Wrongful Termination Claim, Based on Plaintiff’s Gender and Sexual Orientation, Survives Summary Judgment

n Rosalie v. Supreme Glass Co., Inc., 18-CV-02064, 2020 WL 6263311 (EDNY Oct. 23, 2020), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s sexual orientation-based hostile work environment claims under Title VII of the Civil Rights Act of 1964 and the New York City Human Rights Law. (The court also denied defendant’s motion for summary judgment on plaintiff’s hostile work environment claims; I wrote about that aspect of the decision here.)

Beginning with plaintiff’s claim under Title VII, the court summarized the “burden-shifting framework” applicable to such claims:

Title VII discrimination claims are analyzed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, a plaintiff must establish a prima facie case by demonstrating that (1) he is a member of a protected class; (2) his job performance was satisfactory; (3) he suffered adverse employment action; and (4) the action occurred under conditions giving rise to an inference of discrimination. Second, if a plaintiff makes a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the action. Third, the burden shifts back to the plaintiff to show “that the employer’s proffered reason is pretextual. [Citations and internal quotation marks omitted.]

After concluding that plaintiff made out a prima facie case and that defendant proffered a legitimate, non-discriminatory reason for plaintiff’s termination (poor performance), the court turned to the question of pretext.


Under the third and final McDonnell Douglas step, Rosalie must demonstrate that Supreme’s proffered reason is pretextual. Pretext can be shown “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered legitimate, nonretaliatory reasons for its action. From such discrepancies, a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). A “rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).

Here, plaintiff provided three reasons for discrediting defendant’s proffered reasons: (1) defendant’s varying explanations for termination; (2) procedural irregularities; and (3) a dearth of evidence concerning plaintiff’s deficient performance.

The court held that “[w]hile these arguments might fall short individually, in the aggregate, they satisfy Rosalie’s burden.”

It elaborated:

Perhaps most problematic, Supreme offers what appears to be a post hoc explanation for Rosalie’s dismissal. At the time of his termination, Rosalie was told that he “failed to ‘include notes on various orders.’ ” Supreme now contends that multiple vendors and customers refused to work with him. In support of its motion, Supreme offers a spreadsheet—created by Miranda after this action began—which purportedly lists those customers. Curiously, there is little indication that the customers’ refusal to work with Rosalie served as a basis for his termination in June 2017. In fact, at her deposition, Miranda denied informing Rosalie or Eschelbacher of the complaints she received. Even more telling, Miranda admittedly created the spreadsheet in order “to protect myself and my job” once she learned of this lawsuit. This after-the-fact explanation is suggestive of pretext. …

Supreme’s uneven enforcement of its employment policies is further evidence of pretext. Supreme’s handbook provided a progressive system of discipline for underperforming employees: a verbal warning for the first offense, a written warning for the second, and termination for the third. According to the handbook, Rosalie should have received a written warning prior to his termination in June 2017. Instead, he was immediately terminated after a verbal warning, in conflict with the procedures set forth in the handbook. Meanwhile, Miranda was afforded greater lenience. Although the handbook called for her suspension and termination after her second and third offenses, she only received warnings. This differential treatment—lenience in one instance and harsh enforcement in another—strengthens an inference of pretext.

It also bears noting that the evidentiary support for Rosalie’s poor performance is thin. Despite Rosalie’s near three-year tenure at Supreme, it is somewhat unbelievable that Supreme cannot substantiate its position with further non-testimonial evidence. Instead, Supreme depends almost entirely on Miranda’s and Eschelbacher’s testimony that Rosalie made numerous mistakes. Rosalie’s testimony, of course, contends that his performance was adequate—leaving significant credibility determinations for the jury. [Citations omitted.]

Based on this, the court held that plaintiff’s Title VII claim survives summary judgment.

Because plaintiff’s claim survived under Title VII, his claim necessarily survived under the less stringent New York City Human Rights Law, which requires only “differential treatment,” namely, that plaintiff is “treated less well because of a discriminatory intent.”

Share This: