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Second Circuit Eases Burden of Proof of Discrimination Plaintiffs

June 13, 2000

The U.S. Court of Appeals for the Second Circuit in New York has recently eased the burden to be met by an employee claiming a discriminatory failure to promote. Mauro v. Southern New England Telecommunications, Inc., 2000 WL 332007 (2d Cir. March 30, 2000).

The plaintiff in Mauro claimed that his employer failed to promote him on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"). The District Court granted summary judgment to the employer, on the grounds that the plaintiff had never applied for the positions he alleged were filled by younger individuals. The Second Circuit affirmed the dismissal of plaintiff's complaint, albeit on different grounds. Specifically, the Court found that the action was properly dismissed because the plaintiff had not met his burden under Fisher v. Vassar College, 114 F.3d 1332, 1338-39 (2d Cir. 1997) (en banc): that is, he had not shown that the employer's proffered reasons for selecting others to fill the positions at issue were a pretext for age discrimination.

Prior to reaching this conclusion, however, the Second Circuit took pains to clarify that, to establish a prima facie case of discriminatory failure to promote, the plaintiff-appellant in this case was not required to demonstrate that he had actually applied for a specific promotion which was ultimately awarded to a younger person. Rather, the Court distinguished the facts in Mauro from those at issue in its earlier decision in Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998), where it held that, to meet the prima facie burden in a failure to promote case, the plaintiff must identify a specific promotion or promotion(s) for which he or she applied. In Mauro, the plaintiff had indicated to his employer that he was interested in being promoted to a particular class of positions. However, because the employer never posted open positions (electing instead to hand-pick individuals to fill those positions), Mauro was unaware of any specific openings and he therefore did not apply for any specific promotion. The Court concluded that, "[i]n such a situation, requiring the plaintiff to show that he or she applied for the specific jobs at issue would be unrealistic, as an employee by definition cannot apply for a job that he or she does not know exists."

The lesson to be learned from Mauro is this: once an employee articulates his or her desire for promotion in general terms (a desire employees often express in general terms during annual performance reviews, for example), the employer may face legal exposure if it fails to notify that employee when higher-level positions become available. Employers can minimize their exposure to failure to promote claims by posting all open positions and permitting all interested persons to apply for those positions.