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Walsh v. New York City Housing Authority

United States Court of Appeals, Second Circuit

July 7, 2016

Rita Walsh, Plaintiff-Appellant,
v.
New York City Housing Authority, Defendant-Appellee.

          Argued: March 2, 2015

         Appeal from the United States District Court for the Southern District of New York (Buchwald, J.) granting summary judgment in favor of defendant New York City Housing Authority ("NYCHA") on plaintiff Rita Walsh's claims of sex-based discrimination in violation of Title VII and the New York Human Rights Law. The district court concluded that NYCHA proffered a legitimate, nondiscriminatory reason for its refusal to hire Walsh as a bricklayer, and that Walsh did not produce sufficient evidence from which a reasonable jury could conclude that the NYCHA's action was motivated in part by sex-based discrimination. We hold that the district court erred by evaluating each piece of Walsh's evidence in isolation, rather than viewing that evidence as a whole. We conclude that because Walsh has proffered sufficient evidence to create a question of material fact as to whether the NYCHA's refusal to hire her was motivated in part by the fact that she is female, summary judgment is inappropriate.

          Laura Sager, Washington Square Legal Services, New York, NY, for Plaintiff-Appellant.

          Donna Marie Murphy, New York City Housing Authority, New York, NY, for Defendant-Appellee.

          Before: Calabresi, Hall, and Livingston, Circuit Judges.

          Hall, Circuit Judge:

         Plaintiff-appellant Rita Walsh brought this action claiming that defendant-appellee New York City Housing Authority's ("NYCHA") decision not to hire her as a bricklayer was sex-based and thus violated Title VII, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). The United States District Court for the Southern District of New York (Buchwald, J.) granted NYCHA's motion for summary judgment as to the Title VII and NYSHRL claims after concluding that no reasonable jury could find, based on the admissible evidence, that NYCHA declined to hire Walsh because she is female. The court declined to exercise supplemental jurisdiction over the NYCHRL claim and dismissed it without prejudice. For the reasons set forth below, we vacate the district court's grant of summary judgment and remand this case for continued proceedings consistent with this opinion.

         Background

         On February 24, 2010, the NYCHA interviewed Rita Walsh and five male candidates for five open bricklayer positions, two in Manhattan and three in Brooklyn.[1] A group of four NYCHA employees conducted the interviews: Fred Singer and Wanda Gilliam, the Manhattan and Brooklyn Administrators for Skilled Trades, respectively; James Lollo, Technical Advisor to the NYCHA's Technical Services Department ("TSD"); and Charles Pawson, Deputy Director of the TSD. Singer, Gilliam, and Pawson deferred to Lollo's extensive bricklaying knowledge and experience. Lollo asked most of the questions during the interviews, including all of the technical questions related to the tasks bricklayers are expected to perform. Lollo's objective was to determine if the candidate being interviewed had sufficient knowledge of bricklaying and the masonry trades. Each interview lasted from ten to thirty minutes and was immediately followed by a discussion among the interviewers of the candidate they had just interviewed. The interviewers made their hiring decisions collectively. At the time of the interviews there were no female bricklayers employed by the NYCHA, and the interviewers were not aware of any woman who had held that position in the past.

         NYCHA human resources representative Osagie Akugbe oversaw the interview process. Akugbe explained the process to the candidates when they first arrived. He informed them that one candidate would not be hired, and that after the interviews he would tell them who had been selected. Akugbe also met with the interviewers to discuss, among other things, the types of questions they should avoid asking. Akugbe sat in on each interview, in part so that he would be able to report to his supervisor the reason that any candidate was not hired. Akugbe had no input in the hiring decisions, however.

         Walsh was the fifth candidate interviewed. Her resume stated that since May 1995, she had been a tile mechanic with Local 7 Tile, Marble & Terrazo, a division of the Bricklayers and Allied Crafts Union. The interviewers asked Walsh about her experience working with brick and block. She informed them that she had once constructed a glass block shower at a Home Depot Expo, and that she had done "little things on her own." J.A. 361. At their depositions, Lollo and Pawson expressed that they had been surprised that Walsh had so little experience with brick and block, and that she disclosed that fact so readily. According to Walsh, the interviewers did not ask about her experience with tile, and Lollo asked her only one technical question: how to make a mortar mix.[2] One of the interviewers remarked that some people have family obligations that interfere with their ability to work overtime, and asked Walsh if she was in that situation. Walsh replied that she had no such restrictions. Physical strength did not come up during Walsh's interview.

