McKeon v. Johnson
692 F. App'x 650
| 2d Cir. | 2017Background
- Plaintiff Gregory McKeon, an external applicant, applied in 2009 for one of two TSA Transportation Security Inspector (TSI) vacancies at JFK Airport; two internal TSA candidates (one male, one female) were hired.
- McKeon sued under Title VII alleging gender discrimination in the hiring decision; he also raised an age claim which he did not appeal.
- The district court granted summary judgment for the Secretary of Homeland Security (TSA), concluding McKeon failed to show unlawful discrimination; McKeon appealed.
- The Second Circuit reviewed de novo and applied the McDonnell Douglas burden-shifting framework for disparate treatment claims.
- The TSA’s stated, legitimate reason was a preference to hire highly qualified internal TSA candidates with aviation security experience to address internal promotion concerns.
- McKeon also argued (for the first time in district court opposition) that preferring internal candidates had a disparate impact on men by avoiding veterans’ preference available to external candidates; he offered no statistical evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McKeon established the fourth McDonnell Douglas prima facie element (circumstances permitting an inference of discrimination) | Scott’s decision to hire only internal candidates indicates gender discrimination against external male applicants | No evidence the internal pool had fewer or less-qualified males; one hired internal was male; no basis to infer discrimination | McKeon failed to show a genuine dispute on the fourth element; summary judgment affirmed |
| Whether TSA’s proffered reason (preference for highly-qualified internal TSA applicants) was pretextual | The preference was pretext to exclude external male applicants | The preference was reasonable and genuinely motivated by internal morale/advancement concerns and aviation experience | McKeon offered no evidence of pretext; summary judgment affirmed |
| Whether preferring internal candidates had a disparate impact on men via veterans’ preference available to externals | Veterans’ preference would advantage more men, so excluding externals disparately impacted men | No statistical showing of significant disparity between internal and external pools; argument speculative | Plaintiff failed to make the required threshold statistical showing; disparate-impact theory rejected |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for employment discrimination)
- Ricci v. DeStefano, 557 U.S. 557 (plaintiff must show significant statistical disparity for disparate-impact claims)
- Vivenzio v. City of Syracuse, 611 F.3d 98 (2d Cir. 2010) (discusses elements of prima facie Title VII case)
- Kulak v. City of New York, 88 F.3d 63 (2d Cir. 1996) (speculation does not defeat summary judgment)
- Molnar v. Pratt & Whitney, [citation="63 F. App'x 528"] (2d Cir. 2002) (no inference of discrimination without evidence about applicant pool)
- Delaney v. Bank of America Corp., 766 F.3d 163 (2d Cir. 2014) (court will not second-guess reasonable business-judgment hiring decisions)