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Comment that office “could lighten up a bit” garners race bias claims a second chance

Finding a lower court had “overlooked evidence” in holding that an African-American plaintiff lacked sufficient evidence of pretext to support his Title VII race discrimination and retaliation claims, the Second Circuit vacated two district court orders granting summary judgment to the employer and revived the pro se plaintiff’s claims. The record contained several examples of pretext evidence that could be credited by a jury, including statements by the employee’s former supervisor, in regards to his ability to discipline his African-American regional managers, that “they don’t know how to police each other” and a statement that the regional office “could lighten up a bit,” the appeals court found (Kirkland v Cablevision Systems, July 25, 2014, per curiam).

The employee was the only African-American area operations manager working for the defendant employer. Less than a month after his latest complaint of race discrimination to a human resources executive, he was fired. Prior to that time, he had made multiple complaints of discrimination to HR, particularly with regards to being singled out from the other area operations managers. When he was fired, he filed charges with the EEOC, contending that his termination appeared to be retaliatory, and then filed suit, alleging Title VII and state law claims. The employer’s initial motion for summary judgment was denied with regards to the retaliation claim, but granted as to the race discrimination claims. After a motion for reconsideration, the court also granted summary judgment on the retaliation claims.

Genuine factual dispute. The Second Circuit determined that the lower court had overlooked evidence that raised a genuine factual dispute regarding whether the employer’s reasons for firing the employee (poor performance reviews and affidavits from three regional managers he supervised) were pretext for retaliation and race discrimination. In so doing, the appeals court pointed to several instances of evidence that could lead a jury to find that the employer had violated Title VII. The court also noted that the plaintiff was pro se and, therefore, the court had to “construe his submissions liberally and interpret them ‘to raise the strongest arguments that they suggest.’”

“KKK without the hood.” Of particular note was testimony by the employee’s replacement in the position. She testified that the supervisor had explained the employee’s termination as resulting from his inability to discipline a subordinate. All of the regional managers working under him were African-American, and his supervisor told the replacement that he “ha[d] come to learn that they don’t know how to police each other.” The supervisor also told her, regarding the managers, that the regional office “could lighten up a bit.” She also testified that she believed the supervisor was “racist” and that she had also complained to HR about him. She testified that the HR manager told her that the supervisor was “known as the KKK without the hood.”

Additional evidence. The employee also swore that the supervisor singled him out for criticism, including complaining at one time about a presentation he gave using a colored background, telling him that there was “no room for color in a business presentation” and that “white was better than color.” He also swore that the HR manager had falsified and back-dated documents relating to his performance, which the court explained was “made plausible” by the replacement’s testimony that the supervisor had asked her to drum up negative information on the employee after he sued. The employee also testified that “[he] wouldn’t be surprised” if the supervisor had falsified the regional managers’ affidavits. As the court noted, the HR executive had written that those particular managers were “not receptive to coaching.”

Furthermore, there was evidence that the employee had complained about retaliation and race discrimination months earlier, and had repeatedly asked for a response from HR. In a meeting with an HR employee, he complained about the lack of follow-up and blamed the earlier complaint for his performance review. Again, the court pointed to notes made by the HR associate that could support the employee’s testimony regarding his complaints about being treated differently and not hearing back regarding his earlier complaint. It was up to the jury, the court explained, to credit some, all, or none of this evidence. And if believed, a jury could decide that discrimination was wholly or at least partly the basis for the termination, and that “retaliation would not have occurred ‘but-for’ the alleged wrongful actions.” Therefore, the court vacated the grants of summary judgment in the employer’s favor and remanded the case.
By Brandi O. Brown, J.D.