Court Dismisses Female Prospective Bricklayer’s Gender Discrimination Suit

In Walsh v. NYC Housing Authority, the Southern District of New York granted summary judgment to defendant on plaintiff’s gender discrimination claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, and dismissed without prejudice her claim under the New York City Human Rights Law.

In her complaint (which I wrote about here) plaintiff Rita Walsh alleged that she was not given a bricklayer position on account of her gender. She alleged, among other things, that she was told that she was not selected for the position because the interviewers wanted somebody “stronger”.

After determining that defendant met its burden to show that its reason for not hiring plaintiff – namely, her “admittedly extremely limited experience with brick and block” – were nondiscriminatory, the court turned to the question of “whether plaintiff has produced evidence from which a rational jury could find that gender was more likely than not a motivating factor in NYCHA’s refusal to hire her.”

Plaintiff asserted the following evidence in support of her claim:

(1) evidence that plaintiff had superior qualifications to two of the male candidates who were hired, Giannotti and Zambino; (2) the absence of any female bricklayers at NYCHA; (3) [an] alleged statement to plaintiff [by Osagie Akugbe, a NYCHA human resources employee who oversaw the interview process] that she had been rejected because she was not strong enough; and (4) the alleged interview question posed to plaintiff regarding whether her family obligations would interfere with her ability to work overtime.

This evidence was, unfortunately, insufficient to satisfy plaintiff’s burden on summary judgment:

First, regarding plaintiff’s qualifications, the Second Circuit has held that where a plaintiff seeks to prove discriminatory motive through a discrepancy in credentials, it faces a “weighty” burden. [P]laintiff’s credentials would have to be 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. Although plaintiff had extensive experience working with tile, and there was evidence that tile work constituted a large part of a bricklayer’s job, we cannot say that she was more qualified than—much less “so superior” to-Giannotti and Zambino, or that the interviewers acted unreasonably by hiring them and not her. And while the Court would normally consider even a minor discrepancy in credentials as part of the aggregate evidence of pretext, no such discrepancy is apparent here.

Second, the lack of female bricklayers at NYCHA does not, by itself, compel a finding of discrimination. … Without more information about the quantity, and perhaps quality, of previous female applicants, we are unable to infer a discriminatory motive from the absence of female bricklayers at NYCHA.

Plaintiff’s argument therefore hinges on the probative force of the two comments allegedly made to her on the day of her interview. The first-that she was not selected because of her lack of strength-is hearsay by an individual with no decisionmaking authority, where the only evidence that it was made is plaintiff’s self-serving testimony and note. … Indeed, strength was not discussed during the interview, and the interviewers testified that they did not even consider the issue because the job of bricklayer did not require much of it.

The second comment-asking if plaintiff had family obligations that could interfere with her working overtime-is innocuous and gender-neutral. Moreover, like the strength comment, the only evidence that it was said is plaintiff’s testimony, which is undermined by the fact that the interviewers were specifically instructed by Akugbe not to ask about family responsibilities. Thus, in sum, the two comments allegedly made to plaintiff are not persuasive evidence of discriminatory animus.

The court thus concluded that “no reasonable jury could find, based on the permissible inferences to be drawn from the evidence above, that NYCHA’s failure to hire her was motivated by gender.”

It reached the same conclusion on plaintiff’s New York State Human Rights Law claim, since “it is well-established that the substantive standards for liability under the NYSHRL and Title VII are coextensive.”

However, citing the “different, more liberal standard” applicable to plaintiff’s New York City Human Rights Law claim “with which the New York state courts are more familiar”, the court declined to exercise supplemental jurisdiction over plaintiff’s City Human Rights Law claim and dismissed it without prejudice.

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