In Crowley v. Billboard Magazine, No. 19-cv-7571, 2021 WL 6033608 (S.D.N.Y. Dec. 21, 2021), the court granted defendant’s motion for summary judgment dismissing plaintiff’s claims of sexual orientation discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
This decision teaches that, generally speaking, a proffered “legitimate non-discriminatory” reason for an adverse employment action need not be specifically prohibited by an explicit company policy in order for it to justify the challenged action and defeat a claim of unlawful discrimination.
After determining that the plaintiff failed to make out a prima facie case of discrimination, the court turned to the second step of the discrimination analysis, namely, whether the defendant proffered legitimate, non-discriminatory reasons for the termination.
As to that point, the court explained:
Moreover, the undisputed evidence demonstrates that there were legitimate, non-discriminatory reasons for the plaintiff’s termination. “[U]nprofessional conduct is a legitimate, non-discriminatory reason for terminating an employee.” Edwards v. City of New York, No. 03-cv-9407, 2005 WL 3466009, at *15 (S.D.N.Y. Dec. 19, 2005); see also Hengjun Chao v. Mount Sinai Hosp., No. 10-cv-2869, 2011 WL 1097535, at *6 (S.D.N.Y. Mar. 22, 2011) (granting summary judgment dismissing a discrimination claim advanced by a plaintiff who had “committed research misconduct and violated professional or ethical standards”); Lessey v. Broadway Elec., No. 08-cv-3884, 2009 WL 3755471, at *5 (S.D.N.Y. Nov. 2, 2009).
The plaintiff admits that he sent sexually charged messages to an artist whom he was covering for Billboard and over whom he had editorial discretion. Brown, Capra, and Goldsmith testified that this conduct was unethical, inappropriate, and violative of standard practices in the journalism industry. 56.1 Reply ¶¶ 73-75. There does not appear to be any evidence in the record that that contradicts this testimony. Instead, the plaintiff argues that the defendants’ termination of him was not justified because Billboard witnesses were unable to identify written Billboard policies that specifically proscribed the plaintiff’s conduct.
The plaintiff’s argument fails. The plaintiff has not cited any authority that requires an employer to delineate, in a written policy, every possible activity that could lead to an employee’s termination. Here, the undisputed evidence demonstrates that that the plaintiff’s conduct violated established industry norms, ethics, and standards of professionalism. This is a sufficient showing that the defendants had legitimate, non-discriminatory reasons for the plaintiff’s termination.
As to the next step in the analysis, pretext, the court explained:
Additionally, any argument that the proffered reasons for the plaintiff’s termination are pretextual is without merit. The burden of establishing pretext is higher than the burden required to establish a prima facie case. Lessey, 2009 WL 3755471, at *6 (citing Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir. 1985)). An employer is entitled to summary judgment unless the plaintiff has produced “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action.” Holmes v. Astor Servs. for Children & Families, No. 16-cv-2260, 2017 WL 3535296, at *4 (S.D.N.Y. Aug. 16, 2017).
Thus, the court concluded that “[f]or the same reasons that the plaintiff failed to make out a prima facie case, the plaintiff cannot satisfy this burden.”