In a recent case, Tenecora et al v. Ba-Kal Restaurant Corp., d/b/a Princess Diner et al, 18-cv-7311, 2021 WL 424364 (E.D.N.Y. Feb. 8, 2021), the court adopted a Magistrate Judge’s Report & Recommendation granting plaintiff’s motion for default judgment on their employment discrimination and hostile work environment claims.
The court explained the difference between “direct” and “indirect” evidence in the context of employment discrimination claims:
Employment discrimination claims can be borne out through direct or indirect means. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Vega, 801 F.3d at 87. “ ‘Direct’ and ‘indirect’ describe not the quality of the evidence presented, but the manner in which the plaintiff proves his case.” Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1185 (2d Cir. 1992). “ ‘Direct evidence’ of discrimination is something of a misnomer”; it is best understood in contrast with what “makes out a McDonnell Douglas prima facie case[, which is] evidence from which an inference of discrimination arises only because ‘it eliminates the most common nondiscriminatory reasons for the plaintiff’s rejection,’ and which inference is therefore immediately dispelled once the employer has produced evidence of a nondiscriminatory reason.” Cartagena v. Ogden Servs. Corp., 995 F. Supp. 459, 462 (S.D.N.Y. 1998) (Sotomayor, J.) (quoting Texas Dep’t of Comm. Affs. v. Burdine, 450 U.S. 248, 254 (1981)). Simply, direct evidence exists where “an impermissible criterion,” like race, “was in fact a ‘motivating’ or ‘substantial’ factor in the employment decision.” de la Cruz v. N.Y.C. Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996) (emphasis in original) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)).
Direct evidence need not be the “proverbial smoking gun, i.e., an unequivocal statement by an employer that an employee is being terminated for an impermissible reason.” Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 768–69 (S.D.N.Y. 2002) (citing Cartagena, 995 F. Supp. at 462). “Rather, direct evidence is evidence ‘directly reflecting the alleged discriminatory attitude.’ ” Id. (emphasis in original) (quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997)). It can take the form of “a workplace policy, practice or decision [that] relies expressly on a protected characteristic” or “conduct or statements by persons involved in the decisionmaking process.” Young v. United Parcel Serv., 575 U.S. 206, 135 S.Ct. 1338, 1345 (2015); Lightfoot, 110 F.3d at 913; Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). A pervasive use of racial slurs and derogatory language can directly evidence discriminatory animus. E.g., Bonilla v. City of New York, 2019 WL 6050757, at *13–14 (S.D.N.Y. 2019) (supervisor repeatedly calling plaintiff an alleged racial slur evidenced “direct discriminatory animus” sufficient to defeat summary judgment); Azar v. TGI Friday’s, Inc., 945 F. Supp. 485, 498–99 (E.D.N.Y. 1996) (holding a “pattern of ridicule,” comprised of anti-Iranian slurs, “obscenities[,] and derogatory terms” used “in a hazing manner[,]” was “direct evidence of discriminatory animus”); see also, Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861–62 (5th Cir. 1993) (“Pippen’s routine use of racial slurs constitutes direct evidence that racial animus was a motivating factor in the contested disciplinary decisions,” not “an innocent habit…. [T]he term [n—–] is a universally recognized opprobrium, stigmatizing African-Americans because of their race.”).
Applying the law, the court explained:
Here, Plaintiffs plead discrimination “directly” through Defendants’ alleged statements and acts, which undoubtedly reflect an attitude discriminatory against Latino/as. Defendants’ regular insults and ethnic slurs, e.g., Compl. ¶¶ 14–15, 37–38, 64–65, 75–77, 85, 102, 115, 132, created a “climate of disrespect and disdain for labor contributions compared to non-Latino employees.” Id. ¶ 47; e.g., id. ¶ 71 (if Plaintiff Barrientos tried to eat “food other than that which was permitted,” his supervisor would remark, ‘[Y]ou don’t get to eat that food in your country, so why should you get to eat it here?’ ”); id. ¶ 72 (“Kalogeras … dissuade[d] Latino/a employees] from reporting Defendants’ abusive and discriminatory behavior by telling them, ‘if you complain (about my treatment), I will call immigration officials on you.’ ”); see also, e.g., id. ¶¶ 5, 74, 92, 101, 112, 115, 132. Many of these statements do not expressly mention, and therefore are facially unconnected to, Defendants’ withholding of wages – which forestalled the R&R from inferring discriminatory intent in the wrongful nonpayment. Nevertheless, these statements provide the backdrop against which the rest of the case is viewed; they are “the relevant background evidence … shedding light on Defendants’ motivation and thus bolster[ing] [the] claim that Defendants treated [Plaintiffs] differently” on account of race. Vega, 801 F.3d at 88.
Understood in this setting, one of Defendants’ statements displays, if not a “smoking gun,” then a “thick cloud of smoke” of direct evidence that Defendants withheld Plaintiffs’ wages with discriminatory intent.