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Race Discrimination (Termination) Claim Survives Under City, But Not Federal, Law

by mjpospis on August 9, 2018

in Employment Discrimination, Employment Law, Race/Color Discrimination

In McLeod v. General Vision Services, Inc. et al, 13-cv-6824, 2018 WL 3745662 (S.D.N.Y. Aug. 6, 2018), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s race discrimination claim under Title VII of the Civil Rights Act of 1964 and 42 USC 1981, but denied it with respect to plaintiff’s race discrimination claim under the New York City Human Rights Law.

This case illustrates the differences between the federal laws prohibiting race discrimination, on the one hand, and the comparatively broader NYC law, on the other.

As to plaintiff’s federal claims, the court explained:

Notwithstanding her blanket assertion that “[r]ace as well as age were the reasons for” her negative treatment at each store as well as the transfers, (see Pl.’s Decl. ¶¶ 83, 87), Plaintiff’s only evidence offered in support of discrimination based on race relates to the time period between the latter part of 2011 and 2012, when Pleshtiyev became her manager at Platinum, (see id. ¶ 88). Specifically, Plaintiff’s declaration as well as the journal entries submitted in support of her declaration attest to a number of racial comments made from approximately February 21, 2012 until April 24, 2012, including Pleshtiyev calling Plaintiff his “slave,” stating “all you black people are thieves” in reference to a former African American employee who had allegedly stolen from the store, and commenting, in reference to his transfer to JLS, that all of the sales personnel were “ghetto niggers” and that he would say “yo, what’s up nigger” to the JLS customers. (Id. ¶¶ 91, 101–02.) Plaintiff further declares that Pleshtiyev’s last day at Platinum was April 24, 2012—before her employment was terminated. (Id. ¶ 102.) Plaintiff does not, however, offer any evidence linking Pleshtiyev’s race-related statements to the termination of her employment. Moreover, although Plaintiff seems to argue that her discrimination claims, including those brought under Title VII, should survive summary judgment because Defendants terminated her employment “but retained employees and replaced her with employees outside of her protected class,” (see Pl.’s Opp. 17), the evidence shows that at the time her employment was terminated, Defendants terminated all sales associates, including a sales associate who was not African American, (see Pl.’s Decl. ¶ 109). See, e.g., Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001) (holding that a court may properly grant summary judgment if no reasonable jury could find that similarly situated employees outside of a plaintiff’s protected class were not similarly treated). Therefore, even considering the de minimus burden on Plaintiff to establish a prima facie case, I find that Plaintiff has not provided any evidence from which a reasonable jury could conclude that her termination was motivated by racially discriminatory intent.

Moreover, even if Plaintiff could establish a prima facie case of race-based discrimination, Defendants have offered sufficient evidence of a legitimate, non-discriminatory reason—namely, the financial difficulties the store was facing, including the $280,000 owed to the franchisor, (see Pl.’s 56.1 ¶¶ 51–52; Zavilensky Aff. ¶¶ 28–30; Coleman Aff. Ex. R; Luyblinsky Aff. ¶ 7)—and for the reasons noted above, Plaintiff cannot show that this reason was a pretext for race-based discrimination. Defendants’ motion for summary judgment as to Plaintiff’s non-NYCHRL race discrimination claims is thus granted. Because Title VII and § 1981 do not cover claims of age discrimination, Plaintiff’s discrimination claims brought under Title VII and § 1981 are dismissed in their entirety.

The court reached the opposite conclusion under the NYC Human Rights Law, however. Under that statute, explained the court, “a defendant is entitled to summary judgment only if the record establishes as a matter of law that discrimination played no role in its actions.” (Emphasis in original.) The court ruled that plaintiff “offered sufficient evidence to survive summary judgment as to her race-based discrimination claims brought under the NYCHRL.”

Categories: Employment Discrimination, Employment Law, Race/Color Discrimination

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