09-4534-cv Wharff v. State University of New York UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at 1 the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 2 York, on the 16 thday of March, two thousand eleven. 3 4 PRESENT: BARRINGTON D. PARKER, 5 GERARD E. LYNCH, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges

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------------------------------------------------------------------ 10 11 WILDRED WHARFF, 12 Plaintiff-Appellant , 13 14 v. No. 09-4534-cv 15 16 STATE UNIVERSITY OF NEW YORK, 17 Defendant-Appellee

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-------------------------------------------------------------------- 20 21 FOR APPELLANT: Steven A. Morelli, Garden City, New York. 22 23 FOR APPELLEE: Eric T. Schneiderman, Attorney General of the State of New 24 York, Barbara D. Underwood, Solicitor General, Michael S. 25 Belohlavek, Senior Counsel, Patrick J. Walsh, Assistant 26 Solicitor General, New York, New York. 27 28 Appeal from the United States District Court for the Eastern District of New York 29 (Sandra L. Townes, Judge ). 30 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 312 DECREED that the judgment of the district court is AFFIRMED. 1 Plaintiff-appellant Wildred Wharff sued his former employer, defendant-appellee 2 State University of New York (“SUNY”), for employment discrimination pursuant to Title 3 VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . The district court (Townes, 4
J.) granted summary judgment for SUNY and Wharff appealed. We assume the parties’ 5 familiarity with the factual background and procedural history of this case, which we 6 reference only as necessary to explain our decision. 7 DISCUSSION 8 We review orders granting summary judgment de novo, focusing on whether the 9 district court properly concluded that there was no genuine issue as to any material fact and 10 that the moving party was entitled to judgment as a matter of law. SeeAnemone v. Metro. 11 Transp. Auth. , 629 F.3d 97, 113 (2d Cir. 2011). 12 I. Disparate Treatment 13 Wharff alleges that SUNY refused to promote him from Lab Technologist to Assistant 14 Supervisor because of his se x. We analyze failure to promote claims under the tripartite 15 burden shifting framework laid out in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 16 802-04 (1973). The plaintiff bears the initial burden of establishing a prima facie case of 17 discrimination. Id . at 802. If he does so, the burden shifts to the employer “to articulate 18 some legitimate, nondiscriminatory reason” for its actions. Id .; seealsoAulicino v. New 19 York City Dep’t of Homeless Servs. , 580 F.3d 73, 80 (2d Cir. 2009). If the employer carries 20 that burden, the plaintiff can avoid summary judgment only if he comes forth with sufficient 213 evidence to permit a rational factfinder to c onclude that the employer’s justification was 1 merely a pretext and, in fact, its “employment decision was . . . based in whole or in part on 2 discrimination.” Aulicino , 580 F.3d at 80 (internal quotation marks omitted). 3 Wharff cannot, and does not attempt to, make out a prima facie case of discrimination 4 based on the two supervisory positions that he applied for, but did not receive, since both of 5 those positions went to other male applicants. Instead, Wharff argues that he should have 6 received one of three other positions that went to female employees without first being made 7 open to a competitive application process. Even assuming that this establishes a prima facie 8 case of discrimination, SUNY ha s offered a legitimate, nondiscriminatory reason for its 9 promotion decisions that Wharff has failed to rebut. 10 As SUNY explains, all three promoted female employees had previously assumed 11 many of the responsibilities of the supervisors they replaced, and had succeeded in those new 12 roles before being recommended for and receiving their promotions. Because they had 13 already assumed many of the responsibilities of their new roles, SUNY’s collective 14 bargaining agreement did not require an open application process. Wharff, however, had not 15 permanently assumed increased responsibility over those shifts or been recommended for one 16 of those promotions by his supervisor. He wa s therefore ineligible for direct promotion 17 outside of the open application process. 