Age/Disability Discrimination Case Illustrates Difference Between “But For” and “Mixed Motive” Causation Standards

In Najjar v. Mirecki, 11-cv-5138 (SDNY July 2, 2013), the Southern District of New York held that a pro se plaintiff raised a triable issue of fact as to various claims of discrimination.

This case illustrates the difference between the heightened “but for” and lessened “mixed motive” causation standards, as well as the differences between the New York State and City Human Rights Laws.

Specifically, the court permitted plaintiff’s ADA disability, NYSHRL disability, NYCHRL disability, and NYCHRL age discrimination claims to continue. It dismissed plaintiff’s ADEA and NYSHRL age discrimination claims, which were subject to the heightened “but for” causation standard.

Plaintiff claimed that he was terminated because of his age and disability; namely, that he was fired shortly after returning to work following a heart attack while recovering from a wrist injury.  In support, plaintiff cited various comments by his employer that allegedly reflected age/disability bias.

“In a discrimination action, the Court must examine the record as a whole and decide whether plaintiff could satisfy his “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him.”

As an initial matter, the court dismissed plaintiff’s claims against the Department of Education (DOE), since, under NYC’s “indirect System of Custodial Supervision”, Mr. Mirecki (who held the position of “Custodial Engineer”), and not the DOE, was plaintiff’s “employer”.  Here, the DOE contracted with Mirecki, and the Collective Bargaining Agreement covering plaintiff included only plaintiff’s union and the Custodial Engineers as parties. Since plaintiff did not offer any evidence that the DOE was his “employer”, the court granted summary judgment to the DOE.

The court next turned to plaintiff’s discrimination claims, which it evaluated under the burden-shifting analysis articulated by the Supreme Court in McDonnell-Douglas v. Green.

Under that framework:

[P]laintiff must first establish a prima facie case of discrimination by showing (1) that he was within a protected group; (2) that he was qualified for his position; (3) that he suffered an adverse employment action; and (4) that such action occurred under circumstances giving rise to an inference of employment discrimination.  As to the disability claim, plaintiff must demonstrate the third prong by presenting evidence that “he was otherwise qualified to perform the essential functions of his position, with or without reasonable accommodation.

If plaintiff establishes a prima facie case, defendants then bear the burden to articulate some legitimate, nondiscriminatory reason for the [adverse act]. Defendants’ burden is one of production, not persuasion.

Should defendants satisfy that requirement, plaintiff must then proffer sufficient evidence to raise a triable issue of fact as to whether defendants’ legitimate, nondiscriminatory reason was merely pretextual.  Otherwise, defendants will be entitled to summary judgment.

The court stated the law regarding so-called “stray remarks”:

It is well-established in this Circuit that the stray remarks of a decisionmaker, without more, cannot prove a claim of employment discrimination. Only where 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.

Citing the Second Circuit’s decision in Fried v. LVI Servs., the court recited

four non-dispositive factors appropriately considered in deciding what weight to accord isolated remarks suggestive of discriminatory bias: (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).

The court held that the evidence provided by plaintiff raised a triable issue regarding his prima facie case:

Here, plaintiff testified that Mirecki made at least two negative comments regarding plaintiff’s advanced age and his heart condition in close proximity to his termination. Both comments occurred between October 2010, when plaintiff suffered the wrist injury, and February 2011, when he returned to work full time: first, that Mirecki told plaintiff “this job is for juniors not seniors” and, second, that plaintiff’s heart attack made him “good for paperwork only”. In addition, plaintiff alleges that his supervisor, Prendi, “pushed [him] to leave [his] job” upon his return in January 2011 and said “[you’re] going to die on the stairs, the job is hard, the boss is tough” and that “you’re only good for paper work.” Plaintiff alleges that Prendi made comments to this effect both in the locker room at work and over the telephone. He also avers that no such comments were ever made before he broke his wrist and suffered a heart attack. However, plaintiff admits Mirecki never told him directly that his termination was in any way related to his age or disability status.

