Tuesday, December 14, 2010

Failure-to-promote claim dies on the vine

Failure to promote cases are not easy under Title VII. I think courts give management the benefit of the doubt when it promotes a well-qualified applicant over the plaintiff, who has to show intentional discrimination.

The case is Hamilton v. City of New York, decided on December 3. This is a published opinion as opposed to a non-precedential summary order, which means the Court of Appeals (Walker, Jacobs and Cabranes) does not deem this a routine case. But it does not look like a great case for the plaintiffs, either.

Plaintiffs worked in the New York City crime laboratory, each as a Criminalist III, though they were taking on supervisory responsibilities normally performed by a Criminalist IV. For this reason, their positions were recognized as Criminalist III-Supervisor. When the department wanted to fill two Criminalist IV positions, plaintiffs -- all of them foreign-born -- applied for them. The decisionmaker originally offered one of the positions to an Italian-born male, but he turned it down. The positions went to "the only two white, American-born males of the seven individuals then holding the (informal, but apparently well established) designation of Criminalist III-Supervisor, despite the fact that all four plaintiffs had considerably longer tenures as employees of the crime lab." Now that the Criminalist IV supervisory positions were filled, management decided to strip plaintiffs of their supervisory functions, but they did not lose any salary or benefits.

Plaintiffs' failure-to-promote claims do not survive summary judgment. The Second Circuit holds that plaintiffs cannot overcome the City's articulated reasons for offering the Criminalist IV position to the white applicants. "Defendants point to numerous, legitimate factors supporting their promotion decisions. Regarding the two promotions made in 2005, defendants note that the candidates who were promoted to Criminalist IV positions had uniformly better performance evaluations than the plaintiffs. In addition, [the decisionmaker's] first choice for promotion was Vito Casella, who was born in Italy, thus casting significant doubt on plaintiffs’ implicit claims that O’Neill was prejudiced against foreign-born individuals."

As plaintiffs' performance evaluations were not biased or "manifestly inaccurate," they have no evidence of discrimination. They do bring forward evidence, through their affidavits, that supervisor O’Neill told them that he wanted to “change the face” of the Criminalist III-Supervisor position." This could have discriminatory implications, but the problem for plaintiffs is that they testified at deposition that no one at the Department "had ever made any comments to them that could be interpreted as discriminatory." Since you cannot contradict your deposition testimony with an affidavit in opposition to summary judgment.

The demotion claim also fails. Yes, plaintiffs lost their supervisory responsibilities, but the City had a legitimate reason to do so: with the addition of two Criminalist IV employees, there was no need for plaintiffs to take on those responsibilities. As the Italian-born candidate (who turned down the position) also had his supervisory duties revoked as well, plaintiffs were not singled out.

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