Here is a built-in barrier to winning employment discrimination cases

Some Title VII discrimination cases are harder than others. This case is one of the harder ones. Not because the plaintiff has no case, but because the legal standard guiding this dispute has a built-in barrier that increases the plaintiff's burden of proof.

The case is Martinez v. City of Stamford, a summary order dated May 1. Plaintiff says the City hired two non-Hispanic white police officers to Sergeant over him, and that the reason for this adverse decision was racial discrimination. The district court dismissed the case on summary judgment and plaintiff appeals.

The problem with failure to promote cases, at least from the plaintiff's perspective, is that the plaintiff has to show that his credentials were far superior to the people who actually got the position, Comstock and Malanga. The City says the two officers were better qualified than plaintiff.

Stamford describes legitimate nondiscriminatory reasons for selecting both Comstock and Malanga. Stamford notes that both selected candidates had bachelor’s degrees, while Martinez did not, and both scored higher than Martinez on the written portion of the promotional exam. Comstock had been selected as Police Officer of the Year and Malanga had been nominated for the award four times, but Martinez had been nominated only three times. Moreover, Malanga had already been serving as “de facto supervisor” prior to his promotion.

Assuming plaintiff was qualified for the position, that would not entitle him to a jury trial. That's because embedded in Second Circuit law is the requirement in promotion cases that the plaintiff was "so superior" that "no reasonable person in the exercise of impartial judgment, could have chosen" the other guys. That standard is from Byrnie v. Town of Cromwell, 243 F.3d 93 (2d Cir. 2001). The Supreme Court has never endorsed such a standard, but the legal standards guiding Title VII are almost all judge-made, and this standard grows out of the principle that courts are not super-personnel departments that will turn every personnel decision into a federal case. Judges will defer to managerial decisionmaking in failure-to-promote cases. The plaintiff needs to be the obvious choice for promotion to show that the employer's claim that the others were better qualified is a pretext for discrimination.

Plaintiff tries to get around this evidentiary burden by arguing that the department does not have enough Hispanic officers, and that is evidence of discriminatory intent. But the Court of Appeals (Pooler, Wesley and Menashi) rejects that theory. "We previously have rejected the proposition that numbers alone serve as evidence of intentional discrimination." The case for that is Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000). 

Plaintiff also argues that the department failed to adhere to the affirmative action provisions in state law. But Connecticut law "does not require the department to follow any particular hiring policy." Moreover, "Martinez points to no evidence that the department missed the deadline out of animus, but even assuming the district court was correct, we agree with the district court that missing the guidelines deadline was not enough to defeat summary judgment. See Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (“[T]he Court did not categorically conclude that a prima facie case plus pretext evidence ‘permits’ a trier of fact to find that a plaintiff has satisfied his ultimate burden; it noted, instead, that such circumstances ‘may permit’ a trier of fact to conclude that a plaintiff had met his ultimate burden”). Take a look at that language from Schnabel: it says that even some pretext is not enough to win a Title VII case. That principle also makes it difficult to win these cases, but that's a story for another day. I will note that I have not seen that language in any Second Circuit ruling in quite some time. Maybe that language is making a comeback.