A Primer on Employment Discrimination Motion Practice

On January 4, 2013, Judge Michael A. Telesca of the Western District of New York filed a concise primer on employment discrimination motion practice. In Somerville v. Romulus Central School District, 2013 U.S. Dist. LEXIS 1509 (WDNY 2013) the plaintiff, an African-American female candidate for school superintendant, brought an action alleging she was not selected as a school superintendent on the basis of unlawful discrimination on the basis of race and gender. She was one of six finalists, three female and three male, interviewed for the position by three distinct groups: the Board of Education, a community group, and a district employee group. Three finalists were honed from the group of six to three finalists, two males and a female. A white male was eventually selected as the new school superintendent.

The district court, in dismissing the plaintiff’s claim, carefully travelled the road to dismissal. The court first noted the summary judgment standard:

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the party against whom summary judgment is sought. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott, 550 U.S. at 380 (citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)).

Then the court found the plaintiff had met her burden of establishing a prima facie case under circumstances giving rise to discrimination.

To establish a prima facie case of discriminatory failure to hire, the plaintiff must show that (1) she belongs to a protected class; (2) she applied for an available position for which she was qualified; and (3) she was rejected under circumstances giving rise to an inference of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The burden of stating a prima facie case sufficient to overcome a motion for summary judgment is de minimis, Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988). Based on the de minimis standard for stating a prima facie case, I find that plaintiff’s claim that a less-qualified white male was hired for the position she sought states a prima facie case of employment discrimination.

The plaintiff was able to allege circumstances giving rise to an inference of discrimination via alleged statements of a preference for hiring a male, despiteher alleged superior credentials.

Thereafter, the burden shifted to the defendant to establish a non-discriminatory reason for the discrimination. The defendant’s claims of a lack of history of female or African- American superintendents in the past were insufficient on their face:

To establish an inference of discrimination based on the historical lack of hiring of minority candidates, a plaintiff must produce evidence that minority candidates actually applied for the position sought and were rejected. As stated by a district court in a case involving teachers, the “absence of African-American [teachers] does not suffice to prove a prima facie case of discrimination without comparison to the relevant labor pool.” Deleon v. Putnam Valley Board of Education, 2006 U.S. Dist. LEXIS 3337, 2006236744, (S.D.N.Y., January 26, 2006) (citing Jackson v. University of New Haven, 228 F.Supp.2d 156, 166 (D.Conn., 2002) (“The mere absence of minority employees in upper-level positions does not suffice to prove a prima facie case of discrimination without a comparison to the relevant labor pool”).

In the instant case, the plaintiff has failed to produce any evidence as to whether or not any female or minority candidates had applied to become superintendent of the school district prior to 2008, when plaintiff herself applied for the position. Accordingly, because there is no evidence of whether minority or female candidates ever applied for the position of superintendent, no discriminatory motive or effect can be inferred from the historical lack of a AfricanAmerican or female superintendent of the Romulus Central School District.

Likewise, the plaintiff’s self-serving claims of superior qualifications alone were insufficient to rebut the defendant’s nondiscriminatory rationale.

“An employee’s subjective opinion about [her] own qualifications is insufficient to give rise to a triable issue of fact concerning whether the employer’s proffered reason for its actions is a pretext for discrimination.” Hines v. Hillside Children’s Center, 73 F.Supp.2d 308, (W.D.N.Y. 1999) (Larimer, C.J.) (citing Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1039 (10th Cir.1993) (employee’s own assessment of his job performance is inadequate to raise issue of fact for trial)); Anderson v. City of New Rochelle, 2012 U.S. Dist. LEXIS 125358, 2012 WL 3957742 *12 (S.D.N.Y., September 04, 2012) (“Plaintiff’s purely self-serving statement that he was ‘clearly the most qualified’ for the position, without direct or circumstantial evidence to support the assertion, does not create a question of fact on the issue of discrimination”). Moreover, to rebut an employer’s reason for not hiring her, a plaintiff must establish that her qualifications were “so superior to the credentials of the person selected for the job” that “’no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.’” Abrams v. Department of Public Safety, 856 F.Supp.2d 402, 410 (D. Conn., 2012) (quoting Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir., 2001).”

In dismissing the case, the district court provided a road map for both plaintiffs and defendants in exactly how summary judgment motions in employment discrimination cases will be handled. The case provides a guide for the proof required of each to either obtain or defeat summary judgment.

While there may be sufficient evidence to properly allege a discrimination case, there must be adequate proof and more than conjecture and surmise to overcome evidence of a legitimate non-discriminatory reason for the employment decision.