In Herling v. New York City Dep’t of Educ., No. 13-CV-5287 JG VVP, 2015 WL 5307752 (E.D.N.Y. Sept. 10, 2015), the court denied defendant’s motion for summary judgment on plaintiff’s claims of discrimination based on his race (white) and religion (Jewish).
The court explained the basic framework for evaluating a Title VII claim on a summary judgment motion:
In assessing a defendant’s motion for summary judgment on a Title VII claim, courts generally apply the burden-shifting framework first adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id. This burden is not difficult to meet, as even a de minimis showing may be sufficient to establish a prima facie case. If the plaintiff satisfies this initial burden, the burden shifts to the defendant to offer a nondiscriminatory reason for its action. If the defendant provides such a reason, the motion for summary judgment may still be denied if the plaintiff can show that the defendant’s proffered reason is a pretext for discrimination. To show pretext, a plaintiff is not required to prove the employer’s stated justification was asserted with intent to deceive or in bad faith; rather, he must simply show that discrimination played a role in an adverse employment decision.
After determining that plaintiff raised a question of fact as to whether his “U” rating was an “adverse employment action”, the court held that plaintiff “established that the circumstances surrounding the U-rating give rise to an inference of discrimination.”
The court explained:
Herling has put forward several items of evidence in support of his claim that his U-rating occurred in circumstances that give rise to an inference of discrimination. Most probative is that before the start of the 2009 school year, when Herling went to [principal Carlston] Gray’s office to ask about being hired for per-session work as a soccer coach, Gray told Herling he could not submit a written application for the position because Herling was “not Afrocentric enough.” This discriminatory remark from Gray suggests that Herling was prevented from performing per-session employment entirely because of his race. …
The “Afrocentric” remark was made by Gray, the decisionmaker, in direct relation to the issue in question, namely, whether Herling would be considered for per-session work. The only factor that weighs against the remark’s probative value is that it was made before the start of the 2009[-]10 school year, and Herling did not receive the U-rating until June of 2010. However, a reasonable juror could conclude that the remark was one example of discriminatory conduct by Gray against Herling that lasted throughout the school year based on this and the other discriminatory remarks.
Plaintiff also introduced “evidence of disparate treatment between himself and similarly-situated African American colleagues”, namely, “five African American teachers’ personnel files who he says have attendance and tardiness problems comparable to his own, and he shows that these teachers received S-ratings for attendance.” He also presented “evidence that Gray displayed a pattern of discriminatory conduct by awarding per-session work to African American employees over white employees.”
This sufficiced to establish, at the summary judgment stage, a prima facie case of discrimination.
Defendants met their burden of producing a legitimate, nondiscriminatory action for the challenged employment action; namely, plaintiff’s “lateness, entering and exiting the building without permission, and failing to comply with the requirements of the physical fitness exam.”
The court next turned to the final stage of the analysis:
To avoid summary judgment after the defendants have set forth a nondiscriminatory reason for the U-rating, Herling must show that the employer was more likely than not motivated by a discriminatory reason or that the employer’s reason is unworthy of belief. This means that Herling needs to raise sufficient evidence for a reasonable jury to find his race and religion played a role in Gray’s decision to give him the U-rating.
The court held that plaintiff met this burden:
Herling has established that there is a genuine issue of fact requiring trial relating to the circumstances surrounding his U-rating. Because of Gray’s remarks that Herling was not “Afrocentric enough” for per-session work, and because Gray was quoted as saying volleyball was a white person’s sport, a reasonable juror could conclude that Gray was at least in part motivated to give Herling the U-rating to bar him from per-session work. Herling’s other racist comments to Gray about wearing a head covering and eating Kosher food also weigh in favor of a reasonable jury being able to find in Herling’s favor.