         The interviewers unanimously decided not to hire Walsh and to hire the five other candidates. Walsh testified that after all interviews had concluded, Akugbe took her aside to tell her that she did not get the job, and stated that the interviewers wanted somebody stronger.[3] That evening, upon advice she received from Legal Momentum, [4] Walsh wrote a short note about the interview in which she stated, "I was told I was not strong enough." J.A. at 689. Walsh produced the note as part of the record below. NYCHA represents that Walsh was not hired due to her lack of experience with brick and block, and that her sex played no part in its decision.

         Walsh brought this discrimination action against NYCHA in the United States District Court for the Southern District of New York, claiming that she was denied the bricklayer position because of her sex in violation of Title VII, the New York Human Rights Law ("NYHRL"), and the New York City Human Rights Law ("NYCHRL"). In December 2013, the district court entered a Memorandum and Order granting NYCHA's motion for summary judgment as to Walsh's Title VII and NYHRL claims, and dismissing Walsh's NYCHRL claim after declining to exercise supplemental jurisdiction over the same. This appeal followed.

         Discussion

         We review de novo a district court's grant of a motion for summary judgment. Aulicino v. N.Y.C Dept. of Homeless Servs., 580 F.3d 73, 79 (2d Cir. 2009). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law" Fed.R.Civ.P. 56(a). A genuine dispute exists "where the evidence is such that a reasonable jury could decide in the non-movant's favor." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014). We must "construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Aulicino, 580 F.3d at 79-80. This Court has long recognized "the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer's intent." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation marks omitted).

         Title VII makes it unlawful for an employer to discriminate against any individual based on that person's sex. 42 U.S.C. § 2000e-2(a)(1). Claims of sex-based discrimination under Title VII and the NYHRL are analyzed using the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010) ("We review discrimination claims brought under the NYSHRL according to the same standards that we apply to Title VII discrimination claims."). First, plaintiff must establish a prima facie case of sex discrimination by demonstrating that "(1) she was within the protected class; (2) she was qualified for the position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Liebowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009). "The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998) (internal quotation marks omitted). If the plaintiff successfully establishes a prima facie case, "the burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the adverse employment action." United States v. Brennan, 650 F.3d 65, 93 (2d. Cir. 2011) (internal quotation marks omitted). If the employer carries that burden, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004).

         A. Prima Facie Case & Legitimate Nondiscriminatory Justification

         It is uncontested that Walsh's sex places her in a protected class and that NYCHA's decision not to hire her constituted an adverse employment action. NYCHA argues that our analysis need not proceed past the prima facie stage, however, because Walsh has failed to demonstrate that she was qualified for the bricklayer position and that her rejection occurred under circumstances giving rise to an inference of discrimination. In the alternative, NYCHA points to Walsh's admitted lack of experience laying brick and block as the legitimate, nondiscriminatory reason upon which its decision was based. Walsh does not argue that NYCHA failed to meet its burden at the second stage of the McDonnell Douglas analysis; instead she argues that the district court erred by concluding at the third stage of that analysis that Walsh failed to offer sufficient evidence from which a reasonable jury may find that sex was a motivating factor in NYCHA's decision.

         The Supreme Court has held:

The prima facie case method established in McDonnell Douglas was never intended to be rigid, mechanized, or ritualistic. Rather it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination. Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether the defendant intentionally discriminated against the plaintiff.

U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (internal citations and quotation marks omitted).

         In part because Walsh's burden at the prima facie stage is minimal, Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001), and because Walsh does not argue that NYCHA failed to proffer a legitimate, nondiscriminatory explanation for its adverse employment action, the Aikens approach is appropriate here. We thus proceed directly to the third step of the McDonnell Douglas analysis and determine whether Walsh has produced evidence "sufficient to permit a rational finder of fact to infer that the defendant's decision was more likely than not based . . . in part on discrimination." Aulicino, 580 F.3d at 80.

         B. Viewing the Evidence as a Whole

         A plaintiff's evidence at the third step of the McDonnell Douglas analysis must be viewed as a whole rather than in a piecemeal fashion. Byrnie, 243 F.3d at 102 ("At summary judgment in an employment discrimination case, a court should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer. A court is to examine the entire record to determine whether the plaintiff could satisfy his ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff. A motion for summary judgment may be defeated where a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." (internal citations and quotation marks omitted)).[5] No one piece of evidence need be sufficient, standing alone, to permit a rational finder of fact to infer that defendant's employment decision was more likely than not motivated in part by discrimination. To use the apt metaphor coined by Vincent Gambini (one that seems only fitting given the facts of this particular case), a plaintiff may satisfy her burden by building a wall out of individual evidentiary bricks.[6]

         The district court erred when it failed to view Walsh's evidence as a whole and instead set aside each piece of evidence after deeming it insufficient to create a triable issue of fact that NYCHA's refusal to hire Walsh was based in part on the fact that she is female.

