No pretext in discrimination case despite minor irregularities in promotion process

The plaintiff alleges that she was denied two promotions because of her race, age and sex when two other internal candidates were promoted instead. The Court of Appeals finds that plaintiff cannot show these adverse actions were undertaken for pretextual reasons even though plaintiff identified slight inconsistencies in the way the promotion process unfolded.

The case is Carr v. New York City Transit Authority, issued on August 7. The record shows that the selectees were qualified for these managerial positions that were denied to plaintiff, who was also qualified for the promotions. The question is whether management's articulated reasons for the promotion denials were a pretext for discrimination. 

The Court of Appeals (Parker, Pooler and Nathan) notes, "As proof of pretext, Carr points to perceived inconsistencies in the hiring criteria and changes to the hiring process, such as that the original job descriptions did not specify a technical background was required and the panel of interviewers changed between the first and second openings she applied for." Cases hold that procedural irregularities in the hiring process can support a finding of pretext. The reasoning is that if management cut corners or bent the rules to favor one candidate over another (or to justify someone's termination), then they were looking for a predetermined outcome no matter how qualified or skilled the plaintiff was. The leading case on this issue is Stern v. Trustees of Columbia Univ., 131 F.3d 305 (2d Cir. 1997).

Plaintiff loses the case on summary judgment because the deviations that she identified were not significant enough to support a finding of pretext. The Court holds, "While 'entirely ignor[ing]' explicit hiring criteria or an 'unprecedented' departure from an employer’s established hiring practice can show pretext, Carr's allegations regarding minor variations in the hiring process and the emphasis on the other candidates’ technical backgrounds are not the sorts of 'departures from procedural regularity' that could allow a jury to infer pretext." The takeaway is that while deviations can lead to victory, they must be significant deviations, not minor ones.