Hiring of Better-Qualified Candidate, Notwithstanding “Unprofessional and Coarse” Text Messages, Defeats Sexual Orientation Discrimination (Failure-to-Hire) Claim

In Rodriguez v. New York City Health & Hospitals Corp., No. 14 CIV. 4960 BMC, 2015 WL 5229850 (E.D.N.Y. Sept. 8, 2015), the Eastern District of New York granted defendant summary judgment on plaintiff’s sexual orientation discrimination and quid pro quo sexual harassment claims.

In sum, plaintiff alleged that “he was denied employment by defendants based on his status as a male and/or bisexual, and that he was a victim of quid pro quo sexual harassment.”

The law:

Claims for discrimination for failure to hire under Title VII are evaluated under the familiar burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.1817 (1973). First, a plaintiff alleging failure to hire must prove a prima facie case by showing by a preponderance of the evidence that that: (1) he is a member of a protected class; (2) he is qualified for the position sought; (3) he was rejected from the position; and (4) after his rejection, the employer continued to seek applicants from persons with the same qualifications of plaintiff or that the rejection occurred under circumstances that can be reasonably seen as supporting an inference of discrimination. The burden on a plaintiff to make out a prima facie case is minimal. If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the plaintiff’s claim by offering a legitimate, non-discriminatory reason for its actions. If the defendant makes such a showing, the burden shifts back to the plaintiff to demonstrate that the defendant’s offered nondiscriminatory reason was mere pretext and that the defendant was actually motivated by discriminatory animus.

Applying the law, the court concluded that “plaintiff cannot prove his prima facie case, defendants have legitimate, nondiscriminatory reasons for their actions, and plaintiff cannot demonstrate that the reasons are pretextual.”

As to plaintiff’s prima facie case, the court initially held that plaintiff could not demonstrate that he was a member of a protected class:

The Second Circuit has decided the question of whether “sex” under Title VII includes “sexual orientation” as a protected class. It has explained that [t]he law is well-settled in this circuit and in all others to have reached the question that … Title VII does not prohibit harassment or discrimination because of sexual orientation. … Therefore, plaintiff’s argument that he is clearly a member of a protected class, because he identifies as bisexual, is wrong.

Next, the court held that plaintiff could not demonstrate that he was qualified for the position:

Apparently recognizing that he lacked the minimum qualifications for the position, plaintiff argues that his other three-years and five months of non-relevant customer service work is sufficient to make up the difference in equivalency. Moreover, he argues that his qualification for the position is demonstrated by the fact that he was selected for an interview in the first place. These arguments are meritless. First, plaintiff provides no support for the position that his non-relevant work experience bears any relation to the minimum qualifications listed in the job description. Although customer service is an aspect of the HCPPA position, the position also required knowledge of healthcare programs and practices that plaintiff could not have gained through his customer service positions. Consequently, plaintiff does not meet the minimum qualifications for the HCPPA position.

He likewise failed to demonstrate the requisite inference of discrimination:

It is “extremely difficult, if not practically impossible” to establish discrimination where, as here, plaintiff was passed over so an employer can hire another member of plaintiff’s same protected class. Plaintiff is male, Lacayo is male, and the candidate ultimately hired for the position, J.M., is male. Since all three parties are male, it is highly unlikely that gender-based animus motivated the decision not to hire plaintiff. Plaintiff’s argument consists of little more than conclusory statements and an implicit request that the Court infer discrimination. I cannot do so on this record, especially considering that all text messages plaintiff refers to in support of his argument were sent and received after plaintiff had already found out he did not get the job, and because plaintiff does not offer any explanation of how any text message he cites indicates discrimination. Therefore, plaintiff is unsuccessful in showing facts sufficient to support an inference of discrimination, and in establishing his prima facie case.

Assuming that plaintiff demonstrated a prima facie case, the court found that “defendants have a legitimate non-discriminatory reason for why plaintiff was rejected. Specifically, defendants hired the most qualified candidate—by far.”

Next, the court turned to whether this nondiscriminatory reason was a pretext for discrimination. Plaintiff failed here as well:

In opposing defendants’ proposed non-discriminatory reason, plaintiff relies on the purported justification made by Lacayo [the person who interviewed plaintiff] in a text message that J.M. was hired because he “gave a good long kiss” at the end of the interview. Plaintiff has, however, selectively quoted from this text message conversation and omitted the relevant context. Lacayo wrote that J.M. got the job because he “had better qualifications,” and only after that added, “[p]lus at the end of the interview gave a good long kiss.” Furthermore, Lacayo wrote that the kiss was “[n]ot really the reason why I chose him.” Plaintiff’s reliance on that one message, to the exclusion of the others, ignores J.M.’s superior qualifications and overlooks his own clear deficiencies as an applicant. Plaintiff offers no rebuttal of Lacayo’s justifications, which, although shrouded in unprofessional and coarse behavior, exhibit nothing more than that Lacayo hired the best-qualified candidate. Anti-discrimination laws do not make employers liable for doing stupid or even wicked things; [they] make [ ] them liable for discriminating[.] Defendants did not discriminate, so plaintiff’s discrimination claim must be dismissed. (Bold emphasis added.)

As to plaintiff’s quid pro quo sexual harassment claim, it was “undisputed that Lacayo did not make any sexual advances to plaintiff between … the date of plaintiff’s interview, and … the date when plaintiff was notified of his rejection.”

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