Wednesday, May 16, 2012

Title VII retaliation cases: they ain't easy

We sometimes forget how difficult it is for plaintiffs to win failure to promote claims under Title VII. This case reminds us that a good case is not enough to win. The plaintiff needs a great case.

The case is Turner v. NYU Hospitals Center, a summary order decided on April 2. Turner says he was let go in a downsizing because he is white. The hospital says he was let go for two reasons: downsizing required the elimination of all personnel budgets by two percent, and management promoted someone else, Robert Stephen, to fill a position because he was more qualified than Turner, who wanted that position.

Let's talk about the promotion denial. Management was not happy with Turner's job performance, and when they let him go he was marked "ineligible for rehire." The Court of Appeals (Raggi, Droney and Matsumoto [D.J.]) says:

While Turner plainly disagrees with these relative assessments, to defeat summary judgment on the ground of pretext or that retaliation was a substantial reason for his termination, Turner had to adduce evidence that his qualifications were “so superior” to Stephen’s that “no reasonable person, in the exercise of impartial judgment, could have chosen [Stephen] over the plaintiff for the job in question.”

See that? It is not enough for plaintiff in a failure to promote case to show that he was more qualified. Giving deference to managerial judgment, the Court of Appeals says the plaintiff must prove he was "so superior" to the other guy that it was unreasonable for an impartial decisionmaker to pass over the plaintiff. That's the rule in Byrne v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001).

Plaintiff did find a supervisor, Morelos, who had kind things to say about him. Plaintiff says this supervisor's testimony helps his case. Not so, the Court of Appeals says. It just means that reasonable people can disagree as to Turner's qualifications for the position. That does not prove pretext:

Former Building Services Department Director Joey Morelos’s subjective belief that Turner was meeting expectations is consistent with Turner’s 2003 performance evaluation, but Morelos did not cite any objective reasons why DeGazon and Pineda, Turner’s directs upervisors with the greatest familiarity with the quality of his work, were wrong in determining that Turner had not improved enough to meet expectations in 2004. At most, Morelos’s deposition testimony shows that reasonable people could disagree as to Turner’s qualifications relative to Stephen’s, which is insufficient to establish a triable question of pretext. 
The issue of what evidence the plaintiff needs to show that he was denied a promotion for discriminatory reasons is unsettled at the Supreme Court. In Ash v. Tyson Foods, 546 U.S. 454 (2006), the Supreme Court touched upon what evidence the plaintiff needs to show pretext when he is denied a promotion. It rejected flippant language to the effect that the plaintiff needs to be substantially more qualified than the selectee, but it did not settle upon a standard. Here’s what the Court said in Ash:

the Court of Appeals erred in articulating the standard for determining whether the asserted nondiscriminatory reasons for Tyson's hiring decisions were pretextual. Petitioners had introduced evidence that their qualifications were superior to those of the two successful applicants. (Part of the employer's defense was that the plant with the openings had performance problems and petitioners already worked there in a supervisory capacity.) The Court of Appeals, in finding petitioners' evidence insufficient, cited one of its earlier precedents and stated: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.'"

Under this Court's decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext. See Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989) (indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position").


The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, [i.e.,] Cooper v. Southern Co., 390 F. 3d 695, 732 (11th Cir. 2004) (“disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question"; Raad v. Fairbanks North Star Borough School Dist., 323 F. 3d 1185, 1194 (9th Cir. 2003) (holding that qualifications evidence standing alone may establish pretext where the plaintiff's qualifications are " 'clearly superior' " to those of the selected job applicant); Aka v. Washington Hospital Center, 156 F. 3d 1284, 1294 (D.C. Cir. 1998) (en banc) (concluding the factfinder may infer pretext if "a reasonable employer would have found the plaintiff to be significantly better qualified for the job"), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may be probative of pretext when combined with other evidence[.] This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today's decision, furthermore, should not be read to hold that petitioners' evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results. 

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