From Johnson v. Schmid et al, 2018 WL 4261672 (2d Cir. Sept. 7, 2018) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s race discrimination claim.
From the Order:
First, a plaintiff may establish an inference of discrimination by establishing “that a similarly situated employee not in the relevant protected group received better treatment,” but “those employees must have a situation sufficiently similar to plaintiff’s to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” McGuinness v. Lincoln Hall, 263 F.3d 49, 53-54 (2d Cir. 2001). “Whether two employees are similarly situated ordinarily presents a question of fact for the jury,” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000), but here no reasonable jury could conclude that Johnson was sufficiently similar to the purported comparators. They were instructors while he was a social worker trainee — they were supervisors, and he was their student. Hence, they were not similarly situated as a matter of law.
Second, Johnson has not proffered evidence to support his argument that he was subjected to different performance criteria than his coworkers. Johnson contends that he was required to collect information on his Family Case Plans that his coworkers were not required to collect.1 Even assuming that these requirements for collecting information constitute performance criteria, there is no evidence to support the inference that any different requirements resulted from impermissible race-based discrimination, rather than differences in the cases themselves. Moreover, Johnson provides only two comparators, one of whom was Hispanic, and the other of whom was also African-American.
Third, as for the derogatory racial slur, Johnson averred for the first time in opposing summary judgment that Blue told him, in response to Johnson’s suggestion that he might file a lawsuit, “[A]re you threatening me boy?” App. 355 ¶ 41 (emphasis added). A party may not defeat summary judgment “by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony,” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996), particularly where the contradiction “is left unexplained — indeed, is inexplicable,” In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 194 (2d Cir. 2013) (per curiam). Johnson’s previous characterization of Blue’s statement, made in response to interrogatories, omitted the word “boy,” and he has not even attempted to explain his initial omission of the racial epithet that he now relies on as key proof of race discrimination. Moreover, Johnson has not pointed to any other purportedly racist remarks, see Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) (“'[S]tray remarks’ alone do not support a discrimination suit.”). Thus, Johnson’s new allegation regarding Blue’s use of a purported racial epithet does not raise a genuine issue for trial.
Finally, even setting aside the client complaint Johnson alleges was improperly solicited by Schmid, the Department proffered extensive and largely undisputed evidence showing that Johnson was a poor performer, including reports of his disruptive behavior in classrooms in September 2010; a November 30, 2010 memorandum from his supervisor documenting concerns with his written narratives; a March 31, 2011 memorandum detailing “ongoing concerns” with his performance; and two evaluations reflecting concerns with certain aspects of Johnson’s performance.