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Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against individuals based on their race/color, religion, national origin, gender, gender identity, and sexual orientation. Likewise, the Age Discrimination in Employment Act of 1967 (“ADEA”) and Americans with Disabilities Act (“ADA”) provide the same protections for employees based on age (over 40) and disability.

To prove employment discrimination employees may either present direct evidence of discrimination or prove discrimination through circumstantial evidence. If the employee is using the circumstantial evidence approach, the United States Supreme Court established a three-step burden shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this framework, the employees must first establish a prima facie case of discrimination by showing that they belong to a protected class, were qualified for the job, were denied the job or suffered an adverse action, and that employees outside the protected class were either treated better or got the job. In wrongful termination cases, the last element is established by showing that the employee was replaced with someone from outside the protected class. When employees meet this burden, courts temporarily presume discriminatory motivation, and the burden shifts to employers to provide a legitimate, nondiscriminatory reason for their employment decision. The employer’s reason must be specific, clear, and nondiscriminatory. See Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 132 (2d Cir. 2012) (quoting Mandell v. County of Suffolk, 316 F.3d 368, 381 (2d Cir. 2003)) Once the employer provides a reason, the burden shifts back to the employee to show that the reason is a pretext for unlawful discrimination.

To avoid summary judgment once the employer provides evidence of a legitimate nondiscriminatory reason for their employment decision, the employee must present admissible evidence that indicates circumstances that could lead a reasonable fact-finder to infer that the decision was based, either in whole or in part, on discrimination. “When a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer,” that discrepancy itself must “allow[ ] a reasonable trier of fact to not only conclude the employer’s explanation was pretextual, but that the pretext served to mask unlawful discrimination.” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001). In such circumstances, “the 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.” Id.

Recently, in Martinez v. City of Stamford, No. 22-702-CV, 2023 WL 3162131, at *1 (2d Cir. May 1, 2023), Felix Martinez, a Hispanic member of the Stamford Police Department, sued his employer for national origin discrimination when two non-Hispanic white police officers were promoted to Sergeant over him. The employer did not contest the prima facie case but focused its motion for summary judgment on the fact that it had a legitimate business reason for the promotions. The United States Court of Appeals for the Second Circuit held:

Stamford describes legitimate nondiscriminatory reasons for selecting both Comstock and Malanga. Stamford notes that both selected candidates had bachelor’s degrees, while Martinez did not, and both scored higher than Martinez on the written portion of the promotional exam. Comstock had been selected as Police Officer of the Year and Malanga had been nominated for the award four times, but Martinez had been nominated only three times. Moreover, Malanga had already been serving as “de facto supervisor” prior to his promotion. App’x 336.

The district court correctly determined that Martinez’s credentials were not “so superior” that “no reasonable person, in the exercise of impartial judgment, could have chosen” Comstock or Malanga over him.

Id. at *2.

Thus, it is not good enough for an employee to show that they were qualified for the job or even a little more qualified. The employee must demonstrate clearly superior qualifications. From a practical standpoint, there needs to be at least some objective qualification to show that the plaintiff-employee is better to have a chance to get passed summary judgment or at least force a settlement. In Martinez, the employee failed to present any evidence of superior qualifications. This is why having the best employment lawyer is important. Skilled employment lawyers will be in the best position to identify and argue those qualifications.

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How can an employment lawyer help bring a failure to promote case?

Qualified employment lawyers can help bring a failure to promote case in several ways:

  1. Case Evaluation: An employment lawyer can evaluate the facts and circumstances of the case to determine whether there is a viable legal claim. They can review the employer’s policies, procedures, and past practices to determine whether they were followed, and whether there is evidence of discrimination or retaliation.
  2. Investigation: An employment lawyer can conduct an investigation into the employer’s conduct, including interviewing witnesses, reviewing documents, and gathering evidence to support the case.
  3. Legal Strategy: An employment lawyer can help develop a legal strategy to pursue the case, including deciding which legal claims to assert and the best way to present the evidence.
  4. Negotiation: An employment lawyer can engage in settlement negotiations with the employer to attempt to resolve the case before trial.
  5. Litigation: An employment lawyer can represent the employee in litigation, including filing a complaint, conducting discovery, and preparing for trial.
  6. Trial: An employment lawyer can represent the employee in trial, presenting evidence, cross-examining witnesses, and arguing on behalf of the employee.

Overall, an employment lawyer can help an employee bring a failure to promote case by providing legal guidance, advocating on behalf of the employee, and representing their interests throughout the legal process. If you need that kind of help, it would be best to call the right attorney to schedule a free and confidential consultation. Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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This employment law website is an advertisement. The race discrimination, national origin discrimination, and failure to promote materials in this blog and at this Title VII and employment discrimination website are for informational purposes only. This blog is not giving you direct legal advice. Should you need legal advice about your workplace discrimination, it would be best for you to call our top attorneys to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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