Race-Based “Pretext” Employment Discrimination Claim Survives Summary Judgment

In Milord-Francois v. New York State Office of the Medicaid Inspector General et al, No. 20-3646-cv, 2022 WL 480477 (2d Cir. Feb. 17, 2022), the court, inter alia, vacated the district court’s award of summary judgment on plaintiff’s race discrimination claim under Title VII of the Civil Rights Act of 1964.

From the decision:

Milord-Francois claims that she raises a triable issue as to whether racial discrimination contributed to her demotion. She argues that Daniels-Rivera, also a black woman, “demoted Milord after she refused to ignore Henzel’s discrimination” and thus imposed on Milord-Francois “a type of racial stereotyping” which includes “[t]he belief that black people must excuse racism to advance their careers.” The questions before us are whether Milord-Francois met her burden at the prima facie stage; if so, whether Defendants proffered a legitimate, non-discriminatory reason for Milord-Francois’s demotion (namely, poor performance); and if so, whether Milord-Francois raised a factual dispute as to whether racial discrimination was a motivating factor for, or a but-for cause of, that decision.

First, although the question is close, we conclude that Milord-Francois has established a prima facie case of discrimination based on race in light of Daniels-Rivera’s statements to “accept” and “deal with it,” made in response to Milord-Francois’s complaints of Henzel’s racist comments. Although those statements may very well have been intended to convey to Milord-Francois nothing more than a view that she had a responsibility as a manager to address racially charged comments by a subordinate, there is just enough ambiguity in those statements—given the particular facts of this case, and viewed in the light most favorable to the non-moving party—to create a genuine issue of material fact as to whether Daniels-Rivera was instead perpetuating a racial stereotype by suggesting that Milord-Francois, as a black woman, should ignore racism.

Second, we conclude that Defendants have met their burden in providing a legitimate, nondiscriminatory reason for demoting Milord-Francois: her unsatisfactory performance as an Associate Attorney. In deciding whether a defendant articulated a sufficient nondiscriminatory reason for an adverse action, we do not “assess the credibility of the[ ] witnesses; nor … determine whether the [defendant’s] explanation of its action is convincing. Instead, we ask whether [the] defendant has introduced evidence that, ‘taken as true, would permit the conclusion that there was a nondiscriminatory reason.’ ”

Third, Milord-Francois raises several arguments as to why a jury could conclude, by a preponderance of the evidence, that this reason was pretextual. We are unpersuaded by most of Milord-Francois’s arguments, but viewing the evidence in the light most favorable to the non-moving party, we conclude that there is a genuine issue of material fact as to what Daniels-Rivera meant when she told Milord-Francois to “accept” and “deal with it.” Milord-Francois has “raised sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence” that Daniels-Rivera’s reason for demoting her is pretextual, and that this decision “was based, at least in part,” on her race.

[Cleaned up.]

Accordingly, the court vacated the district court’s grant of summary judgment against Milord-Francois with respect to her NYSHRL claim against Daniels-Rivera, and her Title VII claim against OMIG, and remanded for further proceedings on those two claims.

The court did, however, dismiss several of plaintiff’s other claims, such as her claim based on a “cat’s paw” theory; her “racial stereotyping” claim asserted under 42 U.S.C. § 1983; her retaliation claim; and her hostile work environment claim.

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