18 Wharff offers no evidence that SUNY applied its promotion procedures unfairly, that 19 the collective bargaining agreement’s sanctioning of the alternate hiring process was 20 negotiated as a pretext for sex discrimination, or that the selection of alternatives was 214 intentionally manipulated to accomplish such discrimination. The one open application 1 process that Wharff has challenged as discriminatory resulted in a male employee obtaining 2 the position, and both times that Wharff actually applied for an open position, SUNY filled 3 that position with another male employee. Those results refute Wharff’s claim that SUNY 4 manipulated the choice of application processes to discriminate against men. 5 Wharff attempts to undermine SUNY’s nondiscriminatory rationale by asserting that 6 he was more qualified than one of the promoted female employees. But even if that were 7 true, “Title VII does not require that the candidate whom a court considers most qualified for 8 a particular position be awarded that position; it requires only that the decision . . . not be 9 discriminatory.” Lieberman v. Gant , 630 F.2d 60, 67 (2d Cir. 1980). Where “a decision to 10 . . . promote . . . one person rather than another is reasonably attributable to an honest even 11 though partially subjective evaluation of their qualifications, no inference of discrimination 12 can be drawn.” Id . In this case, SUNY reasonably applied its promotion policy, and Wharff 13 did not possess sufficiently superior qualifications to undermine SUNY’s nondiscriminatory 14 explanation for its hiring decision. SeeDavis v. State Univ. of New York , 802 F.2d 638, 642 15 (2d Cir. 1986) (“[T]he reasons for hiring Sherman were not so ridden with error that 16 appellees could not have honestly relied upon them.”). We therefore conclude that Wharff 17 has failed to put forth sufficient eviden ce from which a jury could find that SUNY’s 18 promotion decisions were discriminatory. 195 II. Disparate Impact 1 Wharff also challenges SUNY’s promo tion policy on disparate impact grounds. In 2 support of this claim, Wharff c ontends that eight of the ten individuals promoted by Lab 3 Administrator Maria Mendez to two supervisory positions were female. Based on that data 4 alone, Wharff argues that “a reasonable trier of fact could have concluded that [SUNY’s 5 promotion] policy resulted in [a] discriminatory impact on males.” 6 “To make out a prima facie case of disparate impact, a plaintiff must ‘(1) identify a 7 policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal 8 relationship between the two.’” Malave v. Potter , 320 F.3d 321, 325 (2d Cir. 2003), quoting 9 Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147, 160 (2d Cir. 2001). Wharff’s 10 disparate impact claim fails because he cannot establish any sex-based disparity in 11 promotions. 12 Wharff has offered no information about th e proportion of qualified females in the 13 relevant applicant pool. It therefore remains unclear whether the number of female 14 employees promoted is disproportionate to their number in the relevant workforce. While 15 “[g]ross disparity between . . . employment and . . . percentage in the relevant work force 16 may imply . . . discrimination,” Guardians Ass’n of New York City Police Dep’t, Inc. v. Civil 17
Serv. Comm’n , 630 F.2d 79, 109 (2d Cir. 1980), without any evidence of the number of 18 females in the relevant workforce, we cannot conclude that a hiring disparity even exists, let 19 alone that any disparity is causally connected to SUNY’s promotion practices. 20 Furthermore, Wharff’s data is incomplete. Taking into account both promotions and 216 new hires, Mendez has selected a total of eighteen supervisors during her time at SUNY, 1 eighty percent more than Wharff’s data would suggest. Of those eighteen, exactly half were 2
male. As we stated in Smith v. Xerox Corp. , while “a subset can be chosen that will make 3 it appear as though the complained of practice produced a disparate impact[,] . . . when the 4 entire group is analyzed any observed differential may disappear, indicating that the 5 identified employment practice was not the cause of the disparity observed in the subset.” 6 196 F.3d 358, 369 (2d Cir. 1999), overruled on other grounds , Meacham v. Knolls Atomic 7 Power Lab. , 461 F.3d 134, 140 (2d Cir. 2006). In this case, an analysis of all of the new 8 supervisors who received their positions through the procedures demanded by SUNY’s 9 collective bargaining agreement reveals no sex-based disparity. 10 CONCLUSION 11 We have considered all of Wharff’s arguments on appeal and find them to be without 12 merit. We therefore AFFIRM the judgment of the district court. 13
14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court 16 17 18 19