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73-year-old employee advances failure-to-promote claim but pleads his employer’s nondiscriminatory reason, too

By Kathleen Kapusta, J.D.

The court found it likely that his employer would prevail on summary judgment as the employee “has already done the work” for it by pleading a legitimate, nondiscriminatory reason for his nonselection with no hint of pretext.

While a Caucasian employee who was 73 when he was purportedly denied a promotion in favor of younger, less qualified, non-white applicants sufficiently pleaded Title VII and ADEA claims for race and age bias, he also pleaded a legitimate, nondiscriminatory reason for his employer’s failure to promote him—he was tied for the lowest score on the interview test. But because there is no controlling Second Circuit precedent requiring plaintiffs to plead pretext even when the complaint itself offers a legitimate, nondiscriminatory reason for the alleged discriminatory act, the federal court in New York denied his employer’s motion to dismiss these claims. His retaliation and Title VII sex discrimination claims failed, however (Brophy v. Chao, February 7, 2019, Seibel, C.).

Seven years after the employee began working for the FAA as a Labor and Employee Relations (LER) Specialist, the agency announced a vacancy for a LER Branch Manager position. As one of six qualified applicants, the employee was interviewed by a three-member panel. One of the panel members had developed 10 questions addressing the position’s management, leadership, and technical requirements as well as a points-based ranking system to score the applicants.

Qualifications. Upon completion of the interviews, the job was offered to a 39-year-old Hispanic male who had five years of experience as an LER specialist but no other federal employment experience. The employee had 30 years of federal employment experience, seven of which were as an LER specialist, and he had mentored the selectee. When the selectee declined the job, it was offered to a 48-year-old African-American woman, who had a total of five years’ experience with the FAA. She was a high school graduate with “some college,” while the employee possessed a J.D. with a major in labor law and 30 graduate credits in public administration. The two selectees had scored first and second on the interview test while the employee had tied for last.

Solely on the interview. The employee argued that the FAA relied solely on the interview results and that the panel did not, as required by regulation, “assess the qualified applicants against the criteria in the job announcement, in the applicants’ on-line applications and in the applican[ts’] resumes.” Relying exclusively on the interviews, he asserted, allowed the panel to discriminate against him on the bases of race, sex, and age.

Adverse actions? He filed two complaints and four days after his second one, he received a letter of counseling from the newly promoted branch manager. A month later, he alleged, she opened an investigation into an allegedly rude gesture he had made at the 39-year Hispanic applicant, which the employee did not deny. He ultimately retired and sued for age, race, and sex discrimination.

Race and age discrimination. Noting that the employee, who was white and well over 40, alleged he applied for the position, was qualified, and was rejected, that the position was offered first to a 39-year-old Hispanic male and then to a 48-year-old African-American female, and that he supported his allegations with employment history and educational background, the court found he substantially pleaded a Title VII claim based on race discrimination and an ADEA claim. In fact, said the court, he went well beyond the minimal pleading burden by alleging facts establishing each element of a prima facie case.

But, observed the court. he also did the work for the FAA by pleading a legitimate, nondiscriminatory reason for its failure to promote him: he was tied for the lowest score of any applicant on the interview test, while the two selectees scored the highest and second highest of all the applicants. However, even though he pleaded a nondiscriminatory reason for the agency’s failure to promote him, and he did not plead that it was pretextual, he was not required to allege pretext at this stage. Although the court found it likely the FAA would prevail on a summary judgment motion, at this stage he met his pleading burden and thus his race and age discrimination claims survived.

Sex discrimination. Not so as to his Title VII sex discrimination claim, as he failed to sufficiently plead an inference of discrimination based on sex. First, observed the court, the job was offered to a man and second, the alleged decisionmaker was also male. Thus, said the court, it could reasonably “draw an inference against discrimination where the person taking the adverse action is in the same protected class as the effected employee.”

Retaliation. The employee’s retaliation claims also failed. While he alleged the letter of counseling was an adverse action because it “could have been used as a predicate for future enhanced penalties” or “may prejudice future employment or advancement opportunities,” the fear of future penalties that do not come to fruition is not enough to establish an adverse action for purposes of a retaliation claim, said the court. Nor did the employee suffer any harm from the investigation, as it was ultimately closed without any recommended action.