In Rao v. Rodriguez, No. 14-cv-1936, 2017 WL 1214437 (E.D.N.Y. Mar. 31, 2017), the court denied defendants’ motion for summary judgment on the race, national origin, and age discrimination[1]In this post I’ll discuss the court’s evaluation of plaintiff’s race/national origin discrimination claims. allegations asserted by plaintiff (a brown-skinned man of Indian national origin who held the position of Chairman at defendant’s Department of Surgery until his resignation).
This decision is instructive as to, inter alia, the application of the “stray remarks” doctrine in the context of a defense motion for summary judgment in an employment discrimination case. Citing Henry v. Wyeth Pharm., Inc., 616 F.3d 134 (2d Cir. 2010), the court explained the four factors courts use to determine “whether a remark is probative of discriminatory intent.” They are:
(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker);
(2) when the remark was made in relation to the employment decision at issue;
(3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and
(4) the context in which the remark was made (i.e., whether it was related to the decision-making process).
Judge Garaufis next explained why these factors favored plaintiff:
Rodriguez [defendant Wyckoff’s CEO] allegedly made several remarks that could be interpreted as describing Plaintiff’s brown skin, his Indian origin, or both. These remarks include: (1) saying on two occasions that Plaintiff’s face “looks like an oyster shell”; (2) stating that “there is a certain ethnic culture” at Wyckoff, and that “one of [Rodriguez’s] jobs is to change that”; (3) referring to an alleged “Indian Mafia” and “House of Arya” among Wyckoff’s medical staff; and (4) referring to Plaintiff as a “brown monkey.”
Turning to the Henry factors, the court notes that all four comments were allegedly made by Wyckoff’s CEO, a key decision maker with regard to high-ranking medical offices. Other than the “brown monkey” comment, all the alleged remarks were made within weeks of Plaintiff’s departure, and appear to have been directly “related to the decision-making process,” Henry, 616 F.3d at 149: Rodriguez allegedly made the “oyster shell” and “ethnic culture” comments while explaining why he wanted Plaintiff to leave Wyckoff, and made the “Indian Mafia” and “House of Arya” comments while discussing his more general desire to remove certain individuals from Wyckoff’s staff.
Defendants emphasize the third Henry factor—“whether a reasonable juror could view the remark as discriminatory”—and argue that the “oyster shell,” “ethnic culture,” and “House of Arya” comments could be interpreted as referring neither to South Asian race nor to Indian origin. (See Wyckoff Mem. at 9-15.) Indeed, the deponents in this case differed in their understanding of what these comments were intended to convey. (See, e.g., id. at 10-11.) The court acknowledges that certain individual comments may not have explicitly named a protected characteristic. Nonetheless, the court recognizes its duty to “resolve all ambiguities and draw all inferences” in Plaintiff’s favor at this stage of the proceedings. Frederick, 665 Fed.Appx. at 33 (citation omitted). Rodriguez’s alleged remarks, assessed in the aggregate, could reasonably be interpreted as evidence that Plaintiff’s race or national origin were a “motivating factor[ ]” in Rodriguez’s employment decisions. Garcia, 706 F.3d at 127.
The fact that Rodriguez instated an Indian physician as Acting Chief of Surgery does not necessarily undermine this conclusion. “[T]he focus remains on whether the plaintiff ‘lost out because of his [protected characteristic].’ ” See Ehrbar v. Forest Hills Hosp., 131 F. Supp. 3d 5, 27 (E.D.N.Y. 2015) (quoting O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996)). If Plaintiff is correct that Defendants sought to reduce the overall number of physicians of South Asian race or Indian origin at Wyckoff, then Defendants could have furthered that discriminatory goal by terminating one member of the protected group and granting the newly empty title to an existing employee from the same group. Consistent with that narrative, Plaintiff alleges that the outside doctor ultimately chosen as the new permanent Chief of Surgery was not of Indian origin or race. (Pl. Opp’n at 2 n.2.) *8
In addition, Plaintiff need not prove that Defendants’ proffered non-discriminatory bases were mere pretext for the adverse employment action. To defeat summary judgment, Plaintiff need only show “that they were not the only reasons and that the prohibited factor was at least one of the motivating factors.” Garcia, 706 F.3d at 127 (emphasis added) (citation omitted).
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