Applying the McDonnell Douglas burden-shifting test in adjudicating a Title VII action

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.

 

The Internal Revenue Service [IRS] posts notice of importance to Tax Exempt and Government Entities

The United States Internal Revenue Service posted a notice on November 4, 2022 advising tax exempt and government entities that the Tax Exempt and Government Entities (TE/GE) Fiscal Year 2023 Program Letter (PDF) lists IRS priorities for this new fiscal year. 

IRS reported that it will also use its Compliance Program and Priorities webpage to provide information about additional priorities as they are launched. 

In addition IRS advised that its Fiscal Year 2023 compliance program and priorities align with the IRS Strategic Goals listed below:

• Enhance Taxpayer Service
• Strengthen Compliance Activities
• Workforce Development
• Transform Operations

IRS plans to release a summary of its Fiscal Year 2022 accomplishments during the first quarter Fiscal Year 2023. Interested parties may also view IRS' "annual program (or work plan) and accomplishment letters for previous years."

 

 

The modern equivalent of a Writ of Mandamus and a Writ of Prohibition preserved in New York State's CPLR

There are a number of ancient common law writs that have been preserved in New York State's Civil Practice Law and Rules. In this action brought pursuant to Article 78 of New York State's Civil Practice Law and Rules, the Appellate Division considered the equivalent of two such ancient writs being sought by the Petitioner, a Writ of Mandamus and a Writ of Prohibition.

With respect to the Writ of Mandamus the court said that "The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought", citing Matter of Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12.

Addressing the Petitioner's efforts to obtain a Writ of Prohibition, the Appellate Division noted that "Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers", citing Holtzman v Goldman, 71 NY2d 564.

As to the Petitioner's seeking either or both of these writs, the Appellate Division concluded that "The [Petitioner] has failed to demonstrate a clear legal right to the relief sought" Accordingly, the Appellate Division  dismissed the proceeding "on the merits." 

Other ancients writs that are from time to time sought in the course of litigation include the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. As noted earlier, New York State's Civil Practice Law and Rules sets out the modern equivalents of such surviving ancient writs. 

Click the URL below to access the Appellate Division's decision.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06011.htm