UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED, AND DECREED the judgment of the District Court AFFIRMED in part and VACATED and REMANDED in part.

Lionel Allen, employee of the New York Department of Environmental Protection (“DEP”), appeals from judgment of the (Forrest, J.) granting summary judgment in favor of of New York. claims promoted because of race and national origin and he retaliated against complaining about discrimination, violation U.S.C. § Title VII Civil Rights Act 1964, U.S.C. § 2000e et seq., and New York State Human Rights Law, N.Y. Exec. Law § assume parties’ familiarity facts and record prior proceedings, which refer only as necessary explain our decision affirm vacate remand part. granted City’s motion all Allen’s claims. It dismissed Allen’s failure promote claim principally because (1) *3 the evidence showed that Allen was not qualified for the positions that he sought, (2) there was no admissible evidence that allowed for reasonable inference of discrimination. address both of these grounds.

1. Qualifications

In concluding that Allen not qualified, the pointed evidence that Allen lacked the year supervisory experience listed in the job description for the Supervisor Watershed Maintenance I (“SWM I”) position which applied. But there contrary admissible evidence. Ralph Marchitelli, the DEP’s Chief Eastern Operations, testified both that Allen “did meet the basic requirements” the SWM I position Marchitelli had never disapproved applicant “who met the basic requirements” job. Based on Marchitelli’s testimony, which comported the City’s Rule 56.1 statement Allen satisfied basic qualifications SWM I position, rational jury could conclude DEP “did not in practice consider [supervisory experience] basic eligibility” SWM I Aulicino N.Y.C. Dep’t Homeless Servs., 2009) (quotation marks omitted). thought Allen could rely Marchitelli’s testimony because there uncontroverted evidence withdrew application position But affidavit, submitted opposition DEP’s motion, *4 disputes that ever refused be considered that On judgment, must assume a fact finder will credit Allen. See Garnett v. Undercover Officer C0039, 838 F.3d 265, 274 (2d Cir. 2016). Inference Discrimination

At his deposition, co worker Francisco Barquet testified that DEP’s Acting Chief Eastern Operations, Mark Donecker, told him had been subject discrimination. concluded this testimony was speculative contained inadmissible hearsay. At oral argument before this Court, however, conceded Donecker’s statement Barquet was not hearsay. See Oral Arg. Audio at 20:50–21:10; Fed. R. Evid. 801(d)(2)(D). Moreover, reasonable jury could find such a statement from one DEP supervisor another was speculation but communication about important employment matter within scope agency. See Walsh v. N.Y.C. Hous. Auth., 828 F.3d 79–80 (2d Cir. 2016); Cook Arrowsmith Shelburne, Inc., 1235, n.1 1995).

At oral argument, further conceded there no admissible evidence Salvatore Siciliano, who ultimately hired January position, had superior qualifications by virtue supervisory experience. See Oral Arg. Audio at 25:40–26:10.

In light these concessions, conclude entitled to summary judgment Allen’s failure to promote claim connection with SWM I We therefore vacate grant judgment as to claim and remand further proceedings. have considered Allen’s remaining arguments as other claims,

including claims retaliation, and conclude they are without merit. For foregoing reasons, Court is AFFIRMED part VACATED REMANDED further proceedings consistent this order. THE COURT:

Catherine O = Hagan Wolfe, Clerk

[1] also agreed it informed would be considered future positions. Viewed most favorably Allen, this admits inference under consideration those positions. See Brown Coach Stores, Inc., 1998). On remand, instructed also consider Allen’s claim insofar as it relates these positions.