In Allen v. City of N.Y., No. 16-560-CV, 2017 WL 2544520 (2d Cir. June 13, 2017) (Summary Order), the Second Circuit vacated in part the lower court’s order granting summary judgment to defendant.
Here, plaintiff claims that he was not promoted because of his race and national origin and that he was retaliated against for complaining about discrimination, in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law. The district court dismissed plaintiff’s failure-to-promote claim on the ground that (1) plaintiff was not qualified for the position he sought, and (2) there was not admissible evidence that allowed for a reasonable inference of discrimination.
As to the first point – qualification – the court explained:
In concluding that Allen was not qualified, the District Court pointed to evidence that Allen lacked the year of supervisory experience listed in the job description for the Supervisor Watershed Maintenance I (“SWM I”) position to which he applied. But there is contrary admissible evidence. Ralph Marchitelli, the DEP’s Chief of Eastern Operations, testified both that Allen “did meet the basic requirements” for the SWM I position and that Marchitelli had never disapproved an applicant “who met the basic requirements” of that job. Based on Marchitelli’s testimony, which comported with the City’s Rule 56.1 statement that Allen satisfied the basic qualifications for the SWM I position, a rational jury could conclude that the DEP “did not in practice consider [supervisory experience] part of the basic eligibility” for the SWM I position.  The District Court thought that Allen could not rely on Marchitelli’s testimony because there was uncontroverted evidence that Allen withdrew his application for the SWM I position in 2007. But in his affidavit, submitted in opposition to the DEP’s summary judgment motion, Allen disputes that he ever refused to be considered for that position. On summary judgment, we must assume a fact finder will credit Allen.
As to the second point – the “inference of discrimination” – the court noted that plaintiff’s co-worker “testified that the DEP’s Acting Chief of Eastern Operations  told him that Allen had been the subject of discrimination.” The lower court “concluded that this testimony was speculative and contained inadmissible hearsay.”
However, at oral argument the City conceded that this statement was not hearsay, but rather an admission under Fed. R. Evid. 801(d)(2)(D). In addition, “a reasonable jury could find that such a statement from one DEP supervisor to another was not speculation but a communication about an important employment matter within the scope of his agency.” The City also conceded at oral argument “that there was no admissible evidence that [the person] who ultimately was hired for the  position had superior qualifications to Allen by virtue of his supervisory experience.”
In light of these concessions, the court held that the City was not entitled to summary judgment on plaintiff’s failure-to-promote claim.