Petitioner in this action proceeding pro se, alleged that the Office of the New York State Comptroller [OSC] refused to hire Petitioner because of his race. Federal District Court, adopting a magistrate judge’s Report and Recommendation, the District Court granted OSC's motion for summary judgment. Petitioner appealed the District Court's ruling.
In response to Appellant's appeal the Circuit Court of Appealsl, Second Circuit, [Second Circuit] said it reviews "a grant of summary judgment de novo," drawing all reasonable inferences and resolve all factual ambiguities in favor of the nonmoving party. The nonmoving party, however, "may not rely on conclusory allegations or unsubstantiated speculation” in opposing summary judgment.
That said, the Second Circuit observed that the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) [Title VII] makes it unlawful for an employer “to fail or refuse to hire . . . any individual . . . because of such individual’s race.” Further, observed the Second Circuit, Title VII discrimination claims are analyzed using the familiar McDonnell Douglas burden-shifting test,* which has three prongs: (1) the plaintiff must first establish a prima facie case of discrimination; (2) the defendant must next proffer a legitimate, non-discriminatory reason for its actions; and (3) the plaintiff must then establish that the defendant’s proffered reason was a pretext for unlawful discrimination.
Noting that Plaintiff had "arguably forfeited appellate review of the issue of pretext for unlawful discrimination and the Second Circuit "could affirm on that basis alone", as OSC did not press Plaintiff's non-jurisdictional forfeiture in its brief, the Second Circuit exercised its discretion to reach the merits of Plaintiff's claims of unlawful discrimination “in the interests of justice”.
That said, the Second Circuit said it agreed with the District Court's ruling, explaining even assuming Plaintiff had established a prima facie case of discrimination—his burden under the first prong of the McDonnell Douglas test—he has not provided any evidence that OSC’s reasons for refusing to hire him were pretextual. OSC proffered three legitimate, non-discriminatory reasons for rejecting his application: (1) frequent job shifting, (2) résumé discrepancies, and (3) a poor writing sample. To establish these reasons as pretextual, Plaintiff would need to “point to evidence that reasonably supports a finding of prohibited discrimination.”
The Second Circuit also opined that Plaintiff "must produce evidence such that a rational finder of fact could conclude that the adverse action taken against [Plaintiff] was more likely than not a product of discriminatory animus.”
Concluding that Plaintiff failed to satisfy the third prong of the McDonnell Douglas test, and observing that OSC’s justification for its poor grade of Plaintiff's writing sample did not rely on anything that could suggest pretext but rather OSC’s interviewers specifically expressed concern over grammatical errors in the sample the Second Circuit said its judgment in favor of OSC appropriate as Plaintiff failed to met his burden under the third prong of the McDonnell Douglas test.
* See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04.
Click HERE to access the Second Circuit's ruling.