UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part and VACATED and REMANDED in part.
Lionel Allen, an employee of the New York City Department of Environmental Protection ("DEP"), appeals from a judgment of the District Court (Forrest,
The District Court granted the City's motion for summary judgment on all of Allen's claims. It dismissed Allen's failure-to-promote claim principally because (1) the evidence showed that Allen was not qualified for the positions that he sought, and (2) there was no admissible evidence that allowed for a reasonable inference of discrimination. We address both of these grounds.
In concluding that Allen was not qualified, the District Court pointed to evidence that Allen lacked the year of supervisory experience listed in the job description for the Supervisor Watershed Maintenance I ("SWM I") position to which he applied. But there is contrary admissible evidence. Ralph Marchitelli, the DEP's Chief of Eastern Operations, testified both that Allen "did meet the basic requirements" for the SWM I position and that Marchitelli had never disapproved an applicant "who met the basic requirements" of that job. Based on Marchitelli's testimony, which comported with the City's Rule 56.1 statement that Allen satisfied the basic qualifications for the SWM I position, a rational jury could conclude that the DEP "did not in practice consider [supervisory experience] part of the basic eligibility" for the SWM I position.
Inference of Discrimination
At his deposition, co-worker Francisco Barquet testified that the DEP's Acting Chief of Eastern Operations, Mark Donecker, told him that Allen had been the subject of discrimination. The District Court concluded that this testimony was speculative and contained inadmissible hearsay. At oral argument before this Court, however, the City conceded that Donecker's statement to Barquet was not hearsay.
At oral argument, the City further conceded that there was no admissible evidence that Salvatore Siciliano, who ultimately was hired for the January 2007 SWM I position, had superior qualifications to Allen by virtue of his supervisory experience.
In light of these concessions, we conclude that the City was not entitled to summary judgment on Allen's failure-to-promote claim in connection with the SWM I position. We therefore vacate the grant of summary judgment as to that claim and remand for further proceedings.
We have considered Allen's remaining arguments as to his other claims, including his claims of retaliation, and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED in part and VACATED and REMANDED in part for further proceedings consistent with this order.