In Clawson v. The City of Albany Department of Fire & Emergency, 2024 WL 1044531 (2d Cir. March 11, 2024), the U.S. Court of Appeals for the Second Department affirmed the district court’s award of summary judgment on plaintiff’s claim of race-discrimination – specifically, that defendant rescinded plaintiff’s promotion because of his race.
From the decision:
Based on our independent review of the record, we conclude that Clawson established a prima facie case of race discrimination. First, Clawson, as an African-American employee, is a member of a protected class. Second, Clawson met his “minimal” burden of presenting evidence that he “possesses the basic skills necessary for performance of the” battalion chief position. Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 136 (2d Cir. 2016) (citations omitted). Third, the recission of Clawson’s promotion offer constitutes an adverse employment action. See Beyer v. County of Nassau, 524 F.3d 160, 163–64 (2d Cir. 2008). Consistent with our precedent that “[i]n addition to terminations of employment and demotions, failure to promote … may also qualify as [an] adverse action[ ],” Banks v. Gen. Motors, LLC, 81 F.4th 242, 269 (2d Cir. 2023), Clawson produced evidence from which a reasonable jury could find that his base pay and benefits would have been greater as battalion chief than as captain, see Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Finally, Clawson’s allegation that he was “replace[d] … with an individual outside [his] protected class” is sufficient to raise an inference of discrimination at the initial prima facie stage. Littlejohn v. City of New York, 795 F.3d 297, 312–13 (2d Cir. 2015); see also D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007) (holding that plaintiff’s allegation that “one of the individuals who was offered [the] position was eight years younger than [plaintiff]” was “significant enough to support an inference in [plaintiff]’s favor”).
The AFD, however, has articulated a legitimate, non-discriminatory rationale for rescinding Clawson’s promotion offer. Before he was slated to become battalion chief, Clawson consumed at least seven pints of beer, JA-1209, ¶ 5, and proceeded to “expos[e] himself” outside of a Dunkin’ Donuts, JA-1210, ¶ 8, prompting first responders to call an ambulance for “a very old male who [was] highly intoxicated and … pooped on himself,” JA-1211, ¶ 13, and who was “incoherent with his pants down around his ankles,” JA-1210, ¶ 9. Following that incident, the AFD determined that Clawson’s promotion to battalion chief would undermine the AFD’s internal morale and its public perception, as well as Clawson’s effectiveness as a leader.
In these circumstances, the AFD has stated a sufficient, non-discriminatory rationale for the adverse employment action.
Clawson, on the other hand, has failed to produce sufficient evidence showing either that the AFD’s proffered reason was false, or more generally, that discrimination was the real reason for the rescission. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515–16 (1993). In an attempt to convince us otherwise, Clawson argues that the district court misconstrued or ignored four pieces of evidence that purportedly establish that the AFD’s real reason for the rescission was discrimination. Based on our review of the record, we hold that none of Clawson’s evidence raises a material issue of fact such that a reasonable jury could conclude that race “was at least one of the … factors” motivating the rescission.
The Court proceed to reject the remainder of plaintiff’s arguments – including that he was better qualified than the person chosen for the subject position; it noted that while the person selected scored second on the civil service exam after plaintiff, plaintiff “ignores the undisputed record evidence that he engaged in an act of misconduct only days before his planned promotion.”