         C. No History of Female Bricklayers at NYCHA

         As the district court recognized, "[n]otably, at the time of the interviews, no women were employed by NYCHA as bricklayers, and as far as the interviewers knew, no woman had ever held the position." Walsh v. N.Y.C. Hous. Auth., No. 11 Civ. 6342, 2013 WL 6669381, at *3 (S.D.N.Y. Dec. 16, 2013). Noting that the lack of female bricklayers "does not, by itself, compel a finding of discrimination, " the district court concluded, however, that absent additional information pertaining to the quantity and quality of any previous female applicants, it was "unable to infer a discriminatory motive from the absence of female bricklayers at NYCHA." Id. at *9. Here, the problem with the piecemeal approach is on full display. Additionally, while the weight of this evidence (and thus the strength of any corresponding inference) would likely be enhanced if it were coupled with data regarding previous female applicants, the absence of such data does not automatically render the absence of female bricklayers irrelevant, not probative, or unfairly prejudicial.

         The district court confronted a similar situation in United States v. City of New York, 713 F.Supp.2d 300 (S.D.N.Y. 2010), a pattern or practice case in which the plaintiff did not proffer statistical evidence aimed at establishing the defendant's past treatment of the protected group. We agree with the court's lucid analysis of that issue in City of New York:

This case was litigated without resort to statistical evidence other than the elephant in the room-the incontrovertible fact that [the New York City Department of Transportation] has never hired a provisional female Bridge Painter. Because this case proceeded without the use of statistics, the Government did not seek an inference of discrimination based on the "inexorable zero" in [the Department's] hiring. Yet evidence of an inexorable zero is still relevant. First, a court cannot help but be circumspect where a municipal department in the country's largest city repeatedly selects only applicants of one sex for job vacancies-after all, zero is not just another number. Second, even in cases where there is a weak inference of an inexorable zero or scant evidence of other women who applied and were rejected, a court should consider that this lack of evidence may itself be attributable to the inexorable zero.

City of New York, 713 F.Supp.2d at 317-18 (internal citations and quotation marks omitted).

         NYCHA attempts to diminish the applicability to this case of the court's reasoning in City of New York to this case on the basis that Walsh brought an individual disparate treatment claim as opposed to the type of pattern or practice claim at issue in City of New York. This tactic backfires, however. In contrast to individual disparate treatment claims, "pattern-or-practice disparate treatment claims focus on allegations of widespread acts of intentional discrimination, " and require the plaintiff to "demonstrate that intentional discrimination was the defendant's standard operating procedure." Reynolds v. Barrett, 685 F.3d 198, 203 (2d Cir. 2012) (internal quotation marks and brackets omitted). As a result, statistical evidence of past actions is a mainstay of pattern or practice claims; the same is not true, however, of individual disparate treatment claims. See id. ("It bears noting that the heavy reliance on statistical evidence in a pattern-or-practice disparate treatment claim distinguishes such a claim from an individual disparate treatment claim. . . ." (internal quotation marks and brackets omitted)). Thus, the reasoning articulated in City of New York-and its conclusion that statistical data is not required for an "inexorable zero" to have probative value-rings all the more loudly in the context of this individual disparate treatment case.

         The finder of fact may properly consider the dearth of female bricklayers as one component of its cumulative inquiry. Of course, the absence of contextual or historical data is fodder for NYCHA when attempting to diminish the weight that the finder of fact ultimately attaches the absence of female bricklayers, as is evidence that NYCHA has hired women to fill positions in other skilled trades.

         D. Discrepancy in Qualifications & The Interview Process

         Walsh argues that her qualifications were superior to those of Joseph Giannotti and Michael Zambino, two of the successful candidates, and that a jury may use those facts to infer a discriminatory motive.[7] The district court cites this Court's opinion in Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001), for the proposition that a plaintiff seeking to prove a discriminatory motive using a discrepancy in credentials faces a weighty burden, specifically, that "plaintiff's credentials would have to be so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Walsh, 2013 WL 6669381, at *9 (quoting Byrnie, 243 F.3d at 103). The Byrnie court, however, began the paragraph immediately following this statement with the following caveat, which is relevant in this case: "Nevertheless, just because the discrepancy between [plaintiff and the successful applicant's] qualifications does not on its ...


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