In Troise v. SUNY Cortland NY, 2019 WL 3817387 (NDNY 2019), the court, inter alia, held that plaintiff sufficiently alleged a gender-based failure-to-hire claim.
From the decision:
Here, considering the allegations in the light most favorable to the non-movant, Plaintiff alleges that he and a woman applied for the same position. (Dkt. No. 1; Dkt. No. 23, at 1). He alleges that he was the more qualified candidate: though both Plaintiff and the woman had keyboarding skills, she lacked Plaintiff’s experience with courts and police, qualities that SUNY Cortland was allegedly seeking. (Dkt. No. 1; Dkt. No. 23, at 1; Dkt. No. 1-1). Finally, Plaintiff alleges that Defendant refused to hire him. See Littlejohn, 795 F.3d at 311; see also 42 U.S.C. § 2000e-2(a)(1) (listing “refus[al] to hire” as one of several possible adverse employment actions).5 Relevant to discriminatory intent, Plaintiff alleges that: (i) a SUNY Cortland Human Resources Administrator disclosed that “they wanted a [woman] in that job,” (Dkt. No. 23, at 1);6 (ii) Defendant hired a candidate outside of his protected class; and (iii) the candidate Defendant hired was less qualified, lacking Plaintiff’s experience with courts and police, (Dkt. No. 1; Dkt. No. 23, at 1).
Treating the allegations in Plaintiff’s opposition as if they were in his Complaint, see supra Section IV.C.1, and viewing them in the light most favorable to Plaintiff, the Court concludes that Plaintiff has alleged sufficient “nonconclusory factual matter” to “nudge[ ] [his] claims … across the line from conceivable to plausible.” Port Authority, 768 F.3d at 254 (internal quotation marks omitted). “[W]here, as here, the Complaint alleges that an employer hired someone outside of the aggrieved individuals’ protected class, that is enough to raise an inference of discrimination at the motion to dismiss stage of litigation.” Upstate Niagara Coop., 2018 WL 5312645, at *6, 2018 U.S. Dist. LEXIS 183904, at *17–18 (citing Szewczyk, 2016 WL 3920216, at *6, 2016 U.S. Dist. LEXIS 91856, at *16–17 (“In the failure to hire context, an employer’s choice of a less qualified employee not from plaintiff’s protected class raises an inference of discrimination sufficient to establish a prima facie case of discrimination.”)). The Court concludes that Plaintiff has provided “at least minimal support for the proposition that [SUNY Cortland] was motivated by discriminatory intent,” Littlejohn, 795 F.3d at 311, with respect to Plaintiff’s sex. Accordingly, Defendant’s motion to dismiss Plaintiff’s Title VII claim is denied.