In a recent case, Ilana Gamza-Machado De Souza v. Planned Parenthood Federation of America, Inc., et al, 21 Civ. 5553 (LGS), 2023 WL 2691458 (S.D.N.Y. March 29, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s (a Jewish woman) claims of race- and religion-based discriminatory termination, in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
Initially, the court considered the impact of plaintiff’s advocacy for a Jewish Employee Resource Group (ERG) relative to defendants’ apparent issues with plaintiff’s performance:
The timing and context of the “performance” concerns Defendants cite gives rise to an inference that they were pretextual or at least bound up with Plaintiff’s race and religion. Specifically, Moreno never raised performance concerns with Plaintiff before she started advocating for the creation of a Jewish ERG. Moreno first gave Plaintiff written negative feedback the same day Plaintiff first met with Walker to initiate the ERG process in earnest.
While there is no evidence that Walker was involved in Plaintiff’s firing, as discussed below, his comments are revealing, whether they arose from overt anti-Semitism or ignorance. Walker’s comments to Plaintiff and Squires about the proper role of a Jewish ERG reasonably can be read to express skepticism about whether a Jewish ERG with a focus on anti-Semitism was really necessary or important, at a time shortly after the killing of George Floyd when there was a heightened focus on anti-Black racism and other racial and social justice issues.
Walker’s comments lend context to Moreno’s comments around the same time. Moreno discussed Plaintiff’s efforts to create the Jewish ERG with another colleague, Jamilla Galloway. Moreno expressed skepticism that Plaintiff should dedicate time to creating an ERG when her performance of her job duties was slipping. In the same conversation, however, Moreno connected Plaintiff’s effort to create an ERG with her purported insensitivity to other racial justice issues on which her colleagues were focused.
Defendants also suddenly expressed renewed interest in the Jewish ERG immediately upon receiving notice of Plaintiff’s EEOC complaint, after a period of relative dormancy. That fact may raise an inference that Defendants’ support of the group now is not genuine. While Defendants offer innocent, non-discriminatory explanations for each of these issues, it is the jury’s role to decide whether those are more convincing than Plaintiffs’ explanations. A reasonable jury could infer that Plaintiff was fired in part because Defendants were skeptical of the need to dedicate resources to addressing concerns of Jewish employees and Jewish people.
Next, the court cited an alleged anti-Semitic remark made by one of the people (Moreno) who made the decision to fire plaintiff. Specifically, held the court, “Moreno’s remark that an old Jewish woman should not run a ‘multicultural’ department could be read as expressing the view that at least certain Jewish people were not the best messengers to [defendant]’s diverse constituencies.”
It was not dispositive that Moreno was Jewish, explaining that its finding that “a reasonable jury could find that Moreno fired Plaintiff in part because she is Jewish … would not require questioning or discounting Moreno’s Jewish identity; rather, Moreno simply may not view her Jewish identity in the same way as Plaintiff and may not view herself and all Jewish people as similar in all relevant respects.”
Finally, the court cited other factors contributing “to an inference that Plaintiff’s performance was not the only reason for her firing and was in part a cover for discrimination,” namely, that: (1) defendants’ “decision not to place Plaintiff on a PIP, or more thoroughly document purportedly pervasive performance issues, arguably constitutes a deviation from regular procedures”; (2) defendants’ “shifting explanations” for plaintiff’s termination; and (3) the potential inapplicability of the “same-actor inference” (due to the fact that, for example, there was no evidence that defendants’ knew that plaintiff was Jewish when she was hired, as well as substantially-changed circumstances in the year between plaintiff’s hiring and firing).