646 F.Supp.3d 490
S.D.N.Y.2022Background
- Plaintiff Do No Harm, a recently formed nationwide association, sued Pfizer alleging its Breakthrough Fellowship discriminates by excluding white and Asian-American applicants and sought a preliminary injunction.
- Pfizer’s Breakthrough Fellowship (launched 2021) recruits juniors for a multi‑stage program aimed at increasing underrepresented racial/ethnic representation in leadership; applicants must meet GPA, citizenship, leadership, and stated program‑goal criteria.
- Fellowship materials state goals to increase Black/African American, Latino/Hispanic, and Native American pipelines; Pfizer also advertises other early‑career programs open to all and represents the Fellowship is not federally funded.
- Plaintiff brought several federal and state claims (Section 1981, Title VI, Section 1557, NYSHRL/NYCHRL, and advertising claims) on behalf of two anonymous purported members (Member A — white; Member B — Asian‑American) who say they would apply if discrimination stopped.
- The court held a conference, Plaintiff withdrew its TRO request, Pfizer opposed the preliminary injunction, and the court resolved the motion on submissions.
- The Court denied the preliminary injunction and dismissed the action without prejudice for lack of subject‑matter jurisdiction, principally because Plaintiff failed to establish associational and statutory standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Associational standing: must identify an affected member by name | Anonymous member declarations suffice; naming would chill members who fear reprisal | Summers and related precedent require at least one identified member unless all members are affected | Court: Plaintiff must identify at least one named member; anonymous declarations insufficient; lack of named member defeats associational Article III standing |
| Injury‑in‑fact: non‑applicant must be "able and ready" or show futility | Members say they are "able and ready" and deterred by Fellowship advertising; applying would be futile because program goals exclude whites/Asians | Fellowship materials do not categorically bar anyone; members’ declarations are conclusory and lack concrete plans or qualifications | Court: Declarations too sparse to show concrete, particularized, imminent injury or that application would be futile; no injury‑in‑fact established |
| Section 1981: can an association sue on members’ behalf? | Do No Harm contends Section 1981 allows associational claims | Pfizer invokes Second Circuit precedent barring associations from suing under Civil Rights Act provisions on members’ behalf | Court: Bound by Second Circuit precedent (Aguayo line); association lacks standing to assert §1981 claims on behalf of members |
| Title VI / §1557 standing: does Pfizer receive federal assistance such that Title VI/§1557 apply? | Plaintiff points to public‑private partnerships, clinical trials, and Medicare/Medicaid reimbursement as federal assistance | Pfizer says it does not receive federal assistance "as a whole," the Fellowship is not federally funded, and it is not principally engaged in providing health care | Court: Plaintiff failed to show (a) funds are aimed primarily at providing employment, (b) Pfizer receives federal assistance as a whole, or (c) Pfizer is principally engaged in providing healthcare; Title VI/§1557 claims lack standing |
Key Cases Cited
- Winter v. NRDC, 555 U.S. 7 (2008) (preliminary injunction standards)
- Summers v. Earth Island Inst., 555 U.S. 488 (2009) (associational standing requires identifying at least one affected member unless all members are affected)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (associational standing requires named members)
- Carney v. Adams, 141 S. Ct. 493 (2020) (non‑applicant must show concrete ability and readiness to apply)
- Jackson‑Bey v. Hanslmaier, 115 F.3d 1091 (2d Cir. 1997) (to challenge discriminatory selection policy a plaintiff ordinarily must submit to it unless application would be futile)
- Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973) (Second Circuit rule limiting associational standing under Civil Rights Act)
- Warth v. Seldin, 422 U.S. 490 (1975) (association may have standing only under specified conditions; Supreme Court addressed associational standing principles)
- Ass’n Against Discrimination in Emp’t, Inc. v. City of Bridgeport, 647 F.2d 256 (2d Cir. 1981) (Title VI employment claims require federal assistance primarily aimed at providing employment)
- NCAA v. Smith, 525 U.S. 459 (1999) (coverage requires actual receipt of federal assistance, not merely economic benefit)
- T.W. v. N.Y. State Bd. of Law Exam’rs, 996 F.3d 87 (2d Cir. 2021) (entity not covered where it does not actually receive federal funds)