Section 1981 Race Discrimination Claim, Asserted by HIspanic Plaintiff, Survives Summary Judgment Against SL Green Realty Corp.

In Bell v. SL Green Realty Corp., 19 Civ. 8153 (LGS), 2022 WL 2819054 (S.D.N.Y. July 19, 2022), the court, inter alia, denied defendant’s motion for summary judgment dismissing plaintiff’s claim of race-based discriminatory termination asserted under 42 U.S.C. § 1981.

As to that claim, the court applied the well-known 3-step burden-shifting framework, derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as follows:

It is undisputed that Plaintiff is Hispanic and therefore a member of a racial minority for purposes of § 1981. See Vill. of Freeport v. Barrella, 814 F.3d 594, 604 (2d Cir. 2016). Defendant does not argue that Plaintiff was not qualified for the position, which Plaintiff held for at least seven years until the Manager began supervising Plaintiff. It is also undisputed that she was terminated, which constitutes an adverse employment action. See Vega, 801 F.3d at 79.

The record evidence supports a prima facie case that Plaintiff’s termination occurred under circumstances giving rise to an inference of discriminatory intent. Plaintiff testified to various forms of discriminatory treatment by the Manager, who was her direct supervisor. She testified in her deposition that the Manager enforced the uniform and clock-in policy more strictly against Hispanic employees compared to her Caucasian colleagues. Plaintiff also testified that, when asked why Plaintiff had to kneel to clean the legs of a chair and a table, the Manager said: “That’s what I have YOUR people for, not mine.” On another occasion, the Manager stated that “no Hispanics should be given attention to.” Drawing reasonable inferences in favor of Plaintiff, including that Plaintiff’s supervisor was at least partially responsible for her termination, the evidence is sufficient to support a prima facie inference of discriminatory animus.
Defendant argues that Plaintiff’s own allegations and testimony are insufficient to support an inference of discrimination. This assertion is incorrect. “In discrimination cases, the only direct evidence available very often centers on what the defendant allegedly said or did. Since the defendant will rarely admit to having said or done what is alleged, and since third-party witnesses are by no means always available, the issue frequently becomes one of assessing the credibility of the parties. At summary judgment, however, that issue is necessarily resolved in favor of the nonmovant.” Walsh v. N.Y.C. Housing Auth., 828 F.3d 70, 80 (2d Cir. 2016) (quoting Danzer v. Norden Systems, Inc., 151 F.3d 50, 57 (2d Cir. 1998)); see also Yang v. Navigators Grp., Inc., 674 F. App’x 13, 14 (2d Cir. 2016) (summary order) (holding that plaintiff’s own testimony should not be excluded as self-serving because it is admissible evidence). “There is nothing in [Rule 56] to suggest that nonmovants’ affidavits alone cannot — as a matter of law — suffice to defend against a motion for summary judgment.” Danzer, 151 F.3d at 57.

A prima facie case having been established, the burden shifts to SL Green to provide a neutral reason for the termination. SL Green provides such reason. SL Green proffers evidence — through testimony and other records of warning notice — that Plaintiff was terminated because she “failed to follow instructions[,] was excessive[ly] late[ ], and displayed a blatant disregard for authority, resulting in her being issued at least seven warning notices, two suspensions without pay and, ultimately, termination of her employment.”
*4 Because SL has provided a neutral reason, the burden shifts back to Plaintiff to proffer evidence from which a reasonable jury could conclude that Defendant’s proffered reason is pretext for discrimination. Viewed in light most favorable to Plaintiff, the evidence as a whole is sufficient to permit a rational fact finder to infer that, had Plaintiff not been Hispanic, she would not have been terminated. See Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (citation omitted) (“The court’s role in evaluating a summary judgment request is to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive.”).

The record reflects the Manager’s animus toward Hispanic people, and toward Plaintiff as a Hispanic person, as evidenced by the Manager’s blatantly racist alleged remarks to Plaintiff (which are assumed to be true for the purpose of this motion). Plaintiff had a long history of employment with the employer, and the termination followed alleged discriminatory conduct by the relatively new Manager. Plaintiff was hired to work at 420 Lexington Avenue in March 2005; the Manager became her supervisor in September 2012. Plaintiff was terminated in November 2015, after a series of incidents of “insubordinate behavior,” starting in October 2013. A reasonable jury could conclude that reports of Plaintiff’s “insubordinate behavior” were exaggerated or that the behavior was provoked by the hostile Manager for discriminatory reasons. As the Second Circuit observed in a case with a “backdrop of continuing antagonism,” “[t]hose allegations establish a drumbeat of retaliatory animus from which a plausible inference of causation can be drawn.” Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018).

The Second Circuit has “repeatedly expressed the need for caution about granting summary judgment to an employer in a discrimination case where, as here, the merits turn on a dispute as to the employer’s intent.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008); accord Zeng v. N.Y.C. Housing Auth., No. 18 Civ. 12008, 2022 WL 37131 (S.D.N.Y. Jan. 3, 2022); see also MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d 546, 557 (S.D.N.Y. June 11, 2012) (“The issue of intent in a[n] [employment] discrimination case presents a classic jury question.”). At summary judgment, a genuine dispute of material fact “is necessarily resolved in favor of the nonmovant” even if the nonmovant only provides “self-serving” evidence. Walsh, 828 F.3d at 80. “It is the finder of fact, not the district court ruling on summary judgment, who must determine the weight and credibility to accord [Plaintiff’s] evidence regarding [Defendant’s] statement.” Id. at 80. Defendant’s summary judgment of the discrimination claim for Plaintiff’s termination is denied.

The court did, however, grant defendant’s motion for summary judgment on plaintiff’s § 1981 claim based on denial of her 2014 bonus, since that claim was, per the court, time-barred.

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