A First Department case, Cadet-Legros v. New York Univ. Hosp. Ctr., 2015 NY Slip Op 08984 (App. Div. 1st Dept. Dec. 8, 2015), held that defendants were entitled to summary judgment dismissing plaintiff’s race discrimination cause of action under the NYC Human Rights Law.
This case offers guidance on how courts evaluate motions for summary judgment in employment discrimination cases under the New York City Human Rights Law:
[A] discrimination plaintiff must produce enough evidence to preclude the moving defendant from being able to prove that (1) no issues of material fact have been placed in dispute by competent evidence, and (2) a reasonable jury (resolving all inferences that can reasonably be drawn in favor of the non-moving party) could not find for the plaintiff on any set of facts under any theory of the case. …
[T]he only substantive requirement in a City HRL case where the plaintiff goes the pretext route is for the plaintiff to produce some evidence to suggest that at least one reason is false, misleading, or incomplete. A plaintiff who satisfies this requirement may well have produced less evidence than would be required under the state and federal laws. But he or she will have produced enough evidence to preclude the defendant from proving that no reasonable jury could conclude that any of the defendant’s reasons was pretextual. In other words, the general evidentiary standard comfortably co-exists with the distinctive substantive framework that must be applied to City HRL claims.
Applying the law, the court held that the motion court erred in finding issues of fact as to pretext or racial motivation in plaintiff’s termination. For example, while the affidavit praised the quality of plaintiff’s work, it was not evidence of pretext because defendant did not complain about plaintiff’s “technical performance”, but rather took issue with plaintiff’s “insubordination and disruptive behavior.”
The court also held that plaintiff “failed to raise an issue of fact as to whether her supervisors’ use of the phrase a ‘leopard does not change its spots’ or the term ‘tirade’ amounted to racially coded language.”
It is true that discrimination seldom announces itself openly[.] … For that reason, it is important that discrimination plaintiffs be permitted to present a wide range of indirect evidence of discrimination, including the fact that a defendant (or its agent or employee) used coded language, that is probative of discriminatory intent. While some language is unmistakably reflective of the presence of race or other protected class status in the mind of the speaker, in many other cases meaning is context-dependent, as the motion court correctly pointed out. It is not enough, however, to state that meaning is context-dependent. A court considering a motion for summary judgment must actually examine the statement, and in some cases its historical usage, in addition to the context in which it is used. If a defendant moving for summary judgment fails to prove that no reasonable jury could conclude that the statement in context was coded racial language, then summary judgment must be denied. Conversely, if a plaintiff fails to offer evidence that could lead a reasonable jury to conclude that the statement in context actually reflected the speaker’s use of the language in a racially coded manner, then summary judgment must be granted to defendant.
The court explained why, in context, the “leopard” comment did not evidence race discrimination:
The record contains two emails in which plaintiff’s supervisors used some variation of this expression. Plaintiff points out that, at the turn of the 20th century, the phrase was used in a racist fashion in a novel by Thomas Dixon, Jr. (The Leopard’s Spots ) and in a Joseph Rudyard Kipling tale (Just So Stories, How the Leopard Got his Spots ). However, plaintiff offered no evidence from which to infer that the expression is imbued with racial meaning in contemporary parlance. In fact, today it is commonly understood to mean that a person’s pattern of behavior tends not to change (see Random House Dictionary of America’s Popular Proverbs & Sayings 201 [2d ed 2006] [“Human nature is as fixed and unchanging as the spots on a leopard’s skin”]; The American Heritage Dictionary of Idioms 265 [2d ed 2013]). The racially derogatory meaning the expression “a leopard does not change its spots” may have had more than 100 years ago is too attenuated, without more, to permit a discriminatory meaning to be imputed to a speaker whenever the expression is uttered today.
[O]n the evidence in the record, defendant’s use of the language in reference to plaintiff is only consistent with the view, frequently expressed by defendant’s employees and having no apparent reference to race whatsoever, that plaintiff was someone who, when faced with criticism or discipline, would reflexively argue that she was being treated unfairly or unjustly. A jury could not reasonably conclude that plaintiff’s supervisors intended to employ the phrase in a racially charged manner.
The court concluded that plaintiff’s retaliation claim was properly dismissed:
[T]he evidence is abundant and uncontroverted that, before plaintiff made her internal complaint, she was hanging on by a thread, and that she was still employed only because defendant, far from conspiring to get rid of her, continued to try to see if she could be made to understand what was required of her. After plaintiff made the complaint, the same type of conduct that had previously produced final warnings and poor evaluations continued. A reasonable jury could not conclude that any causal connection existed between plaintiff’s internal complaint and her discharge.