Takeaway: This case clarifies that an employee must apply for a position in order to claim that she was not selected for it. At the same time, another court might find it more persuasive that a conversation with a manager about applying for a position was a step in the application process. Employers might consider formalizing a requirement that employees submit an application or otherwise formally declare interest in a position in order to be a candidate for it.
The U.S. District Court for the Southern District of New York granted summary judgment to an employer on a failure-to-promote discrimination claim brought by a former employee. The court held that the plaintiff failed to meet her evidentiary burden to demonstrate that she applied for the position at issue and failed to present sufficient evidence to raise an inference of discrimination.
The plaintiff, a Black woman, worked for six years in the marketing department at a wine and spirits company. She had prior management experience and had supervised small teams in a senior manager role and received reasonably high performance evaluations for her work. The defendant had posted a position for a higher-level director position, which included requirements of at least 10 years of experience and a demonstrated ability in leading teams.
The plaintiff asked her manager, a vice president at the company, whether the plaintiff was qualified for the director-level position. The vice president responded that she did not “see [the plaintiff] in that role.” The plaintiff ultimately did not apply for the position. The defendant hired a well-qualified candidate with more business experience who had led significantly larger teams than the plaintiff.
Over the next several months, the plaintiff’s supervisor offered the plaintiff two job opportunities to broaden her experience at the company. The plaintiff declined both. The plaintiff raised concerns to the defendant that Black employees were not given chances to succeed at the company. She also alleged several examples of racial insensitivity that she experienced at the company over her years of employment.
The plaintiff then sued, alleging discrimination on the basis of her race. The issue remaining before the court in this case was whether to grant summary judgment for the defendant based on the plaintiff’s claim that the defendant failed to promote her in violation of 42 U.S.C. Section 1981, the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).
Section 1981 provides that all U.S. citizens have the right to “make and enforce contracts … and to the full and equal benefits of all laws … as is enjoyed by white citizens.” In the context of an employment discrimination case, courts use the familiar McDonnell Douglas burden-shifting framework in analysis of Section 1981 claims. In the context of a failure-to-promote claim under Section 1981, a plaintiff must demonstrate that:
- She is a member of a protected class.
- She applied and was qualified for a position for which the employer was hiring.
- She was rejected for the position.
- The position remained open, and the employer continued to seek applicants with the plaintiff’s qualifications.
NYSHRL and NYCHRL claims are analytically similar, though interpreted more liberally than Section 1981. Regardless, the court found that the plaintiff failed to meet her initial evidentiary burden under any of the above statutes.
The court accepted the defendant’s argument that the plaintiff was unable to establish her “prima facie” case because she never applied for the director position at issue. The plaintiff argued that her conversation with the vice president about the director role was sufficient to show she made a concrete move toward applying for the position. The court found that even if it accepted the plaintiff’s argument, she still had not presented evidence to create an inference of discriminatory intent in the decision not to promote her.
The court found that the reasons given by the vice president for why she did not “see [the plaintiff] in that role”—she had fewer years of experience overall and no experience leading large teams—were legitimate nondiscriminatory reasons. The court also found that the candidate who was hired was a highly experienced individual with significantly more experience than the plaintiff. Thus, the court held the plaintiff had not established her claim and granted summary judgment to the defendant.
James v. Pernod Ricard USA LLC, S.D.N.Y., No. 20-cv-10795 (April 13, 2023).
Marc J. Scheiner is an attorney in the Philadelphia office of Duane Morris LLP.
