In Snowden v. County of Sullivan, 22 CV 514 (VB), 2024 WL 4882700 (S.D.N.Y. Nov. 25, 2024), the court denied defendant’s motion for summary judgment on plaintiff’s claim of race discrimination asserted under Title VII of the Civil Rights Act of 1964.
After summarizing the black-letter law, including the McDonnell Douglas burden-shifting framework applicable to such claims, and evaluating step 1 (prima facie case) and step 2 (legitimate, nondiscriminatory reason), the court turned to the third and final step, pretext:
“In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination.” Weinstock v. Columbia Univ., 224 F.3d at 42. Indeed, “a plaintiff’s evidence at the third step of the McDonnell Douglas analysis must be viewed as a whole rather than in a piecemeal fashion.” Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 76 (2d Cir. 2016).
Although plaintiff was suspended following her involvement in the 2020 Incident, she has adduced sufficient—if thin—evidence to create an issue of material fact as to whether the County’s reason for her suspension was pretextual. To satisfy the burden of showing pretext on summary judgment, a plaintiff “need only show that the employer’s stated reason—even if true or factually accurate—was not the real reason, in the sense that it was not the entire reason due to a coexisting impermissible consideration.” Bart v. Golub Corp., 96 F.4th at 575. Here, plaintiff has presented enough evidence of discriminatory practices at the Care Center, including derogatory remarks about plaintiff’s appearance and behavior, discriminatory treatment by white employees, and preferential treatment of white nurses, that predate the incidents underlying her suspension.
Viewed in isolation, the derogatory comments—including Southerton’s comments that plaintiff acted “ghetto” and implications that she disliked plaintiff’s hair because it was not “real” hair (Pl. Dep. at 22–23, 30)—could be considered “stray remarks,” which by themselves “do not constitute sufficient evidence to make out a case of employment discrimination.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). However, because these remarks were not the only indicia of discrimination, they must be considered in the context of other evidence of discriminatory treatment by plaintiff’s supervisors and other nurses. Id. (“When other indicia of discrimination are properly presented, the remarks can no longer be deemed stray, and the jury has a right to conclude that they bear a more ominous significance.”). Given the evidence of discriminatory practices prior to the incidents defendant argues predicated plaintiff’s suspension, a reasonable jury could find defendant’s proffered reason for suspending plaintiff—namely, her disciplinary record—was not the entire reason for plaintiff’s suspension.
Moreover, discriminatory intent could be inferred because Southerton, together with other County personnel, decided to suspend plaintiff and to pursue Section 75 charges against her. “Where the adverse decision is made by two or more persons, some of whom are motivated by discrimination, while others are motivated by other reasons,” a reasonable jury may find discriminatory intent despite an employer’s legitimate, non-discriminatory explanation. Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 157 (2d Cir. 2001). Indeed, “a Title VII plaintiff is entitled to succeed, even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the process.” Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008). Here, a reasonable jury could determine that Southerton was motivated by an impermissible bias and played a “meaningful role” in plaintiff’s suspension, despite the involvement of other County personnel. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (“We recognize that the impermissible bias of a single individual at any stage of the process may taint the ultimate employment decision in violation of Title VII.”).
Finally, in the report and recommendation following the Section 75 Hearing, the hearing officer observed that plaintiff “brought up several allegations of discrimination against her” at the Care Center. (Doc. #79-5 at ECF 5). Although the hearing officer concluded the allegations were relevant to the proceeding, she did not hear testimony or view any evidence substantiating the discrimination claims, aside from plaintiff’s own testimony. Therefore, the Section 75 Hearing did not include “substantial evidence” of plaintiff’s discrimination allegations such that the hearing officer’s conclusion is “probative of the absence of discriminatory intent” in the adverse employment action. Collins v. N.Y.C. Transit Auth., 305 F.3d at 119. Together with the evidence of other race-based discrimination, a reasonable jury could conclude defendant’s proffered reason for suspending plaintiff was pretextual, and that plaintiff was suspended, at least in part, because of her race.
Finally, the court disagreed with defendant’s argument that “plaintiff’s own testimony cannot create a genuine issue of material fact as to pretext.”
Noting that “[u]nless a plaintiff’s testimony is contradictory, incomplete, self-serving, or so replete with inconsistencies that no reasonable jury could credit it, the testimony may be used to create a genuine issue of material fact,” the court explained that “[h]ere, plaintiff’s deposition testimony is not so replete with inconsistencies and improbabilities that a reasonable jury could not credit it” such that “plaintiff’s testimony may be used to create a genuine issue of fact.”