Additionally, Plaintiffs present evidence that before he joined Transit, Granata did not have a supervisory or managerial role in positions as an associate attorney for two private law firms. Specifically, they point to Granata’s deposition, where he characterizes his purported supervisory or managerial experience as more akin to an informal mentorship role.
As to the second point, the court concluded that plaintiffs presented sufficient evidence from which a reasonable jury could conclude that defendants’ proffered explanation was pretextual.
It explained:
Here, Defendants rely on subjective criteria, such as Granata’s desire to “make change” and implement George’s vision. While there is “nothing unlawful about an employer’s basing its hiring decision on subjective criteria,” these criteria do not protect the employer “against attacks on its credibility.” See Byrnie, 243 F.3d at 105 (2d Cir. 2001) (internal quotations omitted). Otherwise, “[w]ere it enough for an employer to simply assert that it favored candidate A, who is not a member of a protected group, over candidate B, who is a member of a protected group, many cases of latent discrimination would go undetected and unpunished.” See Garcia v. Regan, No. 19-CV-8482 (LJL), 2022 WL 912234, at *10 (S.D.N.Y. Mar. 28, 2022).
Challenging Transit’s credibility, Plaintiffs raise a disputed issue of fact as to whether Transit pre-selected Granata for the job before it posted the JVN, which would undermine Transit’s explanation that it did not promote Plaintiffs in part because of their interview performances. In her deposition, Director of Personnel and Budget for Transit’s Law Department Helen Smart stated that, based on her conversation with Heisler, she believed Heisler had selected Granata for the job even before the JVN was posted and thus before Plaintiffs applied. Smart. Dep. 65:16-66:21. If true, Smart’s deposition suggests that Defendants never actually considered Plaintiffs for the job since they had pre-selected Granata, thereby undermining Transit’s narrative and its credibility.
Defendants explicitly dispute that Heisler pre-selected Granata before the JVN was posted and argue, in the alternative, that even if Heisler did, this fact would not establish evidence of discrimination or pretext. While pre-selection alone is generally not enough to raise an inference of discrimination, see During v. City Univ., 01 Civ. 9584(BSJ), 2005 WL 2276875, at *7 (S.D.N.Y. Sept. 19, 2005), it would undermine Transit’s stated explanation and could suggest a departure from Transit’s usual hiring procedures. See Reeves, 530 U.S. at 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”); Stern v. Trustees of Columbia Univ. in City of New York, 131 F.3d 305, 313 (2d Cir. 1997) (selecting candidate without following usual procedures raises inference that proffered reasons were not the real reasons).
Additionally, Plaintiffs claim that when George informed Chenn that Granata received the promotion, George stated Granata did so because Granata was “like [George]” and “very similar” to him. See Chenn Dep. 38:21-39:10; 184:2-25 (“he said that he and Jerry were very similar”). Plaintiffs argue that this statement is evidence of discrimination, as Chenn interpreted this comment to mean that Granata received the promotion because both George and Granata are younger, white men. Defendants dispute that George made this statement.
Whether George made this admission “require[s] a credibility determination that is the province of a jury.” See Cipriano v. Forest Pharms., Inc., No. 3:16-CV-01641 (JCH), 2018 WL 11078642, at *8 (D. Conn. Sept. 4, 2018); Ellis v. Century 21 Dep’t Stores, 975 F. Supp. 2d 244, 274 (E.D.N.Y. 2013) (although co-CEO of defendant company denies making allegedly gender-based statement, “the parties’ dispute creates an issue of fact that must be decided by the jury”) (citing cases). It is for a jury to interpret the credibility of the witnesses and determine, if George did make the statement, whether it was probative of discrimination.
Based on this evidence, the court concluded that plaintiffs offered sufficient evidence for a jury to reasonably conclude that defendant’s decision to promote “a much less-experienced attorney” over plaintiffs was discriminatory.