Applying the Fried framework to plaintiff’s de minimus burden to make out a prima facie case of discrimination, a reasonable jury could conclude that the comments by Mirecki and Prendi give rise to an inference of age and disability discrimination. The “job is for juniors”, “good for paperwork only”, and “die on the stairs” comments directly connected plaintiff’s age and heart condition to doubts about his ability to do his job. Further, a reasonable jury could find that Mirecki’s admonition that plaintiff only return to work if he was medically cleared with “no conditions” raises a triable inference of disability discrimination. In addition, the comments are attributable to figures of authority—plaintiff’s employer and his direct supervisor. Finally, the comments are alleged to have been uttered in close proximity to plaintiff’s termination. Even if, as defendants suggest, the comments were made innocuously rather than with animus, that is for the jury to determine. Plaintiff thus raises a triable issue as to the prima facie case.

The court noted that, while these comments raised a triable issue as to plaintiff’s prima facie discrimination case, plaintiff did not allege a hostile work environment claim, and in any event, the comments identified by plaintiff would “not support a claim of discriminatory harassment.”

The court proceeded to explain why plaintiff failed to raise a triable issue as to his prima facie ADEA and NYSHRL age discrimination claims.  Under these statutes, he was required to “raise a triable issue that age was the singular, but-for cause of his termination.

This, he could not do:

[O]nce plaintiff has made out a prima facie case, defendants must articulate a legitimate, age- and disability-neutral justification for the termination. Here, Mirecki states that the DOE budget cuts in October 2010 and January 2011 necessitated a layoff and that the CBA required the least senior employee—plaintiff—to be selected.

The burden then shifts back to plaintiff to prove that the budget cuts were merely pretexts for discrimination. For the ADEA and NYSHRL age discrimination claims, [the Supreme Court’s decision in] Gross v. FBL Fin. Servs., makes clear that in order to withstand summary judgment, plaintiff must raise a triable issue that age was the “but for” reason for the adverse employment action.

Plaintiff fails to raise a triable issue that age was the but-for cause of his termination, as is required for the ADEA and NYSHRL age claims under Gross. Plaintiff’s case is much like that of the plaintiff in Fried. There, the Second Circuit affirmed a grant of summary judgment for the defendant-employer where, despite age-related comments to plaintiff by defendant’s CEO six weeks prior to plaintiff’s termination, overwhelming documentary evidence of non-discriminatory motivation made it nevertheless insufficient to permit reasonable jury to conclude that ‘but for’ defendants’ age bias, [plaintiff] would not have been terminated.

Here, plaintiff relies upon the comments by Mirecki and Prendi, but those isolated comments must be read in a context with the evidence that supports non-discriminatory motivations for the termination: namely, the indisputable cuts to Mirecki’s budget, his termination of three employees who were not members of the protected class, the CBA seniority provisions, and the fact that Mirecki did not replace plaintiff with any other employees prior to his own retirement. On that record, plaintiff has not raised a triable issue that age was the “but-for” cause of his termination.

However, plaintiff was not required to show “but for” (i.e., singular factor) causation for his ADA, NYSHRL disability, or NYCHRL age or disability claims, since those statutes are not subject to the heightened Gross causation standard.  For those claims, plaintiff was permitted to rely on a “mixed-motive” theory, i.e., that discrimination was “a motivating factor” of plaintiff’s termination. (The court did note, however, that whether ADA claims require proof of “but for” causation, or are subject to the lesser “mixed motive” standard, is not settled in the Second Circuit.)

Plaintiff met his burden to show a triable issue of pretext under a “mixed motive” theory:

While Mirecki presented evidence of budget cuts and the CBA seniority provision as factors motivating plaintiff’s termination, the comments regarding plaintiff’s age and medical conditions raise a triable issue as to whether discrimination was a motivating factor of his discharge. In addition, the fact of budget cuts does not conclusively establish that Mirecki could not have allocated his funds differently to avoid terminating plaintiff. Though a reasonable jury could not conclude that the budget cuts were purely pretextual, it could reasonably conclude that the budget cuts were a convenient coincidence that occurred concurrent to improper age or disability discrimination by Mirecki. Thus, plaintiff’s ADA, NYSHRL disability, and NYCHRL age and disability claims shall proceed.

Accordingly, the court granted summary judgment to defendant Mirecki on plaintiff’s ADEA and NYSHRL age discrimination claims, and permitted plaintfiff’s ADA, NYSHRL disability, and NYCHRL age and disability claims against Mirecki to proceed to trial.

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