In Orosz v. Regeneron Pharm., Inc., No. 15-cv-8504, 2016 WL 6083993 (S.D.N.Y. Oct. 17, 2016), the Southern District of New York adopted a Magistrate Judge’s Report & Recommendation denying plaintiff’s FRCP 12(b)(6) motion to dismiss plaintiff’s Title VII pregnancy discrimination claim on a “failure to hire” theory.
SDNY Judge Nelson Roman summarized/outlined the law as follows:
To assert a claim for failure to hire pursuant to Tile VII, plaintiff must allege four essential facts: 1. she is a member of a protected class; 2. she applied and was qualified for a job for which the employer was seeking applicants; 3. she was denied the position based on discrimination; and 4. the position remained open and the employer continued to seek applicants having the plaintiff’s qualifications. Alternatively, in a failure to hire case based on pregnancy, plaintiff may establish the fourth element by showing that the position remained open and was ultimately filled by a non-pregnant employee.
Since neither party objected to the Report & Recommendation, the court reviewed the lower finding for clear error. It held (without analysis) that there was no such error.
Here is the court’s summary of the underlying facts (in pertinent part):
Throughout Plaintiff’s employment at Regeneron, [plaintiff’s manager Patricia] Hamilton engaged in on going discussions with Plaintiff about her transition to becoming a permanent employee. In or about January 24, Hamilton met with Plaintiff and instructed her to prepare a job description for the position. In or about April 2014, Hamilton contacted Defendant’s Procurement Manager, Keith Turvey (“Turvey”) to inquire about the cost to buy out Plaintiff’s contract with Microsol. Turvey reported the cost would be approximately $16,000, which he described as a “good price for getting [Plaintiff] on board.” In or about May 2016, Defendant’s Facilities Vice President, Joanne Deyo, asked Plaintiff if she had children and whether she planned on starting a family. Plaintiff changed the subject without answering the question. In or about June 2104, Defendant’s Manager, Annisa Williams, asked Plaintiff if she was pregnant, which Plaintiff denied. On July 28, 2014, Plaintiff emailed Regeneron’s Director of Human Resources, Daria Palestins, to report that a co-worker was harassing her and informed that she was four months pregnant. On July 31, 2014, in a meeting attended by Regeneron’s Director of Facilities, Michelle Fritsche, Plaintiff was informed that Regeneron decided not to hire her to a permanent position and was to be terminated effective at the end of August 2014. Regeneron changed its mind not to hire Plaintiff due to a lack of work and her lack of experience with Building Information Modeling (“BIFM”). Thereafter, Regeneron continued to solicit applicants for the position they intended to hire Plaintiff. Plaintiff asserts Regeneron made BIFM a criteria for the position after learning of Plaintiff’s pregnancy and as a basis for denying her employment.
Here is plaintiff’s Second Amended Complaint.