Sex Discrimination Claims Survive Summary Judgment; Pretext Evidenced By Inconsistency Between Proffered Termination Reasons

In a recent case, Austin v. Phone2Action, Inc., 21-CV-491 (MKB), 2023 WL 6201409 (E.D.N.Y. Sept. 22, 2023), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s gender discrimination (termination) claim asserted under Title VII of the Civil Rights Act of 1964.

In evaluating this claim, the court applied the well-known McDonnell-Douglas burden-shifting framework.

In sum, the court held that “[a]lthough Defendants have articulated legitimate, nondiscriminatory motives for the decision to terminate, the Court finds a reasonable jury could find that those given reasons are pretext for discriminatory intent.”

Here is the court’s explanation of the third step, pretext:

While Defendant now argues that the company decided to terminate Plaintiff because (1) her employers had perceived a decline in her job performance in the spring of 2020, (Def.’s Mem. 17–19; Def.’s Reply 4–5), and (2) Plaintiff refused to work with her direct supervisor, (Def.’s Mem. 18–19), Defendant has provided inconsistent explanations for the decision to fire Plaintiff. Defendant initially claimed that Plaintiff’s declining performance was the “sole reason” for her termination, (Equal Employment Opportunity Commission Response, annexed to Robert Glunt Decl. as Ex. M, Docket Entry No. 25-7); the head of HR stated that Plaintiff was terminated due to her declining performance and because she expressed concerns about working with Morgante, (Shelli Holland Dep. (“Holland Dep.”) 78:14–23, 89:25–90:18, annexed to Joseph E. Field Decl. as Ex. I, Docket Entry No. 24-12); and the CEO testified that Plaintiff was not terminated for performance reasons,5 (Ory Dep. 119:22–120:9, 122:2–8). Further, while the CTO testified that he discussed with Morgante the possibility of terminating Plaintiff, (Siddiqui Dep. 105:14–16), Morgante testified the CTO did not discuss this with him and stated that he was surprised to hear about the decision after the fact, (Morgante Dep. 255:17–256:10). Moreover, while the head of HR testified that the CTO told her that he wanted to terminate Plaintiff for performance problems before Plaintiff complained about Morgante, (Holland Dep. 90:4–18), the CTO testified that he did not consider terminating Plaintiff until after Plaintiff sent the rebuttal to Morgante’s email and did not recommend Plaintiff’s termination until after Plaintiff had her one-on-one meeting with the head of HR where she complained about Morgante, (Siddiqui Dep. 119:16–24, 123:16–21). As Plaintiff argues, the inconsistency between the proffered justifications for her termination constitutes evidence of pretext. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 137 (2d Cir. 2000) (“The inconsistency between the justifications offered for [the plaintiff’s] dismissal in the two proceedings raises a genuine issue of material fact with regard to the veracity of this non-discriminatory reason.”). In addition to these inconsistent explanations and justifications for Plaintiff’s termination, the evidence that the CTO, one of the decisionmakers, made a discriminatory remark to another female employee around the same time Defendant terminated Plaintiff from her position, and evidence that a different female employee had complained to HR that she believed the CTO treated her dismissively and disrespectfully because of her gender and race provide further evidence of pretext.6 See Shimanova v. TheraCare of New York, Inc., No. 15-CV-6250, 2017 WL 980342, at *4 (S.D.N.Y. Mar. 10, 2017) (“[E]vidence of discrimination against other employees may be relevant to proving discrimination.” (citing Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008))).

Based on this, the court concluded that “a reasonable jury could conclude that Defendant’s proffered reasons for Plaintiff’s termination are pretext and that Plaintiff’s termination was based, at least in part, on discriminatory intent. The Court therefore denies Defendant’s motion as to Plaintiff’s Title VII discrimination claim.”

Furthermore, having denied defendants’ motion under Title VII, the court likewise denied defendants’ motion for summary judgment as to plaintiff’s claims of gender discrimination under the “more lenient” New York State and City Human Rights Laws.

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