Court: “Failure to Rehire” is an “Adverse Employment Action”

The Southern District of New York recently held, in Khan v. Hilton Worldwide, Inc., No. 14 CIV. 1011 ALC, 2015 WL 738108 (S.D.N.Y. Feb. 20, 2015), that a failure to rehire an employee qualifies as an “adverse employment action” and that plaintiff’s retaliation claims under Title VII and the NYC Human Rights Law survived defendants’ motion to dismiss.

From the decision:

There is no disputing that Khan’s filing of the EEOC complaint was protected activity, 42 U.S.C. § 2000e–3(a), and that Hilton had knowledge of the filing of the EEOC charge against it. Unsurprisingly, then, the defendants set their sights on the notion that Khan has not sufficiently pled an adverse action resulting from such knowledge. They posit that because Khan’s application has technically not been rejected, he cannot substantiate his failure to rehire theory. Their argument is unavailing. It is clear that an employer’s failure to rehire an employee qualifies as an adverse employment action under Title VII. Khan alleges that he was more qualified than the five individuals rehired for the “Secondary B–List Banquet Server” position in February or March 2013, and that his job performance had been above average. There is no avoiding the fact that the defendants “failed to rehire” Khan when, taking the allegations as true, they opted to employ five other individuals over him without a legal basis. Moreover, the defendants have persisted in their failure to rehire Khan because, years later, they have not informed him of an ultimate decision regarding his application. There seems no more material injury in the employment context than the decision to not provide employment, whether the vehicle used is termination or a refusal to hire someone who, in the absence of a prohibited influence, would have been hired.

Khan has also met his initial burden with respect to causation. A plaintiff may establish a causal connection either: “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon, 232 F.3d at 117 (2d Cir.2000). Khan offers no direct evidence of retaliatory animus, and there is no need to address whether he has shown causation through temporal proximity because the pleadings contain enough circumstantial evidence to suggest a retaliatory motive.
The plaintiff alleges that Hilton declined to rehire him for the position of “Secondary IB–List Banquet Server” because he filed a complaint with the EEOC on December 21, 2011. He avers, upon information and belief, that literally every individual whose employment had been terminated due to the closing of Starbucks on June 24, 2012 was subsequently rehired as a “Server” in Hilton’s Banquet Department, except him. See Conklin v. Cnty. of Suffolk, 859 F.Supp.2d 415, 433–434 (E.D.N.Y.2012) (“Courts have consistently held that one way to establish a claim of retaliation is to show that the complaining employee is treated different than other employees who did not engage in a protected activity.” (citing Knight v. City of N.Y., 303 F.Supp.2d 485, 498–99 (S.D.N.Y.2004) and DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111, 115 (2d Cir.1987)). The employees, including Robert Arnold, Tofal Liton, Francis Butters, Jose Bermio, and Ahmed Mostaque, were rehired over Khan despite the fact that he had more relevant experience as a “Server” and his job performance while at Hilton had been exceptional. See Langford v. Int’l Union of Operating Eng’rs, Local 30, 765 F.Supp.2d 486, 504 (S.D.N.Y.2011) (holding that a plaintiff alleging race and sex discrimination had stated a claim for disparate treatment under Title VII where Complaint alleged she was passed over for employment by a candidate with less experience).

The inference that Khan was qualified for the “Server” position is bolstered by the fact that he progressed to a fourth, and perhaps final, round of interviews. See Gaffney v. Dep’t of Info. Tech. and Telecomms., 536 F.Supp.2d 445, 463 (S.D.N.Y.2008) (finding that where a manager was familiar with a candidate’s “education, work experience, and technical expertise,” his grant of an interview “could reasonably be read to suggest that [the applicant] possessed the basic skills and qualifications necessary for the position”). Moreover, as the plaintiff notes, a sinister inference can easily be drawn from the fact that, just hours after he expressed to Carlo that he intended to apply for one of the newly available “Server” positions, he received an email stating that his application for the job had been rejected despite the fact that he had not yet applied. Notably, none of the aforementioned individuals who were rehired had earlier complained of discrimination by the defendants. See Conklin, 859 F.Supp.2d at 433–434. These circumstantial allegations, taken together, state a claim for retaliation.

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